A Practical Treatise On The Law of Covenants For Title (1860)

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presented to
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PRACTICAL TREATISE
ON
THE LAW
OF
COYENANTS FOR
TITLE,
BY
WILLIAM HENKY KAWLE.
THIRD EDITION, REVISED AND ENLARGED.
BOSTON:
LITTLE, BROWN AND COMPANY
1860.
Entered according to Act of Congress, in the year I860,
By WILLIAM HENRY RAWLE,

in the Clerk's Office of the District Court of the United States for the Eastern
District of Pennsylvania.
RIVERSIDE, CAMBRIDGE:
PRINTED BY
II.
O.
HOUGHTON AND COMPANY.
PKEFACE TO THE THIRD EDITION.
IN the preparation of this edition, the former treatise
ties
has been carefully revised, and

published
to
up
all
the present time
the authori-
have
been
a slight reduction in the size of
incorporated.
By
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.
cy,
With the view of
he has re-consulted
cited in the work.

PHILADELPHIA, June,
1860.
attaining greater accura-
every authority previously
PREFACE TO THE FIRST EDITION.
THIS work
devoted to the
is
consideration of the
and rights of vendors and purchasers of

estate, arising from their Covenants for Title.
liabilities
real
As such covenants
are, in
some shape or form,
duced into nearly every conveyance of real
on both
intro-
estate,
hoped that the

Profession may not deem unnecessary a work which
has for its object their analysis and practical effect.
The
of the Atlantic,
sides
subject
is
in
is
believed to possess a peculiar im-
portance in this country.
language
it
In England, the elaborate
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
The covenant of warranty, moreover,

there almost unknown at the present day,
are expressed.
which
is
title
PREFACE.
VI
is
here more frequently employed than any other.
The
earlier settlers of
our colonies
country about the time

law,
which
may
when
left their
mother
modern system of
have had its rise at the
be said to
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
was
actions
out of use,
in use
The ancient warranty was nearly

and the modern covenants were not fully
one.
and at
this time, if
scanty authority
on the
we may judge from
subject,
the
covenant
the
of
warranty was introduced, and seemed to hold a middle ground between the old warranty on the one
hand, and the modern covenants on the other
although superseded in England by the
brought to
since,
this
throughout
latter, it
and
was
country by our ancestors, and has

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 introduction of covenants for
zin
the covenant for
title
sei-
the coveconvey
the covenant for quiet
the covenant of right to
nant against incumbrances
the covenant for further assurance

enjoyment
and the covenant of warranty, are considered in
detail
and separately, with the examination, in the
attributes
respective chapters, of the peculiarity .and
PREFACE.
of each
its
covenant,
to
which covenants
their
operation by
form,
Then
measure of damages.
Vll
for
way
run with the land
title
estoppel
ing the effect given to the words
and
tent
sell,"
to
by
may
for
title,
right
give
to
the
includ-
grant,
bargain,
and the ex-
whether express
be limited or qualified, either
the insertion of other covenants or
of a deed
title,
statutory local enactments,
which covenants
or implied,
or rebutter
of implied covenants for
the doctrine
and
considered the extent
is
of
scope,
definition,
by
by other clauses
the covenants which a purchaser has a

expect,
and which a vendor
liabilities
and covenantee, the
and
rights
heir,
tor or administrator, find
the
the
is
of the
devisee,
assignee
bound
to
covenantor
the
and
execulastly,
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.
CHAPTER
I.
THE ANCIENT WARRANTY, AND THE INTRODUCTION OF

COVENANTS FOR TITLE.
Warranty,
at
common
....
.......
law,
Modified by statutes de bigamis and of quia emptores,

Effect of warranty,
.....
........
......
2
3
Origin of collateral warranty,
Its effect,
Restrained by statute,
Remedy on warranty by
warrantia chartce and voucher,

Introduction of covenants for title,
.
.
Their number, object and advantages,
THE COVENANT FOR

Definition of seizin as distinguished from
Form
Doctrine that
Its origin,
it is
satisfied
title
.11
II.
SEIZIN.
and possession,
by an actual though
Applied also to covenant for right

Dissent from the doctrine,
to
convey,
.
.15
20
21
29
.30
21
.26
.
18
19
tortious seizin,
Sketch of those statutes
Reasons upon which it is supposed to have been based,

Probable source from champerty acts,
.
Effect of such statutes upon the covenants,
8
11
........
........
of the covenant,
Its definition,
CHAPTER
31
.38
CONTENTS.
Question whether, apart from their operation, the covenants are

broken by adverse possession,
.
.
.
.
Difficulties attendant
upon abstractly treating covenants
part of law of real estate,
.....
.
Scope of the covenant for seizin,

Its breach by adverse possession, easements, &c.
In pleading, sufficient to negative the words of the covenant,
.
Unnecessary to aver special damage,
.
Or
to set forth particulars of
Burden of
proof,
on
whom
paramount
it lies,
title,
51
.51
53
.54
54
.49
.
.
Measure of damages,
.
Ultimate measure of damages, the consideration-money and interest,
Evidence admissible to explain the true amount of the consideration,
.
Measure of damages when no consideration mentioned,
.
58
65
.69
limited by amount paid to purchase the paramount title,

.
Refusal to purchase, no bar to the recovery,
.
Damages how regulated when purchaser still in undisturbed posses.
.
only nominal damages are recoverable,
But their recovery will be a bar to a subsequent action,
veyed,
73
When
.74
........
....
Effect of recovery of the consideration-money
Reconveyance not necessary to recovery,

Effect upon the damages of acquisition of valid
sequent to the conveyance,
Measure of damages when the breach is

Average and relative value of the land,
title
.
76
76
by the vendor sub-
...
.
75
estate con-
upon the
partial,
Partial breach does not give the right to rescind the contract,
Limitations to the recovery of interest,

.
.
Costs and counsel fees incurred in adverse suit recoverable,
CHAPTER
71
.71
.55
57
Damages
sion,
45
for title as
.80
88
.90
92
.93
98
III.
THE COVENANT FOR GOOD EIGHT TO CONVEY.
When
When
synonymous with the covenant

introduced in place of
Its form,
for seizin,
Breach,
Pleadings and damages,
.105
.......
.
it,
105
.107
.108
108
CONTENTS.
XI
CHAPTER
IV.
THE COVENANT AGAINST INCUMBRANCES.

In England, generally supplementary to covenant for quiet enjoy-
.......
...
ment,
Effect of
this,
Its form,
Ordinary trustee covenant,

Breach of the covenant by
.109
.109
right of dower,
Pleadings,
.113
.125
.
only nominal damages are recoverable,
the breach is caused by existence of a term for
119
.
Rule as to exception of known incumbrances,
Purchaser's notice does not, in general, affect his right of action,
.
.
General rules as to measure of damages,
When
112
taxes, judgments, mortgages, &c.,
115
Roads,
Where
Where
110
...........114
Easements,
By
128
28
.134
137
or years,
life
.134
removed the incumbrance by purchase, the

.138
damages are measured by the amount paid,
the purchaser has
do not exceed the consideration-money,

Damages measured by the latter amount when the incumbrance has
138
.
entirely defeated the estate conveyed,
Local limitations in cases of mortgages where the right to redeem exists
142
Provided
it
after foreclosure,
General rules where the incumbrauce

Distinction
covenant
Its effect
146
a mortgage, '.
.141
between ordinary covenant against incumbrances, and a

to discharge
incumbrances,
upon the measure of damages,
The former
is
....
.
usually treated as a covenant of indemnity,
Jurisdiction of equity as to specific performance,
.
Exceptional cases upon principles of quia timet,
Or when incidental to the administration of assets,
.154
154
153
153
153
.158
Except, perhaps, where the covenants are contained in a voluntary
conveyance,
CHAPTER
.160
V.
THE COVENANT FOR QUIET ENJOYMENT.
.......
Its definition,
Form,
.163
163
CONTENTS.
Xll
In ground-rent deeds,
When
limited to the acts of the grantor,
Rule that the covenant does not extend

Its exceptions,
.164
to tortious interruptions,
Construction of the words by which the covenant
is
.164
165
.167
.
usually limited or
......
........
.
qualified,
.172
Breach of the covenant,

Pleadings,
Burden of proof,
Damages,
CHAPTER
181
.183
180
183
VI.
THE COVENANT FOR FURTHER ASSURANCE.
........
Advantage of this covenant,

Its
form,
What
acts are
demandable under
Must be necessary and
it,
.185
.186
practicable,
Jurisdiction of equity in enforcing
its specific
Usual course
performance,
Pleadings,
Breach,
to obtain fulfilment of the covenant,
187
^188
Removal of incumbrance, &c., may be required,

Whether after acquired estate may be required to be conveyed,
Covenants not demandable in deed of further assurance itself,
.
185
188
188
196
.196
........
.
CHAPTER
.197
199
200
VII.
THE COVENANT OF WARRANTY.

it and the old
warranty,
Not always synonymous with covenant for quiet enjoyment,
Distinction between
.204
......
....
........
.
The covenant of non-claim,

Form of the covenant of warranty,
221
222
224
Effect of notice to the covenantor of adverse suit against the cove-
nantee,
Breach of the covenant,
226
.240
Actual eviction,
1.
Where it is by process of law, consequent upon a judgment,

The older cases in New York overruled
.
242
243
CONTENTS.
2.
3.
Where
Where
the dispossession
the possession
is
is
Xlll
by entry,
.243
voluntarily surrendered,
245
Constructive eviction,
1.
2.
the inability of the covenantee to obtain the possession,

.
.
Application of this to uncultivated lands,
By
Where
after
the covenantee protects himself under the adverse

.
its establishment by a judgment,
lord's title,
Analogy
fails
as
between vendor and purchaser,
the covenantee protects <himself under the adverse

.
.
without its establishment by a judgment,
equity,
262
.264
268
title,
.......
....
......
.......
........
.
285
Limits to the application of constructive eviction,

Where the loss is of something which represents the land, or of
288
some incident to its enjoyment,

Release of damages from exercise of right of eminent domain
293
it
is,
seems, no eviction,
Constructive eviction caused by loss of consideration-money after

a re-sale,
Review of
the cases
Pleadings,
upon the subject of
eviction,
Measure of damages,
In some States the damages are measured by the value
.
eviction,
As
278
can be settled in
title
4.
.262
Where
Cases in which the whole question of
260
his land-
......
Origin of the rule,

Its limits,
towards
to the estoppel of a tenant
251
25if
title,
Suggested analogy
3.
in the civil law,
299
305
312
308
at the time of
.314
In others, by the consideration-money,

.
.
Distinction taken as to damages in admeasurement of dower,
.316.
CHAPTER
295
317
.327
VIII.
THE EXTENT TO WHICH COVENANTS FOR TITLE RUN WITH LAND^.

AND HEREIN OF THEIR RELEASE.
Common-law
rule which prohibited the assignment of choses in action,

exception in the case of covenants, unless where they were to be
performed on or about land,
.....
No
Requisites to enable covenants to run with land,

b
333
334
334
XIV
CONTENTS.
Distinction
between the benefit and burden of covenants,
All the covenants for
title
run with the land until breach,
335
.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
.....
Different doctrine in England and Indiana,
Statutory provisions in Maine,

Doctrine in Ohio and Missouri,
Authorities
.337
339
.341
.......
.
upon which the American doctrine
Their explanation,
is
based,
348
349
Different rule applied to the other covenants for title,

.
.
Its application to successive sets of purchasers,
Doctrine that the covenants pass with the legal estate, applied to the
case of mortgages,
.
.
.
.
.
352
Result in England and in Kentucky,

Different course of decision in most other States, where the covenants
are held to pass with the equity of redemption,
.
.
361
.....
.
Remedy
in equity,
353
360
362
.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,
Mode
in
which covenants may be released, or their performance
pensed with,
.369
Effect of a release by the covenantee while still the owner,

Question whether such releases are within the registry acts,
369
dis-
371
.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,

Doctrine that want of estate will deprive covenants of their capacity
......
for
running with land,

under modern system of conveyancing,
....
Its effect
Not obviated by operation of estoppel,

Course of decision in New York and Massachusetts,
will pass with
a possession under color of title,
CHAPTER
377
382
.
383
386
that the covenants

.
888
IX.
THE 'OPERATION OF COVENANTS FOR TITLE BY WAY OF ESTOPPEL

OR REBUTTER.
Effect of the old warranty by way of rebutter,
Statutes of Gloucester, of 1 1 Hen. VII., and of 4
Anne,
894
395
XV
CONTENTS.
Effect of statute of
ranty,
Its
Anne
.
in restraining operation of collateral

.
re-enactment in several of the United States,
Distinction at
Ordinary
common law between
effect of
by
bargain and
.....
and
This result not caused by a grant or release,

effect
.397
.
feoffment, fine or recovery,
leases, in passing after-acquired interests,
Nor by conveyance taking

Early New York decisions
war-
rebutter and estoppel,
an estoppel,
Effect of estoppel as caused
under the
Subsequent
of a covenant of warranty,
an
402
.404
.
....
that such an estoppel could be caused

sale, or lease and release,
decisions denying such
effect, unless
.
402
in
statute of uses,
398
402
405
by
408
with the presence
409
This operation given to the covenants generally adopted in the United

States,
Limitations to the doctrine,

Its application
And
to the
denied in Maine
covenant for
seizin,
.411
......
.
Revised statutes of Arkansas and Missouri on the subject,
covenant of non-claim,
where that covenant is held to be
to the
411
414
414
satis-
.416
by the transfer of an actual seizin,
And where the after-acquired interest does not come within the covefied
........
.
nant,
And when
416
417
the generality of the covenant is restrained by the context,
.421
Reasons upon which the doctrine is capable of being based, .
Its effect, as
1.
generally applied,
Between the purchaser and the grantor and his heirs,

It forces the after-acquired title upon the former, nolens volens,
Between the purchaser and a subsequent purchaser from the
.
2.
424
.427
.......
.......
.......
........
.
.
.
.
.
.
grantor,
Effect of application of the doctrine, in this relation
422
upon the
registry acts,
430
Passages of Littleton and Coke on which the doctrine has generally
been based,
Their explanation,
Doctrine as recognized in Pennsylvania,
In England,
And by the Supreme Court of the United States,

No estoppel to purchaser created by covenants in
for the purchase-money,
435
.441
434
447
455
a mortgage given
.
.457
.
Estoppel created by clause as to consideration-money,
Estoppel not created, in general, by the acceptance of an estate,
460
463
CONTEXTS.
XVI
CHAPTER
X.
IMPLIED COVENANTS, AND HOW COVENANTS FOR TITLE MAY BE

LIMITED OR QUALIFIED.
Implied warranty at
Remedy upon
common
law,
it,
...
.467
469
Implied warranty and condition of re-entry in cases of exchange and

.
partition,
.470
.
.
.
.
.
473
present day,
Suggestions that covenants for title in the creation or transfer of a free.
.
.
.474
hold are implied from words of granting,
Its effect at the
.
.
Subsequent decisions to the contrary,
Covenants implied in creation of a leasehold from the words of
.475
.........
.
ing,
.
.
Effect of such implied covenants,
Question as to what covenant is implied from the
lord
...
and tenant,
mere
relation of land.
.479
The
implied covenant restrained by express covenants in the deed,

And endures no longer than the estate out of which it is granted,
between express and implied covenants,

Covenants from title not to be implied from a recital,
How covenants for title may be limited or qualified,
Distinction
When
When
484
488
485
483
.
490
preceding restrictive words extend to all the covenants,

subsequent limited covenant will not restrain preceding general
one,
When
When
........
.......
........
.
ent natures,
Covenant
for quantity of
covenants for
land conveyed
is
title,
interest,
Covenants for title implied by statutory enactment,

.
.
Statute of 6 Anne, by which certain covenants are implied from the
words grant, bargain, and
Recent enactments
Statute of
And
Anne
copied in
in
sell,
England,
.....
.....
partially re-enacted in Pennsylvania,
many
of the United States,
518
519
521
not to be implied from the
Covenants restrained by descriptive context, or limited

Exceptions,
493
.512
preceding general covenant will not enlarge subsequent one,

restrictive words do not operate, the covenants being of differ-
Jurisdiction of equity in reforming covenants,
476
.478
leas-
525
580
533
533
535
.537
524
542
CONTENTS.
CHAPTER
WHAT COVENANTS FOR
XI.
TITLE A PURCHASER HAS A RIGHT TO

EXPECT.
........
........
General rules in England as

a vendor,
The covenants only extend

testator,
what covenants are demandable from
to
to his
own
549
acts or those of his ancestor or
551
.552
.
.
mortgages and leases,
in
States
the
rules
established
United
precise
upon
subjects of proper
Except
No
XV11
in cases of
or usual covenants,
554
The absence
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, .
Subsequent authorities overruling these,

Rule in equity as to marketable titles,
to
Power of
title,
When
for title are, in general,
sale given to
covenant that they have done
demandable from the
CHAPTER
570
571
.573
XII.
AND WHO MAY TAKE ADVANTAGE OF

.
by bankruptcy,
Joint or several liability,

Liability of a married woman
b*
.574
Often a material circumstance in the marshalling of assets,

effected
567
BY,
Liability of the covenantor,
How
566
que
upon covenants given by them-
covenants demandable from ministerial vendors,
WHO ARE BOUND
cestui
an agent implies a power to covenant for the
agents, &c., are personally liable
selves,
No
.562
559
.561
incumber,
But covenants
trusts,
.......
........
.........
........
Fiduciary vendors, as trustees, &c., only
no act
upon covenants contained
.574
in a fine,
577
.578
578
CONTENTS.
XV111
But
in
no other species of assurance,
........
.
.579
Jurisdiction of equity in quieting titles at the instance of the cove-
nantor,
Liability of the heir,
Dependent upon his having assets by descent,

Remedy, at common law, against the heir,
Extended by statute of fraudulent devises,
587
581
.586
.587
... ....
.
Its imperfection,
Subsequent
legislation in
England,
589
590
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,

Liability of the devisee,
Not bound,
at
common
law,
How
subsequently altered,
testator,
testator
He is bound, although not named in the covenant,

And whether {he covenants are broken before or
596
....
.....
......
........
......
.....
.
'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,
.Joint
598
599
599
after the death of
the conveyance is of a leasehold, the covenants are binding

upon the assignee of the reversion,
*
.
.
.
.
Rights of the covenantee,
Dependent upon the nature of the covenant,

How affected by lapse of time,
598
come
.......
......
the covenantor,
Liability of the assignee,
595
.597
....
Liability of the executor or administrator,
Where
Damages recovered upon covenants for title of a

within a devise for the payment of debts,
594
.594
.....
by debts of his
Statute of fraudulent devises,

Its effect,
and several covenants,
600
601
601
602
602
602
602
603
Their construction depends upon the interest taken by the covenantees,
Mr. Preston's opinion and the recent cases
in the
Exchequer,
603
604
Result of the authorities,
605
Rights of the heir and devisee,

restricted, in the United States, to such covenants as are
not held to be broken as soon as made,
607
These are
...
....
.......
608
:Rights of the executor or administrator,
609
'Of the assignee,
610
CONTENTS.
CHAPTER
XIX
XIII.
THE PURCHASER'S RIGHT TO RECOVER BACK OR DETAIN THE

PURCHASE-MONEY AFTER THE EXECUTION OF THE DEED.
between the rules which govern the contract while execuand when executed,
.611
Distinction
tory
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 reclaim his purchase-money,
.
.
.613
.
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,
616
.619
.620
.621
.616
.
615
623
Distinction between suppressio veri and allegaiio falsi,

.
.626
.
.
.
628
Equity of the purchaser affected by his delay,
Principles upon which the purchaser's right to detain or reclaim pur-
......
chase money is based,

Common-law rules in restricting each
plaintiff's
demand,
suit to the
.
How
636
subject-matter of
.
636
modified by statutes of set-off and bankruptcy,

Growth of the doctrine that purchaser may take advantage of breach
of warranty of a chattel, in an action for its price,
.
636
Different grounds upon which such a doctrine has been based,
637
Recoupment,
But the principle
Common-law
is
rule
that of preventing circuity of action,
637
.638
638
which precluded inquiry into the consideration of a

.
specialty,
How
.639
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
......
.
the consideration for the purchase-money of real estate,

Application of these principles to the covenants for title, .
is
Mere absence
of
title
But such a defence
Or
is
no defence to payment of purchase-money,

maintainable where there has been an eviction,
to the extent of the
amount paid
to
purchase the paramount
641
644
title,
646
672
673
Jurisdiction of equity in rescinding the contract, or enjoining collection of the purchase-money, .

.
.
.
.
.676
XX
CONTENTS.
In general, no grounds for its exercise exist, unless where the purchaser has a present right to damages upon his covenants,
.
Its exercise where such is the case,
.....
677
686
.690
.
.
.
.
Statutory provisions in Missouri,
Quiet timet jurisdiction in cases of insolvency or non-residence of the
........
........
......
....
covenantor,
But these
cases are dependent
paramount
Cases where
title,
the parties to the
all
title
.693
are before the court,
Doctrine in South Carolina, as to rights of the purchaser in

nection,
The
earlier cases modified,
691
upon the actual prosecution of the
696
this con-
700
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,
Purchaser
less
may defend by
he was
run the risk of the
to
What must be its character,

What will be deemed notice on
Where there is a known defect
title,
Application of this rule,

1. Where the defect or incumbrance
unknown,
is
2.
.713
and an incumbrance,
But such a presumption is not a conclusive one,

In certain cases of an incumbrance, it seems that not even a presumption
Where
is
brance,
state of facts continue the
conveyance,
But where
the covenant
is
broken, he
extent of his damages,

Cases where the consideration-money
ground-rent,
sideration,
the defence
is
is
724
725
defect or incum-
his
733
knowledge
as at the time of the
may defend
demand and
Distinction between cross
Where
same
723
.727
known
a covenant against a
Purchaser cannot detain purchase-money where
and the
.......
.......
.....
.......
.
arises,
there
721
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,
.
714
715
the part of the purchaser,

.
or incumbrance and no covenant,
Distinction between a defect of title
3.
707
reason of clear defect or incumbrance, un-
in the
735
himself to the
738
form of an annual
740
equitable failure of con.
a legal one, the purchaser
may
set-off,
.741
and
recover his damages under the defalcation act,

.
.
741
it is
equitable, he can only detain the ground-rent
to the extent of the failure of consideration,
.
.
.71
But where
L>
INDEX TO CASES CITED.

A"
XX11
Page
Barrow
v.
Bartlett
Barton
561
380
508, 509
Bispham
Pearson
v.
v.
Fitzgerald
v.
Morris
Bartram u. Whichcote
Bashore v. Whisler
Basten v. Butter
Batchelder
Bates
v.
v.
Delavan
v.
Norcross
Bird
713
Birney
Batterman v. Pierce
Baxter v. Bradbury 22,
683
399
638, 649
80, 81, 88, 89,
412, 423, 425

v.
359,478,482
Ryerss
Bayard v. McLane
Beach v. Packard
Beale
v.
Steele
v.
Waddell
v.
Beall
v.
Bean
v.
684,
614, 682,
Seiveley
Taylor
Herrick
v.
Mayo
v.
Welsh
Bearce
35, 36
524, 626,
113,
412,423
Jackson
v.
Beardsley
v.
Beauchamp
21
312, 387
Knight
v.
66
561
685
684
587
627
134
93
Damory
Beaupland v. McKeen 715, 717, 721

Beck v. Simmons
685
Beddoes Exrs. v. Wads worth 23, 342,
Beebe
388, 389, 390, 609

166, 240,247,
Swartwout
v.
260,465, 685,691
725
38,40
v.
Seymour 67, 68, 524, 572
Bell v. Henderson
623
v.
220
Higgins
v.
410, 418
Twilight
Bellas o. McCarthy
444, 594
Beidelman v. Foulk
Belden v. Pitkins
Bender
v.
Fromberger
54, 58, 61, 65,
226,233, 320, 502, 539

Benner v. Evans
328
v.
593
Phillips
Bennett v. Jenkins
94,319
v. Womack
554
78,
v.
Bensley
Benson
Bri-gin
Burdon
190, 191, 404,

405, 408,453
Benson
McFarland
Union Bank
588
594
v.
v.
Bette
v.
Be vis
v.
Bickford
66
278
Smith
v.
Page 108, 121,
12. >,
:!!_',
345, 353
Bigulow
v.
Finch
268
315
703
Weiderwax
v.
Bingham
412
471
637, 650
127, 130, 136,
137, 138
Sturgis
Page
Bigelow v. Jones
Biggus v. Bradly
Haim
v.
Birtwhistle
v.
576
43
563
316
59, 123
432
521
476,478
426
369
673
131
Vardill
Biscoe
v.
Perkins
Bissell
v.
Bitner
Bivins
v.
Erwin
Brough
Vinzant
Barton
v. Gilmore
Blackmore v. Shelby
Black
v.
v.
Blackwell
Nash
Blair v. Claxton
.
Duncan
t>.
Rankin
Blake v. Buchanan
v. Tucker
Blakely v. Grant
124,478
380
412
v.
Blanchard
v.
66, 68, 85,
426
54,381,602
Smith
v.
78, 96,
311
Brooks 410,412,419,
420,526, 529, 530
W.Ellis
77,87,146,427
t\Hoxie54,55,90,92, 182
233
Blasdale v. Babcock
Blatchford
w.
The Mayor
mouth
of Ply1
75
35
Bledsoe v. Rodgers
Blicke v. Dymoke
198, 199
268
Blight's Lessee v. Rochester
377
Blin v. Pierce
480
321
Blydenburgh v. Cotheal 219, 247, 342
566
Brackenridge v. Dawson
Bradburne v. Botfield
604, 605
Bloss
v.
Kittridge
Blossom
v.
B radford
Knox
157
737
621
Bradley v. Chase
154
v. Commissioners
485
Bragg v. Wiseman
Brandt v. Foster 614, 638, 673, 676
557
Bodley v. McCord
411,446
Bogyv. Shoabs
461
Holies v. Beach
66
Bolton r. Johns
146
Bond w. Bond
233
Bond's Adinrs. v. Ward
w.
Long
w.
Potts
Booker
w.
Bool
Mix
v.
Eyre
v.
Boon us
Booth
r.
Bell
Starr
214, 226, 233, 234,

236, 237, 321
52
657
154, 243, 350, 854,
358, 388, 594
XX111
Page
Boothby r. Hathaway
Bordeaux v. Cave
Bottorf v. Smith
Boulney v. Curteys
"
Bowcn v. Tin-all
Bowman v. Taylor
v. Wat ham
Buckley
339
188
558, 687, 691
Buell
78,
407,456
35
588
592
593
706
227, 229
Bowyer v. Rivitt
Boyd v. Armstrong
v.
Berrell
r.
Hopst
Whitfield
v.
Breck
v.
21
Young
35,40, 43
Breckenridge v. Moore
Bree v. Hoi beck
614, 617, 707
Brewster v. Kitchell
335
Briee v. Brice
627
Brick 11. Coster
166, 717
420
Brigham v. Smith
Bright v. Boyd
320, 325
35
Brinley v. Whiting
Britton v. Turner
637
Brock v. Southwick
648, 661
612
Brocksopp v. Lucas
Brooks v. Fowle
584
v.
Moody
127, 134, 136,
138
499, 500
Broughton v. Conway
Brown v. Brodhead
v.
Brown
Cannon
v.
Dickerson
r.
v.
v.
Page
22
702, 705, 706
138
491, 520
561
v.
Williams
Tate
v.
v.
Bulkley v. Landon
Bull v. Willard
v. Wiott
Bullard
v.
Gammon
Hay wood
560
474
419
413,443
v.
Jackson
McCormick
v.
Staples 132, 370, 372, 459,
r.
Starke
Burbank
v.
561
v.
Storey
Taylor
266
226, 228, 230
548
Tomlinson
Browne v. Potter
Browning v. Wright,
463
17, 182, 474,
475, 488, 493, 495, 498, 500,

501,510,519, 523, 551,557
Brunnel
v.
Jackson
626
90
685
85
602
235
Bryan v. Small wood

Buchanan v. Alwell
Buck
v.
Habcock
v.
Bininger
Buckets
Gould
Hubbard
Burgh v. Legge
Burhans v. Vansant
Burke v. Green
Burnet v. Jenkins
Burchard
v.
v.
Burnett
Burns
?;.
v.
Burrell
311
284
32
101
479
255
275
571
Lynch
Montgomery
Wilkinson
Jones
v.
Burroughs v. McNeil
Burton v. Schermerhorn
v. Stewart
Burwell v. Jackson
562, 612,
155
674
653
614
129
Busby v. Littlefield
Bush v. Bradley
256
v. Cooper
136, 413, 545, 577
v. Keller
584
Butler v. Gale
119, 129
v. Miller
614
v. Swinerton
179, 180
Butman v. Hussey
614
65, 70
Byrnes v. Rich
C.
Cadman
Horner
v. Henderson
Caldwell v. Bower
v.
v.
Mouzon
Buckingham's Lessee
v.
Hanna, 421,
423,427
612
706
290
Kirkpatrick 201, 219, 255
Caines' Lessee
460
v.
Briggs
Platner
v.
Burnpus
269, 271, 278,

283, 290, 320, 740
v.
v.
587
182
660
380
613
413
66, 67
676, 695
66
421
Nightingale
v.
Calthorp v. Hey ton

Calvert v. Sebright
171
158, 177, 526,
532, 552
v.
Whittingham
Canaan y. Turnpike Co.
Cane v. Allen
Campbell
626
74
138
41
Capenhurst v. Capenhurst
Careswell v. Vaughan
220
Carleton v. Tyler
578
Carlisle v. Blamire
360
Carnahan v. Hall
715
560
Carpenter v. Baily
v. Parker
178
v. Schermerhorn 434, 580
Carr v. Roach
613, 614
v. Roberts
153
XXIV
Page
Goddin
Godley
Carson
Carter
v.
479
702, 705, 706
Carter
v.
35
v.
Carrington
Denman
110,112,124,
125, 126, 313, 342, 352
Flower
311
604
Carthrae v. Browne
407
Carver v. Astor
v. Jackson
490
v.
Gary
Case
v.
Broughton
Caswell t>. Wendell

Cates v. Loftus
Cathcart v. Bowman
Leavenworth
v.
Churchill
v.
Hall
Allen
Clanrickard v. Sidney
Clapp v. Coble
Clark
66
v.
Baird
v.
Carrington
Cleghorn
v.
v.
v.
v.
Redman
Parr
1 73
Cavan v. Pultney
167
Cave v. Brookesby
360
Cavis v. MoClary
135
Chace v. Hinman
v. Weston 354,359,367,661
35
Chairs v. Hobson
265
Chambers r. Pleak
v.
v.
Perry
Scudder
v.
Seirer
v.
Smith
v.
Snelling
Swift
621
220
674
Chandler v. Marsh
Chandelor v. Lopus
629, 638
21, 138, 144, 145
Chapel v. Bull
661
Chaplain v. Briscoe
171
v. Southgate
v.
Holmes
v.
Robertson
v.
Hansbury
Chastaine
Chauvin
Johnson
v.
Chapman
Charnley
Laytin
v.
Champness
Staten
342
43
432
566
Wagner
397, 416, 418,
v.
v.
108, 214, 226,
434
484
Cheiny v. Langley
683
Chesterman v. Gardiner
Chcsnut Hill Reservoir Co. v. Chase
380
Chew v. Barnet
422, 442, 444
City of Hartford
Starke
Cholmondeley v. Clinton
Christine v. (Jotwalt
Chipman
v.
Cliisliolme
v.
581
154
82
v.
Clarke
v.
Faux
v.
Samson
v.
Me Gee
68
Colcord v. Swan
Coldcot v. Hill
Cole v. Alberts
433, 580
r.
Coger
66
671
v. Lee
224, 273, 280, 292, 526
155
v. Sims
284
Coleman v. Coleman
684
v. Rowe
Coles
y.
Collier
v. Shenim
Kinder
y.
Gamble
n-
v.
Blantern
730, 738
r.
Church
v.
Brown
477,549,551
v.
Crouch
Evans
()li\
522
Justice
v.
ll'-yiiolds
r.
576
123
342
660
602
612
474
256
684
612
479
251
148
564
561
264
243
411
34
v. Courtney
Burges
Clermont v. Tasburgh
Cloak v. Harper
Cloake v. Hooper
Clowes v. Dickinson
Clows v. Higginson
Clute v. Robinson
560,
Cobb v. Arnold
263,
Coble v. Wellborn
180,
Cocke v. Brogan
Cockell v. Taylor
420
Coe v. Persons Unknown
v. Talcott
572
Clanton
r.
hill-hill
346, 377, 381,
Clarke's Lessee
Christy
Christinas
219, 246, 297, 309

558, 559, 561
63,94,113,125,320
113,125,134
489
475, 524
403
v.
31,48,54,67,
McAnulty
r.
v. Smith
342, 547, 602
580
v. Spence
734
Chamberlain r. McLurg
155
Champion v. Brown
675
Champlin v. Dotson
624
233
692
682
368
Hardgrove
Johnson
v.
Harris
v.
267,283
v. Tirrell
93
Hurlbut
v.
Caulkins
154
66
3, 545
495, 526
v.
26, 31, 76, 78
Catlin
74
Hunt
v.
Clagget
Clanch
115
639
63, 315
154
114
Daniels
v.
Page
Church
Collingwood
Collins
v.
Irwin
23, 79,
578
197
377, 547
69, 130, 226,

231, 236
40, 639
601
621
XXV
Page
Page
Collins
v.
463
Torry
103, 613, 727
Colvin v. Schcll
Colwell v. Hamilton
Combes v. Fisher
Combs
Tarlton's
y.
v.
Comings
560, 718
295
97
Admr.
134, 138, 578,
Little,
604
Commissioner in Equity
v.
Pear705
son
McClanachan 614
27
Comstock
Commonwealth
Comstoek
v.
v.
Smith 52, 410, 413, 416,

420
Concord Bank v. Gregg
622, 629
Con drey v. West
614, 644
v.
Connor v. Eddy
Cook v. Field
460, 661
34
Mix
v.
642, 648
Founds
v. Loxley
Cooley v. Rankin
Cooper v. Denne
v. Granberry
Cooke
v.
532
263
685
563
368
229
648
226, 308
132
437, 527
369
17, 20,
In re
v.
v.
Singleton
v,
Watson
Copeland v. Copeland
Corbin v. Healy
Cordwent v. Hunt
Cornell
v.
Jackson,
21, 30, 92, 375,
Cortelyon u. Van Brundt

Corus v.
Coster ?>. Manufacturing Co.
The Monroe Man.
v.
Cotton
v.
Cowan
r.
Ward
v.
Cox
v.
v.
Crowninshicld y. Robinson
Crutcher v. Stump
Camming v. Gumming
Cummins y. Kennedy
Cunningham
Knight 367, 368,380

561
Sharp
66
Lyles
415
v. Deering 167, 254, 301, 667
v. Hutton
43
v.
355
Spitty
Cushman r. Blanchard
21, 30, 315
Cutler v. Bower
657
Cutter v. Davenport
43
v. Powell
638
Curtis
v.
Curtis
D.
Pullen
Rosevelt
v.
Dalby
Dale
t-.
v. Crawford
Danforth v. Streeter
Daniel v. Mitchell
Dart y. Dart
Dalzell
Davenport v. Bartlett
Davie v. Sacheverell
Davies v. Churchman
Davis v. Atkins
Darrows
Keller
v.
Logan
589
v.
Lyman
Strode's Heirs 60, 63,

64, 98. 101, 226, 237
Stewart's Admr.
572
v.
McVickers
Sims
Woodward
612,614,552
v.
v.
v.
v.
622
v.
367, 377
v.
154
Smith
Tarwater
Wil bourne
Pepys
Davy y.
Dawson y. Dyer
Day y. Brown
Chism
Nix
Deakins
v.
Hollis
612
621
563
35
621
410
273
170
588
524
463
412
236,274, 700
134, 136, 138, 342,
v.
Miller
629
Fithian
v.
v.
v.
Curry
576
63, 65, 255
v.
320, 613
614
320
717
519
35, 555
637
219
717
y. Motzer
Cullum v. The Branch Bank at
Mobile
668, 672, 692
46
Cully v. Doe
369
Cumber y. Wane
Culler
v.
Cripps v. Reade
Crittenden v. Craig
Crooker v. Jewell
v.
167, 169
215, 479
Fowle
v.
Craddock v.
Craig v. Hopkins
v. Martin
Crawford v. Murphy
Cray ford y. Cray ford
Crookhey
377
v.
74
King
u.
Co. 686,
688, 690
Crouch
362,457,460
68, 71, 94, 103, 140,
Henry
Cresson
167
573
83, 84
Shields
Silliman
Cox's Heirs
423, 517
51
Cross y. Robinson
Crosse y. Young
374,497
612,674
589, 623
166, 321,323
186, 548
226, 231, 233
587, 588, 589
164
542, 573
252, 311
637
476
XXVI
Page
Dearborn y. Cross
Dearth v. Williamson
Decharms v. Horwood
Decker y. Caskey
369
560
606
407
484
Deering y. Farrington
DeForrest y. Leete
1 25, 1 2
Delavergne v. Norris 134, 135, 138
407
Den y. Brewer
v. Desmarest
434, 580
437
y. Forsyth
v.
Geiger
41
v.
Young
437
Dennis
v.
Denny
y.
Denston
237, 247, 255, 663,

664, 667
Wiekliffe
700
Morris
y. Brown
Derby v. Jones
Desha y. Robinson
Devorn v. Johnson
Dexter y. Mauley
683
720
420
638
237
Dentler
66, 68, 137, 142,
176, 183, 477,
479
Nelson
Dickens
y.
Dickerson
Dickinson
Shepperd
v.
Talbot
Hall
y.
v.
v.
Dickson
r.
Oliver
263, 404, 408
v.
Potts
v.
Prestwidge
407
452
404
263
562
476
403
437
420, 434, 580
623
v.
Scarborough
y.
Smythe
v.
v.
Stanion
Prince
v.
Jones
Whitehead
Dominick v. Michael
r.
Donelson v. Weakley
Donnell v. Thompson 69,
Heath
v.
v.
Page
Doe
35
Donohoe
328
675
638
154
Dorsey v. Dashill
v. Jackman
706, 710, 717
412
Doswell v. Buchanan
355
Dougherty v. Duvall's Heirs
601
Doughty v. Bowman
Dorchester
y.
Dimmick
v.
Douglass
Dow
91
Doyle
Drew
673
Dix
v.
Coppin
Lockwood
161
School District
v. Willcutt
661
y.
Evans
Hays
v.
Hull
v.
Lynes
Martyn
v.
34
43
46
16
35, 46
427,428,431
469
614
Knapp
v.
Lord Norbury
v. Towle
96,
v.
452
99, 101, 247,
661
Drinker
725, 727
219, 315
Drury v. Shumway
Duchess of Kingston's case 267, 268,
Dudley
71, 138, 140,
416
Dobbins y. Brown 117,216,291,295,
299, 305
Dobel v. Stevens
625
Dodd v. Seymour
561, 569
Dodds y. Toner
673
637
Dodge v. Tileston
Dodswell y. Buchanan
410
265
Doe v. Barton
y. Cassiday
369
d. Christmas y. Oliver
404
v. Errington
456
y.
Scott
Hoomes* Admr. 355, 377,
141, 142
Doane
Coventry
Lewis
v.
412,427
387, 390, 393, 506,

507, 557, 587
v. Voorhees 280, 290, 723
Desire 71, 321, 341, 392,
v.
v.
Doremus v. Bond
Dorr y. Fisher
v.
Byers
v.
394,410,424, 436,
457, 465
Cod well
412, 427
y.
Folliott
547
Dillon
Emery
v.
74, 124, 125,

130, 273, 274
148, 572, 578.
Duffield
v.
Dummer
y.
Scott
Birch
166, 169
227, 233, 238, 239
125
663
Lane
734
v. McCullough
Dunklee y. The Wilton Railroad
Duncan
y.
Co.
114,115
108
377
Dunn v. Snell
v. White
129,132,668,670
Dunseth y. The Bank of the U. S. 328
249, 273
Dupuy y. Roebuck
66
]>u\;il r. Bibb
Dunnica
y.
v.
Sharp
Craig 54, 126, 254, 273, 503,

572, 667
160
Duvoll y. Wilson
555, 558. 561
Dwight y. Cutler
5CC
Ihvincl y. Veazie
5SS
Dyke y. Sweeting
245
Dyott y. Pendleton

Page,
E.
Page
Farnsworth
Fairer
O wen
v.
Eardley
Karl of Bath
v.
589
614
Earle
Middleton
v.
v.
318,319
626, 627
Early v. Garrett
345
Eastabrook r. Hapgood
v. Smith
69, 114, 273,
504
Eastman v. Wright
377
560
Eby o. Eby
Eccleston y. Clipsam
604
575
Eddy v. Travcrs
Edwards v. Applebee
190
v. Bodine
679, 683
v. Brown
651
616, 619, 631
v.
McLeay
v.
Morris
684
y.
Roys
Varick
41
410, 411
90, 94
141, 145, 148
118
v.
Ela v. Card
Elder v. True
Elland v. Llandaff
Elliot
v.
Elliott
568
369
637
319, 684
Merrymau
Boren
Heath
v.
v.
o.
Thompson
Nimnio
Ellis v.
160, 161
Welch
y.
167,272,417
Elysville Manuf. Co.
Ennis
Leach
v.
Eshelhnan's Lessee
Espy v. Anderson
Evans v. Dendy
Elliot
v.
v.
Sanders
v.
Vaughan
Evcleth
Everson
Crouch
v.
v.
Kirtland
Everts
v.
Brown
Ewins
v.
Calhoun
Exall
v.
Okisko Co. 66
622
566
Hoke
398
555
702
266
578
177, 183
462
560
223
v.
Benedict
v.
English
v.
621
291
Partridge
v.
Nightingal
Farrington v. Barr
Farrow
220, 542
701, 703
Mays
y.
Fausset y. Cafrpenter
447, 452
471
Feather v. Strohoecker
Feemster y. May
561, 663, 674
589
Fergus y. Gore
489, 524
Ferguson y. Dent
227
Ferrell v. Alder
Ferris y. Harshea
236, 247
Field y. Snell
349, 368, 372, 581
Fielder v. Studley
522
Fields y. Hunter
227, 236, 237
477
Finley y. Simpson
Finn y. Sleight
464
Fisher y. Salmon
673
y. Worrall
154
Fitch o. Baldwin
48, 77, 465
y.
114, 458
Seymour
Fite y. Doe
35
266
Fitzgerald y. Beebe
y.
Fitzhugh
Croghan
195
223, 224,
382, 412, 414, 456
Farley
v.
Clark
Briant
v.
614
590, 597, 598
25, 45, 48, 51
Fitzhugh's Heirs y. Tyler

Fleming y. Gilbert
y.
Fletcher
Flight
y.
Floom
y.
y.
Harrison
Button
Cook
Beard
Flureau y. Thornhill
Fly nn y. Williams
Foley y. Addenbrooke
Cowjrill
y.
Folliard
Foord
Wallace
Wilson
Burnet 22,
y.
y.
Foote
407, 420
369
557
561
155
54
59
400, 401
604
623
166
493, 498
y.
29, 71, 127, 135,
140, 211, 213, 220, 272, 320, 340
Ford
Walsworth
y.
Forster
368
Fuller
571
Forster's Exrs. y. Gillani
555, 730
Foss y. Stickney
77, 146
Foster y. Mapes
170
y. Pierson
126, 182, 243
y.
Woods
132
Fowle y. Welsh
Fowler y. Poling
23, 247, 277, 290,
y.
y.
Falconer
02
66
v.
F.
Fain v. Ayers
Fairbanks e. Williamson
637
Garrard
Farrisy Smith
Earl of Bradford
589, 599
Earle
'
XXVII
Fox
Shearer
Mackreth
Mensch
r.
Widgery
Franc-hot v. Leach
y.
y.
Franciscus
y.
Reigart
70
390, 690
433, 580. 642
623, 627
714
410, 416
651
740, 742
XXV111
Page
Page
Frank
642
265
Vinson
v.
Franklin
Carter
Frazer v. Skey
v. Tunis
Frazier v. Harvie
v.
Freeman
182,479
588
v.
Lomas
311
636
v.
Thayer
410
100
French
v.
Parish
Friedly
v.
Scheetz
Gazeley v. Price
Gee y. Pharr
Gennings v. Norton
248, 265, 267

495, 500
Geyer y. Girard
Ghegan v. Young
Gibbs y. Thayer
411,460
477
223, 412
Gervis
v.
Gibson
410, 411
Frisbee v. Hoffnagle
646, 648, 650,
652, 656, 660, 668, C72
410
Frisby v. Ballance
593
Fritz v. Evans
Gilbert
Cresswell
v.
Darst
v.
Frontin v. Small
Frost v. Earnest
41,484
166, 182
Raymond
Fuhrman v. Loudon
v.
.Fuller
Hubbard
v.
v.
Funk
475,477, 614
722, 726, 735
569
122, 123
Wright
v.
Cresswell
v.
Newcomer
v.
Voneida
289, 293, 306,
548
412
26, 127, 128, 130,
Furman
v.
Elmore
Furness
v.
Williams
138, 154, 541

220,318, 701,
703
465, 656
Gainsford
Gillam
y.
Gale
562
499
588
Gale
v.
Reed
Galton y. Hancock
Gamble v. Collier
Gannard v. Esvala
Gans v. Renshaw
v.
Gardiner
Garfield
v.
v.
Niles
Williams
Garlock v. Closs
Garrard v. Lantz
Garret v. Stuart
Garrett v. Cresson
Garrison v. Moore
v.
JSandford
Gartman v. Jones
Gaunt v. Wain man
Gay v. Hancock
Gayle
v,
Prk-u
Briggs
Gillett v.
Ripon
Gilman v. Haven
Ginn y. Hancock
Glasscock r. Minor
Glenn y. Thistle
Glinnister v. Audley
Godley v. Taylor
Godson y. Smith
Good
y.
589
110,154
342
388
23, 74,
720
66
721
741, 742
342
684
4C3
682
463
460
51, 113
629
665
53
572, 594
74
Good
741, 742
104, 732
Mylin
Goodill y. Brigham
Goodwin
y.
y.
Alker
Bailey
y.
Morgan
y.
Morse
Morse
y.
Gough
v.
v.
442
51
404, 407
404, 406
404
638
233
422
Taylor
Gordon y. Beacham
Gore y. Brazier 150,
Goucher
16
Beacham
y.
y.
106
Forester
y.
Goodright
73
612, 619, 718
229
135
559, 561
92, 114, 136
589
715
701
99
y.
Bank
v.
Buie
y.
Dugro
v. Roe
Gilkeson y. Snyder
Goodtitle
of Georgetown 103
Griffith
491, 500, 548
Wiman
y.
G.
v.
Turnpike Co.
y.
Gilchrist
Giles
619, 629
155, 191
D'Este
Goldsmid
v.
v.
569
Colt
v.
y.
Goodson
Gadsden
101
Putney
Peade
y.
George
573, 712,713,
723
242, 251
Frink
559, 560, 561

476, 544
212, 213, 244,

315, 327, 592
Helmbold
Bell
v. St.
Governeur
John
Elmendorf
v.
715
412
622
614, 683,
695
592
Smith
103, 228
Gragg v. Richardson
265
Graham y. Alsopp
v. Tankerly
226, 237
480, 483
Granger y. Collins
(l.-annisy. Clark
215,312,469,477,
479
Grantland v. Wight
566, 682
Gratz y. Ewalt
540, 541, 544,545
Graff
y.
XXIX
Page
Graves
v.
Leathers
Briscoe
v.
Cox
Gray
40,43
20, 48, 89, 98
650
v.
Handkinson
Great Falls Co. v. Worster
v.
1 7
Scott
Biddle
674
320, 325
693
154
386
684
320
r.
Given
r.
v.
v.
Campbell
Handkinson
v.
James
v.
McDonald
v.
Winter
Greenby
439
Mayo
v.
Gregory
701, 704
Wilcocks
v.
Cook
Greenleaf
o.
Greeno
v. Queen
Munson
48, 166, 242,

342, 345
648,649,650,
663
684
265
Davis 67, 219, 243, 246,
247, 248, 257, 370
Greenwood v. Ligon
123, 561
v. Tiber
579
Greer v. Tenant
328
Grenelife's Exrs. v.
168, 204
Grice v. Scarborough 110, 125, 128,
v.
Greenvault
v.
129, 130,132
Grillin
v.
o.
Chaffee
Dean
Fail-brother
Middleton
llalsey
v.
Reed
Ham
Storer
342
JIulley's Heirs v. Birchetts 158, 160,
247, 273, 319
Hagler r. Simpson
18, 243, 249
Hains r. Gardner
Haire e. Baker
Hale v. James
463
127, 129, 143
328, 329
c*
196
152
410, 414
of Cumberland 463
75,
Ham
v.
Hamblin
Bank
v.
Hamilton
v.
Cutts 226, 233, 242, 246,

247, 248, 249, 270, 281
Elliott
29, 77
v.
Wilson
v.
Hammatt
r.
Haraond
Hancock
v.
v.
Hannah
v.
Hanson
v.
Ilarlovv
v.
86,
342
263
Marsden
Emerson
621, 622
Hamilton's Lessee
r.
Hill
173
Carlton
460
Henderson
275, 309
Buckner's Exrs. 236, 237,
247, 321
Hardy v. Nelson 100, 101, 315, 460
355
Hare v. Cator
Thomas
v.
Morris
v.
v.
Newell
Parker
74
67
v.
Ransom
v.
Morris
Burgh
v.
Harper
Jeffries
v.
Harrington
v.
v.
Harris
68, 114, 129, 130,

131, 136
412
477
715,718
34
638
369
614
Harmer's Lessee
Long
Stratton
Goodwyn
v.
v.
Tyson
Harrold v. Whitaker
Hart v. Baylor
64,
684
627
606
98, 715, 718,
724
v.
Porter's Exrs.
v.
Thompson
Hartley v. McAnulty
Harvey
v.
Alexander
v.
Doe
Hastings
Hatch
v.
Welborn
Cobb
v.
Hawkes
v.
Orton
lay den
v.
Mentzer
Hayes
v.
135, 138, 292
v.
21, 219,
H.
ftp
420
Ilallett
Hacker
r.
v.
Tucker
641
359
v.
92, 580
Reynolds
Griffith v. Kempshall
612, 626, 683
Grimes o Redmond
470, 526
v. Shrieve
320
Grist v. Hodges
243, 253, 342, 609
Griswold v. Allen
114, 294
v.
592, 596
Bigelow
Giierard's Kxrs. v. Rivers
62, 318
Guild o. Guild
102
Guion v. Knapp
575
66
Giillcy v. Grubbs
(iuihrie v. Pulley
89, 93
Gwymi v. Thomas
187, 199
Gridley
Hall
v.
Haynes
Bickerstaff
v.
v.
v.
587
66
66
41
48
686
252, 310
66
47, 164, 165,
182
592
Colvin
Stevens 100, 101, 458, 459
119
Young
622
Irwin
Hazard v.
Heath v. Newman
v.
710, 711
Whidden
663,667
342,381,602,
603
XXX
Page
Hedges
y.
Hellier
y.
Kerr
Gaspard
Helps v. Hereford
Henderson v. Hay
v. Henderson
v.
Overtoil
0.
Vaux
Turner
Henning v. Withers
Herbert v. Ford
Heron v. Trey ne
Herrick v. Moore
Herrin v. McEntyre
Hersey v. Turbett
Hertzog v. Hertzog
Hervey v. Audland
Hesom v. Smyth
Henniker
Hesse
Hext
v.
r.
v.
Stevenson
Butler
Denio
Hobart
v.
v.
Lee
Hopkinson v. Lee
Hopper v. Lutkins
Horback v. Gray
606
318
637, 643, 660
196
119, 134
739
323
160, 161, 589
674
491,517,523,
548
706
380
611
661
623
560
552, 553, 562, 569
Ressegieu
v. Varrell
Hill's Lessee v. West
Hinde v. Gray
Hingen v. Payn
Holmes
Homer
Hooker
Headington
v.
Criswell
v.
Johnson
v.
v.
v.
Sinnickson
Purser
Folsom
Howe
Wright
v. Lewis
v.
Bass
v.
Walker
Howell
Howes
Richards
17, 19, 48, 163,
165, 501, 505, 506, 507, 548
Barker
v.
161
612
1 73, 1 74
Brushfield
Taliaferro 236, 247, 648, 661,
663, 665, 667
v.
Hoy
v.
Dimon
Thompson
Hubbard u. Althorp
Hoyt
412
32
530
v.
i".
v.
Norton
90, 119, 128, 136,
Bennet
Hulse v. White
Humphrey Phinney
Hughes
v.
Hunt
Amidon
v.
460
520
319
329
247, 275, 277, 290,

291, 355, 640
Hupp
v.
Kurd
v.
Cushing
245
171
625
370
34
701, 704
570
561
597
584
476, 524
696
437, 527
v.
Fletcher
176,177
v.
553
40, 44
101, 103, 319
671
660, 661
59
321
604, 605
686, 688
735
43
314
612
601
479
661
524
131
u.
v.
284
438
Holeridge r. Gillespie
Holland v. Jackson
t.
Nichols
v.
Hovey v. Newton
Howard v. Doolittle
v. Witham
311
480
Hogins v. Plympton
Holden v. Pike
148
Holder v. Taylor 215, 251, 253, 479
Holman
v.
Houghtaling
433
479
199
Hitchcock v. Giddings
621
v.
463
Harrington
Hitchens v. Lander
34
683
Hoag v. Rathbun
Hobein v. Drewell
673
Hobson v. Middleton
112, 567
702
Hodges v. Connor
v. Saunders
566, 613
Hodgson v. The East India Co. 182
154
Hogan's Exr. v. Calvert
Holloway
Horsford
66
589
158, 159
Grazebrook
v.
v.
354, 359, 470
Higginbottom v. Cornwall
Higgins v. Johnson
v.
476
403, 404
554
422
154
Morgan
v.
Hopkins
66, 124, 138
Hickey v. Burt
Hierny. Mill
Higdon v. Thomas
Hill
Page
557, 570
Cope
Danvers
Moore
Orwig
v.
v.
Hunter
v.
Daniel
v.
Graham
v.
Jameson
v.
O'Neil
Hunting v. Sheldrake
Huntingdon r. Grantland
Huntly r. Waddell
Hurn
Hupp
66
649
113
Hutching v. Moody
592
Hutchinson v. Stiles
553, 569
Hyatt y. Seeley
Hyde v. Dean of Windsor 221, 485
v.
Soper
Hussams
v.
Dampier
Iggulden
v.
May
477,493

I'nfrc
XXXI
XXXll
Page
McCartney
v.
Newman
412, 420
56
v.
Skeer
407, 443
Kennedy
Kent
v.
y.
Allen
v.
Welch
612
469
436
Kercheval v. Triplett
v. Kitchen
Kerr
707, 722, 737

242, 243, 257, 258
Shaw
v.
Kerrison
Lassels
Key y. Henson
Morgan
Lathrop y. Atwood
AVest
Stoddart
627
Lawrence
Blaisdell
Kimpton y. Walker
King y. Gunnison
Kidder
y.
Kidney
y.
Kimball
y.
v.Jones
v.
Norman
v.
Pyle
Kingman
y.
y.
Senter
Stonington
714
Lawry v. Williams
Lea v. Dean
Leary y. Durham 201,
188,194,198,200,
237
65, 92, 320
464
101
493
302
McCullough
Watts
319, 322,478
Kinsman r. Loomis
410
*
y. Brigham
233
Kip
182
Kirby r. Hansaker
v.
Knapp
Mitchell
y.
Marlboro
y.
Lee
21,
Koger
Kortz
y.
y.
558
477
642,661,672,673
Knickerbacker y. Hillmore
Knight y. Turner
Knox y. Jenks
Kane
Carpenter
526
671
34
Leavitt
y.
y.
y.
Dean
v.
Foard
v.
Rook
Leffingwell
Fidgeon
Simpson
Lamerson y. Marvin
y.
Legh
y.
59, 65, 92, 325, 721
658
561
155
101, 134, 280
631
679, 683, 684
377, 380
68, 92
674
Elliot
y.
McCarty
Legh
Leggett
y.
Leland y. Stone
Leonard y. Bates
Le Ray de Chaumont
Lethbridge y. Mytton
Lewen v. Stone
Lewis y. Baird
242, 253, 257,

273, 389
647, 648, 656,
369
647
40
Croker
y.
Legge
Forsyth 354,
359
153, 154, 350
154
420, 422
183, 314, 384
352, 391
Campbell
v.
v.
Cook
Hudson
v.
Jones
v.
v.
Lewis
Morton
Peake
v.
Ridjre
845, 348, 349, 850,

351, 352
y.
Smith
y.
Willis
166
263
128
62, 318
576
y.
y.
Lienow
Lighty
v.
y.
y.
Levit
Liber
Laing
226, 233
Poulteney
Savage
93, 94, 100, 158
Lamar
243, 247, 274,
Ledger i\ Ewer
Lee y. Colehill
682
650
407
Bank
560
368
674
412
640
275
Leather
Kruse y. Scripps
524
Kunckle y. Wynick
477
Kyle's Admr. y. Fauntleroy's Admr.
y.
79
v.
Sparrow
y.
Gamble
y.
477
v.
Kirkendall
y.
223, 4 1 2
Kingsberry y. Smith
Kingston y. Preston
Kinney
y.
Dole
Nottle 336, 337, 338, 343,

347, 352, 607, 608
y.
Kingdon
Lattin
y.
336, 337, 338, 352,

381, 608
Kerr's Admrs. 226, 238, 272,
273, 286, 320
v.
154
661
647, 651
Collier 71, 78, 94, 96, 377
Snell
Vail
y.
Lawless
Cureton
y.
197
684, 694
y.
661
701
181
Kibler
478
G04
369
242, 243
524
Catterton
y.
Latham
40
Cole
v.
Page
Landydale y. Cheyney
Lane y. Drink water
Langworthy y. Smith
Lansing y. Van Alstyne
Large y. Penn
154
51
51, 275
685
99
Witherington
Parsons
y.
y.
Ellis
Shorb
685, 707, 708, 711,

724, 726, 727, 72!),
781,785, F86
XXX111
Page
Page
Linderman v. Berg
Line v. Stephenson
Linn
2-27
Lyde
y.
Mynn
215, 479, 484,
Lytle
y.
The
Barkey
v.
Linsey y. Ramsey
Lisk v. Woodruff
Little
v.
Bishop
Paddleford
v.
Littlefield
v.
v.
Livingston
v.
Lloyd
v.
Quimby
Lockridge
v.
v.
Lomas
Foster
Sturdevant 27, 90, 364,
v.
Moore
v.
Moulder
v.
Steel
v.
Wright
Loomis
552
167, 169
622
622, 629
v.
Lock wood
Logan
191, 453
128, 145, 146, 365,
Tomkies
Baker
v.
Lobdell
41
41
v. Proseus
Jewell
641, 742, 643, 648,
661, 673
v.
Lloyd
Getchell
Peru Iron Co.
545
558
432
237
35
561
368, 373
Bedel
v.
552
412
63, 321, 342
412
589, 599
100, 247, 255, 272,
280, 281, 283,
319
414, 415, 418
y.
Pingree
Allen
v.
Israel
682, 685
113, 130, 131
v.
Long
v. Moler
Lord Cawdor v. Lewis
Lord v. Colley
v. Goddard
Lorick v. Hawkins
Lot v. Thomas
54,
78, 342, 458,
Williams
Sherwin
v.
Lougher
Lovell
325
621
622
524
Snell
v.
Lothrop
674
y.
y.
Levering
Lovering
Robertson
Lowell r. Daniels
Lowell, City of, y. Parker
Lowden
Loyd
y.
Griffith
v.
Luckett
y.
Lucy
Levington
v.
Ludwell
Newman
y.
Ludwick
Lukens
Triplett
v.
Huntzinger
y.
Jones
y.
Nicholson
Lunsford
y.
Turner
440
35
State
M.
McAllister
McBurney
McCall
Cutler
v.
Coover
v.
y.
McCarty
Leggett
McClenachan
48, 80, 86, 342,
Curwin
Croghan
v.
McClowry v.
McClure y. Gamble
McCoy
423
118
59, 320, 485
320, 355, 356,

600, 607
291
Lord
t.
McCracken y. Wright
McCrady y. Brisbane
McCrea v. Purmort
McCullough y. Cox
Me Daniel
345,
66, 67,
653,
673,
684,
236,
Grace
McDonald v. Green
y.
McDonnell y. Hunter
McFerran y. Taylor
McGehee
y.
McGinnis
y.
McGoodwin
Jones
Noble
y.
Stephenson
685,
719,
361,
McKay y. Carrington
McKee v. Pfout
McKennan y. Dough man
McKenzie
The
y.
McKinney
McKircher
y.
y.
Watts
Hawley
Barton
McLelland
224
607
589
McLemore y. Mabson
McMurphy y. Minot
y.
Me Williams
Mac-key
y.
76,
Kellet
y.
Mi-Knight
McLean
y.
Hill
v.
360
442, 446
54, 220, 275, 318,
Nisby
Collins
701, 702, 703
724
732
300
268
35
168,
301, 477, 480
553, 568
613, 717,
403
581
267
639
629
594
123, 671, 691
Maddock y. Wilmarth
236 Maeder y. City of Carondelet
687
336, 348, 351
252
446
352
291
657
676
685
247
622
691
720
362
674
440
130
City of Lex-
ington
460
477
573
434, 580
639
637
407
444
Reab
Lee
y.
y.
McAlpin
Magaw
y.
Lothrop
Magridge y. Jones
Maighley y. Hauer
Major y. Brush
Manatee y. Morrison
Manor
y.
Washington
Maney y. Porter
Mann v. Lent
718
637
67
660, 661
573
685, 694, 701
614
637
XXXIV
Page
Mann
Ward
v.
Manning
474
377, 380
Cox
i.
Markham
y.
Middleton
Markland
v.
Crump
Mario w
Marston
v.
v.
Craig
388
562
369
Hobbs
21, 22, 27. 54, 57,
63, 65, 121, 125
Martin
v.
Atkinson
v.
Baker
Dwelly
v.
v.
Foreman
v.
Gordon
68, 370, 372,
Arnolds
y.
Thompson
Brooks
Lovelace
Williamson
Avery
u.
Argyle
u.
Ewing
v.
Halsey
661
v.
Heller
392
v.
Long
Long
v.
Owen
Martin
Pace
v.
Parsons
v.
Watson
New York
v.
Mabie
7,
169, 479, 482

v.
v.
Fox
v.
Johnson
Whitt
Means v. Brickell
Medbury v. Watson
Medler v. Hiatt
Medley v. Watson
Meeker v. Meeker
Mellon
477,577
Bell
Catlin
319
27,52,90,125,137,
531,687
06
y. Ladbroke
335
Milnes v. Branch
Miner u. Clark
226, 229, 249
612
Minor v. Edwards
328
Misher v. Misher
v.
Mistier v. Granger
Mitchell v. Hazen
v.
Pillsbury
v.
Smith
v.Warner
Mobley v. Keys
Moens v. Hey worth
Monahan
Moore
66
196,
Aurioi
560, 561
569, 621
572
Mcllen v. Boarman
572
638
Mercer v. Hall
855
Merceron v. Dowson
Merrill v. Frame
477, 484
Merritt v. Hunt
684
M> i-iit v. Reynolds
480, 483
Mrtcalfe c. Archbishop of York 440
Michael v. Nulling
35
412
Middlebury College v. Cheney
614
MiddlekaufF v. Barrick
v.
223, 416,
71, 145,
v.
Mondell
129,131
622
237, 679,
165
606
614
683
682
419
255
497
684
684
198
640
v.
265,267
706
375
226, 231,
233, 249
v.
Miles v.
Miller v.
Mills
188,367,
372
35, 41
v.
v.
of
Me<?ee
Goodale
v.
Poole
Mead
y.
y.
Midgett
Midgley
280, 321
48, 339
434, 580
63
180
35
v.
495
Martyn v. M'Namara
572
Mason v. Caldwell
v. Crosby
621, 622
v. Ham
572
412
v. Mimcaster
Massie v. Sebastian
412, 427, 433
629
Masson v. Bo vet
Master v. Miller
346, 376
256
Mather v. Trinity Church
482
Maule v. Ashmead
477
w. 'Weaver
106
Maundrell v. Maundrell
369
May v. Taylor
319
u.Wright
126
Mayo v. Babcock
267
v. Shattuck
Mayor
Middleton
352, 354, 359,
Smith
v.
Marshall
74
Page
Middlemore
v.
v.
627
63,561,572
113
40
38,
112,114,293,
294, 342, 343
561, 674
620
66
Colgin
Steel
637, 639, 656
320
560
219
v. Lanhan
528
v. Magrath
68
v. McKee
400
v. Parker
412
v. Rake
718
v. Shelly
v. Vail
250, 255, 259, 260
Morgan y. Richardson 637, 647, 650
v. Smith
113, 126, 129, 132,
644, 674, 675
561
y. Swift
Morgan's Heirs v. Boone's Heirs 284
50
Morley v. Atteuborough
v.
v.
Cable
Harrisburg
v.
Morris
y.
v.
Polhill
Abat
Buckley
Bank
.riii
316
738

Page
Morris
v.
Edgington
181
XXXV
XXXVI
Page
Page
Parker
v.
Harvey
v.
Kelly
v.
Parks
i?.
Patrick
Parmelee
Brooks
Patterson
Bere
v.
Patten
v.
Strange
Arthurs
v.
v.
Hulings
v.
Lanning
v.
Moore
v.
Pease
Smith
Stewart
v.
v.
32
116,118,120
638
472
437, 447
412
154
93, 94, 135
684
420
Taylor
Patterson's Lessee
v.
England
v.
Kennedy
v.
McFarlane
v.
Taylor et
Frost
v.
Witman
Pease
671
170
v.
v.
23
320
362
224, 382, 414
v.
v.
Paul
Marshalls
v.
Partridge
Patton
589
380
559,561,561
216, 247, 283,

289, 309, 310
695
368
al.
226, 229, 232, 236,

277, 297, 309, 356, 606, 607
Paxson v. Lefferts
217,398
593
Payne v. Craft
380
626
525
v. Rogers
Pearson v. Morgan
Pecare v. Chouteau
Peck v. Smith
Peden
Moore
638, 667
v. Estill
154
v.
Peebles
v. Jackson
Mathers
Duval
Pelletreau
Pember
Pence
v.
51
409,410,441
Pharr
114,346
524
671
Reynolds
Decker
Sawyer 31
o.
v.
Phillips v. Claggett
Philips v. Smith
41, 44, 642

45, 234, 255, 260
377, 380
320
647
436
570
Pickering v. Busk
Picot v. Page
471
447
Pierce v. Emery
V. Johnson
23,31,342,381,
602
583
Piersoll v. Elliott
Pierson v. Davis
318
408
Piggot v. Earl of Salisbury
Phoenix Ins. Co.
Piatt v. Oliver
Pike
v.
Galvin
v.
Fiquet
224, 382, 412, 414,
415,427
Pimm
Mitchell
v.
Pillsbury
126, 127, 135,
343
591
r. Isall
Pincombe
v.
Pintard
Pitcher
Martin
Pitkin
v.
Rudge
9,
208, 213, 215,
300
629
v.
Livingston 58, 62, 64, 101,

135, 214, 325,326,555,559
Leavitt 100, 101, 226, 228,
233, 236, 283
v.
Plasket
v.
Beeby
596
Platt
Gilchrist
614, 679, 683

588, 600
589, 596
v.
Plumer
v.
Plunket
Poillon
Poke
170,321,342
Polk
674
609
245
587
717
99
717
Pennsylvania v. Simms
674
Peques r. Mosby
Percival v. Kurd
684, 685, 691
Perkins v. Webster
524
638
Perly v. Balch
Perrot v. Austin
600
705
Perry t>. Cotes
v. Edwards
170
v. Kline
412
Peter v. Farnsworth
570
Peters v. Grubb
294
v. McKeon
320
v.
Phelps
155
v.
Huston's Exrs.
Pence's Heirs v. DuvaFs Heirs
Pendleton v. Dyott
Penn v. Lord Baltimore
v. Preston
Pennell v. Woodburn
v.
Pettee v. Hawes
Petts v. Gaw
v.
v.
v.
Marchant
Penson
Martin
362
716, 718, 730
Kelly
v.
123
Pollard
48, 54, 57
135, 660
Sumpter
v.
Dwight
Pomeroy v. Burnett
v. Drury
y.
Pomfret
v.
561
Partington
Ricroft
552
606
Pool v. Pool
Poole y. Hill
Pope
v.
Porter
Potter
265, 266
Biggs
v.
Hill
v.
Noyes
100, 227
215, 294
77
69,123,124,560
224, 465
v.
Sullivan
v.
Swetnam
v.
Potter
400, 412
u.Taylor
132,342,580
Poulton V. Lattimore
Pounsett y. Fuller
Powell v. Clarke
v.
Lyles
477
637
59
.V.M
542
XXXV11
Page
Powell
Powis
121,
Manufacturing Co.
328,329, 331
606
Smith
v.
v.
Poyntell
v.
278,738
564
461
344,367
v.
Hobbs
v.
Trueman
23, 24, 112, 134,
136, 342
^.Williams
114,115
122
684
Preston v. Trueman
Prevostr. Gratz
Prewit r. Kenton
Price y. Ayres
226, 237
682
614
220
48
119
600
182
379
34
681
197
561
637
320
190
Neale
Pringle v. Whitten
v. Witten
Pritchard v. Atkinson
Proctor v. Johnson
i>.
v.
Newton
v.
Thrall
Edmonds
Puckett v. McDonald
Prosser
v.
Pudsey
v.
Newsam
Chesseldine
Pulcifer v. Hotchkiss
Putnam v. Ritchie
Pugh
Pye
v.
v.
Daubuz
0-
588
524
Quarles v. Capell
Quesnell v. Woodlief
R.
Radcliff v. Ship
Ralston v. Miller
Randall v. Rigby
Randell v. Mallet
v.
Kinney
v.Meeks
Ranelagh v. Hayes
Rant v. Cook
Randolph
246, 247
682
600
134
387
201, 219, 255
75, 155
'
Rantin
v.
Rathbun
Rawlins
166
Rathbun
412
684, 694
336, 609
v.
v.
Raymond
469
Robertson
Timberlake
v.
Fitch
v.
Raymond
v.
Squire
22, 23, 25
377
594
653
136, 138, 577
637
Reasoner v. Edmondson 52, 113,135,

275, 339
Rector v. Waugh 218,421, 437, 439,
447, 471
Redd
Wood
v.
Redwine
v.
Brown
114
White
v.
Prentiss
v.
247, 261, 277,
Spencer
Prebble v. Boghurst
Preble v. Baldwin
Prescott
Page
Rayner v. Watford
Reab v. McAllister
Read v. Pierce
134,
154
344, 352, 354, 359,
566, 584, 613
Reeder v. Craig
Reese v. McQ.iiilkin
412
93, 309, 312,
321
v.
Reggio
Smith
v.
Register
Renshaw
Braggiotti
v.
80,81,422,423
102
Rowell
438, 447
Gans
718, 720
v.
Buckle
Davies
245
199
Rice v. Goddard
642, 673
v.
342
Spottiswood
Rich v. Johnson
93
v. Rich
520
Richard r. Williams
592
Richardson v. Bright
626
v. Chasen
127
v. Dorr
27, 134, 342
v, Horton
591
v. McKinson
320
Rickert v. Snyder 54, 90, 101, 137,
244
Rickets v. Dickens
476, 524, 542
v. Weaver
336, 609
Riddell v. Riddell
377, 378
Rigby v. Great Western Rail517
way Co.
412
Rigg v. Cook
190, 453,456
Right v. Bucknell
d. Jefferys v. Bucknell
404
Roake v. Kidd
564
Roat v. Puff
524
Robards v. Cooper
661
Robb v. Lefevre
369
Roberts et al. v. Woolbright
685
Robertson v. Gaines
41 2
Robinson v. Bakewell
103, 132
v. Bland
43, 637, 647
v. Harman
59
v. Neal
54, 542
r. Wilson
637
Rockafeller v. Donelly
135
Rocksell v. Allen
573
Roe v. Hayley
608
Reynolds
v.
v.
XXXV111
Page
Roe v. Swezey
Roebuck v. Depuy
Roffey v. Shallcross
Rogers v. Colt
Cross
i>.
Horn
Payne
v.
v.
Roland
Roll
Romig
y.
Romig
James
v.
Romilly
Root
Miller
v.
Osborn
v.
Crock
v.
Roscorla t'. Thomas

Ross v. Deysarl
r.
Row
Dysart
v.
Turner
v.
Dawson
362,
Rowntree v. Jacob
Royer v. Ake
Rucker v. Lowther
Rufner v. McConnel
Russell
Ryan
v.
Clark
Atwater
v.
S.
Sacheverell v. Froggatt
Sainsbury-i\ Jones
Salmon
Salter
v.
v.
Hoffman
Kidley
v. Cooke
San born v. Woodman
Sanders v. Betts
v. Hamilton
San ford v. Handy
Sampson
Sargent v. Gutterson
Saunders v. Johnson
v.
Savage
Whithead
Cator
Schaffner v. Grutzmacher
Scherrnerhorn v. Hayden
Schlencker v. Moxsy
Scott v. Alworthy
Sawyer
v.
u.
Douglass
v.
Godwin
v.
Lunt's Admrs.
Scudder v. Andrews
Seabourn v. Powell
Seaman
v.
Browning
Barry
Tutor
Sedgwick v. Hollenback
Seaton
Seddon
v.
v.
XXXIX
Page
Small
Stannard
Aekerman
135, 660
v.
Babeock
Baker
Stapylton v.
Starke v. Hill
State w. Gaillard
v.
Cannell
622
422, 442
124, 459
v.
Compton
y.
Smith
Pajrc
Attwood 618, 619, 624, 627

463
Proctor
v.
v.
v.
v.
Shepard
517, 548
524
99, 154
403
614
621
407
622, 624
244
if.
Sillyraan
724, 732, 736
Evans
y.
v.
Ho well
Low
v.
Mercer
o.
Mitchell
y.
Pendleton
Richards
v.
o.
Simonds
336
23, 63, 65, 69, 70
Strong
471
v. Sweringer
and Wife v. Addleman
328
524
Snow v. Chapman
Snyder v. Lane
128, 129, 138
650
Solomon y. Turner
Somerville y. Hamilton
74, 237
Somes y. Skinner 89, 412, 413, 425,
v.
y.
Soper y. Stevens
Soprani v. Skuno
Sorsbie v. Park
Souders v. Vansickel
y.
Spring
y.
Steinhauer
y.
698
63, 247, 315, 324
237
355
Stevenson y. Lambard
466
Stevenson's Heirs y. McReary
Stewart v. Drake 101, 135, 138, 145,
243, 319
v. Eden
311
321
v. Noble
West
y.
Ashdown
r.
y.
Stinchfield
Stinson
St.
y.
Little
y.
Palmer
Cook
Smith
Stockton v.
Stoddart v.
Stoever v. Whitman
Stokes y. Jones
Stone v. Buckner
Patterson
v.
Peake
y.
Richardson
Jackson
673
362
566
135, 136, 138
174
34, 36
110
Morris
Stanard
r.
Eldridge
Stanley
y.
Hayes
Jones
y.
Eldridge
y.
Story
Stout
y.
Stow
y.
Stowell
588
463
572
Thomaston
Sumner
y.
John
181, 201, 217, 222,

226, 381, 602, 603
v.
58, 60, 62, 93,
33
Stephen y. Bagwell
Stephens y. Cooper
Sterling y. Peet
Stevens y. Jack
283, 290, 345
113
391, 400, 401
463
721
638
247, 422, 442,

525, 531
Witman 707, 709, 710,
711, 712, 713, 714,
722, 723
Baker 244, 249, 270, 282,
McLagan
v. Van Rensselaer
v.
Adams
Mitchell
Stehley y. Irvin
Steigleman y. Jeffries
Steiner y. Baughman
Stillman
71, 95
499
549
563, 564
671
704
626
67
557
Holloway
y.
Stimpson
101
Stannard
Ullithorne
Scott
y.
41
604, 605
Chase
v.
v.
Fowle
Hooker
Tongue
Spruill y. Leary
Squire y. Harder
Staats y. Ten Eyck
Staines
Forbes
y.
y.
Stack y.
StalUml
Steele
446
614
267
Souter y. Drake
562
South y. Hoy
342, 600
591
Spackman y. Trimbell
410, 412, 464
Sparrow v. Kingman
166, 715, 740
Spear v. Allison
604
Spencer y. Durant
y. Howe
127
y. Mar riot
172
Sprague
y.
99, 227, 238, 239,
y.
77,
691
717
35
421
684
674
247, 248
265
674
606
214, 319, 329
Stevens
y.
345
253, 256
Bennett
560
344
66
335
Street y. Blay
637, 643
660
Streeter r. Henley
321
Strode's Heirs y. Cox's Heirs
Strohecker y. Housel
472, 736
623
Strong y. Peters
380
y. Strong
466
Stroughill y. Buck
Strawbridge y. Cartledge
Streaper v. Fisher

Page
Page
Kissam
592
Templer
King
Page
651
63
Terret
Hearing
Summerville v. Jackson
Sumner v. Barnard
476
Tharin
734
438, 460
Thayer
Stuart
v.
Stubbs
y.
v.
Style
v.
v.
v.
Wentworth
580
Williams 93, 101,315,316,
v.
Sumter
Welch
v.
v.
220
166, 168
614, 621
69, 129, 130, 354,
359, 370, 377
Arighi
Sutton
y.
Suydam
v.
Jones
Swafford
Swan
v.
v.
v. Whipple 57,63,68,3 21
560, 561
Drury
Searles
Stranshan
Swasey v. Brooks
v.
Sweet
Swett
Swift
Brown
y.
Swenk
Stout
Patrick
y.
v.
484
600
176
529
226, 234
100, 101, 315, 606
Hawkins
v.
Symmes
v.
651
196
Smith
Dinsmore
v.
v.
Tabb
Clemence
Wendell
v. White
Thomas y. Me Can n
v.
y.
v.
Perry
Powell
v.
671
59
643
v.
v. Morrow
327, 328, 329
v. Sanders
354, 359
v. Shattuck
354, 359
412
Thorndike v. Norris
Thornton v. Court 361, 365, 377, 378,
379, 686
v. Wynn
637, 638, 649
Threlkeld y. Fitzhugh
319, 329
Thompson
v.
Binford
214
v.
y.
Debar
v.
Fleet
v.
7nt
Fulmore
Gilman
129, 584
Horde 7,15,16,45,47,256
v.
r.
v.
v.
Temple
v.
189,190,192,442
Needham
Owen
Partridge
v.
Christian
v.
Guthrie
Mansfield
Tibbets
r.
Tillotson
Ayer
Boyd
658,673
349
y.
Grapes
640, 642, 674
V.Kennedy
410,412,418
Conover
y. Harkinson
Tinney v. Ashley
Tisdale v. Essex
Tod y. Baylor
561
v,
623, 629
560
166
329
v. Gallagher
730, 738
Todd's Heirs v. Todd's Heirs
395
Tomlinson v. Smith
320
Tone v. Brace
477,478,479,683
Tourville v. Nash
708, 709
640
Toussaint y. Martinnant
Town v. Needham
352, 362
Townsend y. Morris
214, 342, 609,
610
Weld
69,130
Trask v. Vinson
Traver v. Halstead
673
560
558
469, 519
v.
Tremain y. Lining
Trem-hard v. Hoskins
Trevivan v. Lawrence 403, 404, 408,
623
404
835
402, 457
612
601
Throughton v. Throughton
Thursby v. Plank
Tindall
410
Stephens
570
Taggert v. Stansbery
Talbot v, Bedford's Heirs
219
642,647,652,
Tallmadge v. Wallis
656, 663
Tallman v. Green
156, 626
Taltarum's case
6
Tanner v. Livingston
90
63
Tapley v. Lebeaum
v. Lebeaum's Exrs.
65
606, 609
Tapscott v. Williams
648
Tarpley v. Poage's Admrs.
Tarwater v. Davis
561
31 1
Taunton Bank y. Richardson
621
Taylor y. Ashton
y. Brodrick
328
Taft
571
560
342, 346
572
561
622
24, 35, 48
614
Pickling
v.
T.
637
412
Taylor
Thacher
363, 477, 503, 504,

566, 567, 571, 580
Surget
Sutton
McLachlan
v.
413, 441
Triplett
True
v.
Trull
y.
v.
Gill
24, 31, 107
148
Haley
Eastman 223, 412, 415, 4 1C,
418,
Try on v. Whitmarsh
TuVker y. Clarke
-JLM)
W2
84, 4
2;.
xli
Page
Tucker
v.
Tufts
v.
Adams
Tuite
v.
Tulk
524
Cocke
100, 126, 134, 138,

147, 148, 151, 346, 360, 667
Miller 51, 156, 273, 274, 287
155
622
Turner v. Goodrich
100, 226
v. Harvey
623, 626
Tuscumbia R. R. Co. v Rhodes 696
622
Tuthill v. Babcock
Moxhay
v.
Turnbull
v.
Gadsden
Twambley
Twining
Young
674
v.
v.
Vernam
Smith
Smith
Vibbard y. Johnson
Vick v. Percy
Vigers y. Pike
Vernon
y.
v.
Vrooman y. Phelps
Vyvyan y. Arthur
283, 284
561, 565
409
284
263, 479, 482
300
64
612, 629
639
300, 477
w.
Wace
y.
Halligan
y.
Lindsay
89
265
483
41
y.
Linsley
412
Bickerton
y. Barnett
v.
Waddilove
Wade
U.
United States v. Howell

369
United States Bank v. Bank of
614
Georgia
University of Vermont v. Joslyn 255
41
Upton v. Barrett
v. Townend
245
Urmston y. Pate
614,617
401, 587
Urquhart v. Clark
V.
Mervin
Wadleigh y. Gaines
Van
Van
Van
Van
Van
Van
v.
580
y. Glines
434, 580
Wailes y. Cooper 666, 684, 686, 694
T
ait y. Maxwell
21, 54, 182
Wakeman y. Duchess of Rutland
567, 568, 614
Walden y. Bodley
268
478
Waldo v. Hall
y.
101, 138, 145, 233
Long
v.
256
41,
Fonda
Van Lew v. Parr 619, 685,

Van Nostrand v. Wright
Van Rensellaer v. Kearney
v.
701,
132,
Stafford
Van Riper v. Williams

Van Slyck c. Kimball
Van Waggoner y. McEwen
Vanada y. Hopkins
Vance y. House
Vancourt y. Moore
557,
624
569
368
355
421
702
52
455
362
680
110
680
570
685,691,692
359, 392
Vancouver y. Bliss
Vanderkarr y. Vanderkarr
563
219, 242,
289
Vane
v.
Lord Barnard 110, 134, 612,

725
d*
y.
411, 420
639, 649
66
y.
Waldron
Clemens
Brunt v. Schenck
Buren v. Digges
Epps y. Harrison
Eps v. Schenectady
Hoesen v. Benham
Home v. Crane
Valle
684,691,694
612
Morrice
Pickard
G wynne
v.
Tyler
24
Henley
355, 607
637, 647, 650
Twynam
Tye
y.
v.
Page
Vanmetre v. Griffith
Vardeman v. Lawson
Varick y. Edwards
Venable v. Beauchamp
Walker
y.
McCarty
242, 256, 258,

270, 271, 272, 273, 275,
281, 290, 389
Gilbert
684
v.
Hatton
y.
Moore
v.
Physick
Schuyler
Wallace v. Talbot
v.
Walton
y.
Bonham
99
59
477
329
91, 318
672, 692
Waterhouse
Bartholomew
Grayson
Trathen
v.
Ward
y.
y.
y.
Ware
Wark
Warn
Weathrall
Willard
r. Bickfbrd
Warner y. Daniels
Warwick v. Nairn
y.
v.
Washburn
y.
412,
187,
Picot
Waterhouse y. Stansfield
Waters y. Mattingley
y. Dean of Norwich
41,
Watkins v. Holman
268, 592,
264
570
685
612
318
927
198
622
637
650
43
622
213
594
xlii
Watkins
v.
Hopkins
Owens
v.
Watson
66
v.
Parker
588
561
133
567
432
441
257
477
380
602
621
545
t>.
Arnold
v.
Weale
35,
Lower
v.
Webb
w.
Alexander
v.
Russei
v.
Steele
403,
236, 242,
Webber v. Webber
Weeks v. Burton
Weenis v. McGaughan
Weiser
381, 592,
Weiser
v.
Wellesley
Wellman
v.
376, 380
YVellesley
Hickson
v.
v.
Austin
v.
Fydell
Wentworth
Cocke
Goodwin
Blake way
v.
West
o.
v.
v.
Spaulding
Stewart
Westbrook v. McMillan
Whallon v. Kauffman
Wheat
Dotson
v.
White
Cook
v.
Damon
v.
Erskine
v.
Foljambe
v.
Lowry
v.
Wilford
Wilkins
McKane
v.
Rose
v.
Fry
Hogue
v.
r.
Burrell
v.
Claiborne
v.
Hathaway
Hogan
v.
v.
25, 29
93,
320
384, 477, 485,

493, 600, 601
408
480
38, 41, 609
43
Mans
v.Matthew
v.
311
Presbyterian Society 40 7
412
v.
Thuriow
702, 705
v.
W eatherbee
495, 524
638, 661
v.
Wetherbee
219, 226,
236, 312, 342
275, 354,
359
Williamson
v.
Codrington
v.
Raney
158, 160,
Willis v. Aston
Wills v. Cowper
Wilson
t;.
51, llti, 119,
v.
121, 580
v.
564
224, 382
566
Baptist Society
SI 9,
Cochran
Forbes 24, 45, 49, 63,
218
614
569
43
639
573
65,
v.
Jordan
v.
Knubley
342
668
590, 597, 598
v.
McElwee
226, 233, 249,
74,
279
138, 140, 144, 14*,

319, 323
Williams
Whiting
v.
Fit/patrick
228
555
v.
Carr
Gotwalt
v.
o.
v.
147, 273, 316,

352, 355, 357, 360, 362
Whitney
Whitehill
Wiley
713
674
420
455
619, 629, 631
601
695, 699
54
566
684
Shelton
66
v. Short
34
Willson v Willson 63, 108, 134, 136,
v.
Whitehead
Gibson
v.
Wildridge
440
721
Patten 427,430,431,432
576
San born
v.
Wilde
McGimpsey
Wight v. Shaw
Wightman v. Reynolds
Willard v. Twitchell
Williams v. Beeman
609
20, 22, 24, 45
v. SohieV
354, 357, 359
v. Wheeler
376
420
Wheelock o. Henshavv
v.
294, 342
Thayer
Whisler v. Hicks
185, 660, 660
v.
v.
265
Wheatley y. Lane
Wheeler v. Hatch
Whitbeck
Lancaster
Wiggins
35
403
600
600
643, 659
369
175
53, 295
v.
v.
Whitney
472,473
Welch v. Mandeville
Weld v. Adams
Wells
Dinsmore
273, 346
v. Lewis
647, 651, 653
Whittaker v. Cone
38, 39, 40
Whittin v. Peacock
386
Whitworth v. Stuckey 684, 685, 701
Wiedler v. Farmers' Bank of
Elaine
v.
Way
Page
674
157
o.
Waddle
Wellman
Waugh v. Land
Watts
Page
v.
Dewey
v.
Nissly
Whit more v. Casey

Whitney v. Allaire
475, 489, 524,

541
94, 531,
572
63
233
629
v.
Wilt
v.
Winne
Franklin
v.
Reynolds
Winston v. Gwathmys
Wintrrbottom v. Indium
With.-rs
o.
v.
Atkinson
Baird
66
560
_'_'
1.MJ.S
718, 780
555, 718
xliii
Page
Withers
Bircham
Green
v.
v.
606
638, 649
683
Morrcll
r. Anderson's Exrs.
v.
Page
Wyche
434
Wright
Macklin
422, 440, 442
v.
Ballard
134, 138, 345,
v.
Brigden
138, 145, 150,
v.
Harman's Devisees
v.
v.
Wyman
Witherspoon
Shaw
v.
Wright
651
318
Withy
Witty
Mumford
v.
v.
Hightower
Wolbert v. Lucas
Wolfe v. Hauver
Wood
Me Quire
t.
Woodfold
v.
Blount
Jenkins
66
35
556
174
Woodhouse
v.
Woodruff'
Bunce
683,685,693
1 70
Greenwood
v.
v.
Woods
v.
North
Wood worth
v.
Allen
247, 285
Janes
39
Woollam r. Hearne
129, 131
566
Worley v. Frampton
59
Worthington v. Warrington
v.
Johnson
566, 572
196
v. Cooke
v. Hele
166, 167, 169, 182,
579, 580
692
Wray v. Furness
437
Wright v. Hen on
Worthy
Wotton
v.
v.
Meek
667
Wyse
r.
35
420,
529
601
Snow
Y.
Yancey
48, 426, 648, 681.
685
Woodward
376
353, 359, 388

219, 248, 255,
275, 311, 685
731, 733, 734
v.
v.
Holladay
Lewis
Yelton v. Hawkins
Yelverton i. Yelverton
Young
v.
Adams
v.
Bumpass
v.
Burnham
v.
Covell
?'.
Hargrave's Admr.
v.
Harris's
r.
Hopkins
v.
Matthew
v.
McClung
v.
Raincock
Admr.
754
166, 682
68, 235
440
614
626
627
621
476
619
626
321
685
17,48, 120,
336, 465, 509, 609
COVENANTS FOR
CHAPTER
TITLE.
I.
THE ANCIENT WARRANTY, AND THE INTRODUCTION OF

THE
introduction and use of " covenants for
"
title
in
common-law warranty was one of the earlier of

what may be termed innovations upon that system which
The change was
has had such able and devoted admirers.
place of the
so necessary and the alteration so little startling, that it

excited none of those anxious misgivings which have since
accompanied
man,
to
changes, and Sir Orlando Bridghas been ascribed the bringing of these cov-
less material
whom
enants into general practice, seems to have had his professional eminence, as a common-law Judge, undisturbed by
Yet, with
any imputation of an undue desire to reform.
their introduction, one of the most abstruse and subtle subjects in the
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-
THE ANCIENT WARRANTY, AND THE
lantic,
of
where the absence of the law of primogeniture would,
itself,
all its
have prevented the application of the doctrine, with
common-law
incidents.
sketch, however, of the law as
it
formerly existed in
not
be
to
an adequate commay
unnecessary
has
of
the
which
superseded it.
prehension
system
By the
this respect,
feudal constitution, if the vassal's
had received
might
call
at the
upon
title
hands of his
to the fee
lord,
which he
were disputed, he
the lord or donor to warrant or insure his
he failed to do, and the vassal were evicted,

the lord was bound to give him another feud of equal value
gift,
in
which,
if
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

a liability which
tenant in his fief or to give him another,
descended to the heir of the grantor as long as he had any

1
it.
This warranty was originally created
lands to answer
without any covenant to that
effect
it
was a
natural
incident of tenure.
When,
subsequently, it became usual to authenticate the

by a charter, or deed, the word of feoff-
transfer of lands
"
As early as the year

dedi," implied a warranty.
the
statute
was
de
1&72?
bigamis*
declaratory of the etfect
" In
the
to
the
use of this word.
common
law
attached by
ment,
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
agreed that the givers and their heirs shall be bound to
is
Sir
Martin Wright, in
his intro-
duction to the laws of tenures, pp.

27-32, &c., seems to think this could
only have been
so,
in
the case of
and that it was unimproper

likely that where a feud was generfeuds,
ously given, the lord should be held
make good its

much
to
loss
the question
by the
has been
discussed
civilians,
but the weight of author-
ity
I have statnl it
See Mr. Butler's note to Co.
seems to be as
above.
Litt. 365.
2 4
Ed.
I. c. 6.
INTRODUCTION OF COVENANTS FOR TITLE.

"
" and even if there

be," says Coke in his
1 "
an express warranty in the deed,
this statute,
not away the warranty that is wrought by
yet that taketh
force of the word dedi, but the feoffee may take advantage
warranty
remarks on
;
either of the one or the other at his pleasure."
Hence
it
would seem that those warranties which naturally flowed as

of feudal tenure, could
part of the reciprocal consequences
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
service, without
feoffbrs
homage
their heirs shall not be
bounden
ing the feoffbr during his

shall be
bound
to
or of their heirs, reserving no

without the foresaid clause,
or
own
warrant
to warranty, notwithstand-
life
"
by
force of his
own
gift,
other words, where no
in
tenure between the grantor and grantee was created by the

word dedi implied a warranty merely by the donor
gift, the
during his life, and not one which would impose an obligation on his heirs.
of quia emp tores 3 prohibited subinfeudation by declaring that it should be lawful for
every freeman to sell his lands at his own pleasure, and that
few years
after, the statute
the feoffee should hold the lands of the chief lord of the fee,
by such service and customs as his feoffbr was bound to

This put an end to homage as an incident of tenbefore.
ure,
which was the consideration of implied warranty, and

it resulted that, from this time, the word dedi, in a
hence
1
2 Institutes, 275.
Anne,
This
to the
is
the earliest instance of
c.
35, giving a certain effect
words "grant, bargain, and

an act which has been adopted,
statutory enactment bestowing a certain signification to the words of
in substance, in
conveyance, and may not unreasonably be presumed to have afforded
See Chapter X.
3 18 Ed. I. c. 1.
the precedent for the statute of 6
sell,"
many
of our States,
4<
conveyance
in
merely implied a warranty during the

If, however, the conveyance left any
fee,
of the donor.
life
reversion in the donor, the implied warranty still subsisted,

since the donee still held of the donor as before the stat-
and consequently the warranty bound not only the

donor but also his heirs. 1
ute,
As warranty by
implication
thus became in
many
in-
stances a
mere personal
annexed
to the estate granted, the practice of

introducing
contract, instead of a real security
express warranties (which though sometimes employed before that time, were by no means
general,) became almost
universal.
Their
effect
was
twofold.
upon his donor to defend his

could recover an estate of equal value
could
call
First, the
title to
in
grantee
the land, and
case of eviction.
And secondly, the warranty operated as a rebutter, by barring the warrantor and his heirs from claiming any portion
of the estate so granted with warranty.
Every warranty
which descended upon the heir of the warrantor was operative to prevent the heir from recovering back any lands
against the warranty of his ancestor. The law of warranty,
and the law which gave the entire inheritance to the eldest
son were coeval.
Still,
there might be cases in which this
estoppel of the heir's claim would work a hardship to him.

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
The word
"
"
give
is
seldom or
never used in modern conveyancing,

but in the event of its introduction
into a
in
conveyance passing an estate

parts of this country in
those
which the statute of quia emptores

is
not in force, (as in Pennsylvania,)

become of pr;ir-
these remarks might

tical
8 6
importance*
Ed.
I. c. 3.

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
They were terms unnecessary now to enter.
known in the earlier days of the common law. There was
no difference between them.

tinction until
more than four
No
statute recognized the dis-
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

which was as unpalatable to the crown, as. it was
to a height
Nor was it
galling to the trading and industrious classes.
less distasteful to the
in
sons,
who,
consequence of
younger
the unalienable nature of the estates in
were without provision from
created,
saw
tail
which the statute
their fathers, the ten-
when
was
ants in
tail.
late.
In every successive Parliament, from Edward the

Edward the Fourth, bills were introduced to repeal
All of these
the mischief
it
too
First to
the statute de donis, but the
power of the great lords resisted these

attempts with success. There was then nothing
left but to elude the statute
by every ingenuity which law
The first means was by colyers and judges could devise.
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
the
son, still would not debar him
upon
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
i
i*
is Ed.
I. c. 1.

But
given after their death."

in tail,
who had nothing
the brother of this tenant
if
to say to
it,
and who was
collateral
respect of it, joined in this alienation with warranty, or

released to the alienee with warranty, and died without
in
issue, so that the son of the tenant in
tail
became
his heir,
warranty, called collateral to the entail, bound, as at

therefore, by
law, the son of the tenant in tail
this
common
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
All efforts to counteract this
from the statute de donis.
1
Nearly two centuries elapsed before collateral waranties, as a means of evading this statute, were
succeeded by fines and recoveries, which, invented at first to
ingenuity failed.
evade the statutes of mortmain, were fitly turned, after their

office in that respect had been suddenly checked, to elude
the statute de donis?
i
Littleton,
720, speaks of
one
Jude Richel, a Judge of the Common

Pleas in the time of Richard
created a tenancy in
tail
mainder, to his second
II.,
who
with re-
and other
and provid-
rather than reason
and the
satisfac-
tion of Littleton at this triumph
is
echoed by Coke, who holds up " such

novelties
"
new
"
as examples, to
show
that
inventions in the assurances
sons successively in tail,

ed that in case of alienation by any
tenant in tail the estate should im-
Such a
of the law are dangerous."
contest also took place after the stat-
mediately vest in the next tenant in

remainder. This, he thought, would
levied with proclamation should be

conclusive to bar estates tail.
Simi-
effectually preserve the entail in its

for the first estate would, upon
purity,
lar conditions
alienation,
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
,
per-
in
i\c that henceforth all tenancies
tail
-iinilar
all
would be accompanied
by
restrictions.
Consequently,
these remainders were held to be
void upon grounds of
technicality
ute of Hen. VII. declared that fines
were imposed
in
the
creation of the entail, and were similarly disposed of.

1
This arose from Taltarum's case,
12 Ed. IV. case 25, and it is a remarkable instance of how the original
meaning of a
statute
can
In-
overlaid with interpretations aflixcd

to it, that the power to sufler a com-
mon recovery
has been repeatedly
"a
an
privilege fnwparaWy
estate tail," and one
held to be
incident to
not difficult to imagine that the doctrine of collateral
It is
warranty, sprung from such an origin, and used for such

in the course of centuries be involved in
purposes, should
Chief Justice Vaughan, " If Littleton
subtlety, and, says
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
11 Hen. VII.), his doctrine of warranties had

been more clear and satisfactory than it now is, being intricated under the terms of lineal and collateral, for that in
a third
truth
The
the genuine resolution of most if not

2
statute of Henry the Seventh, to which
is
here refers,
is
similar in
ute of Gloucester, and
all
his cases."
Lord Vaughan
protecting influence to the statdeclares in substance, that a war-
its
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.

that of
&
To
5 Anne,
tenant for
life
reversion,
and
are
all
c.
these restricting statutes
16, by which
all
was added
warranties by any
made
void against those in remainder and

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
It is the first in which the words " collateral warStates.
ranty" are found, and has been generally considered as

consigning most of the intricacies which attended it, to the
which cannot be restrained by concustom, recognizance, statute, or covenant. Seethe
dition,
limitation,
argument of Mr. Enowler

v. Horde, 1 Burrow, 84.
1
Vaughan's Rep. 375.

11 Hen. VII. c. 20.
in
Taylor
research of the curious.
Finally, upon the report of the

Real Property Commissioners, warranties, with all real
1
actions, have been entirely swept away.
The remedy on a warranty was by
writ of warrantia
As a form of action
chartce, or by voucher to warranty.
merely, that of warrantia char tee appears to have been as
simple as the action of covenant, and the difficulties connected with it arise rather from the abstruse doctrines of
warranty than from the organic principles of the action

difficulties which would occur in any other form of proceeding which would seek to enforce the rights acquired by
warranties.
warrantee might implead his warrantor
either before or after eviction.
brought as a
The
was frequently
as soon as there
action
mere precautionary measure,
was reason
to fear the loss of the land through a defect of

and
the
;
judgment then obtained in the warrantia
chartcB) which was called a judgment pro loco et tempore^
title
bound
the lands of the warrantor from the day on which

the writ issued, so that if the lands warranted were afterall
wards recovered from the warrantee, he in turn recovered

the same value of land from the warrantor or his heirs.
The
effect
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 chartce, to investigate also the

had been conveyed with warranty. 2
The
practice of voucher, on the other
complication and delay.

1
&
c. 74,
So,
title
The warrantee
of those which
hand, tended to
called
upon the
14.
conveyancers called a "double tiBut

tie," which was very onerous.
by the common law, upon
by a recent English
4 Will. IV.
c.
27,
39;
id.
statute (8
&
every exchange a warranty was implied, giving to the evicted party a
Viet. 106) deeds of exchange ha\v

no longer the effect of creating any
upon the land he

had parted with, producing what
warranty or right of re-entry, or covcnant by implication.
right of re-entry
\)
warrantor or his heirs to come into court and defend the
him other lands of equal
land, or yield
value.
This requi-
was termed a voucher to warranty. If the vouchee

appeared, he was made defendant instead of him who had
sition
made dewas
given
appearance, judgment
any way
against the warrantor, and at the same time judgment that
If he failed to appear, or*
thus called upon him.

in
after
the warrantee
recover lands
fault
But
there were
voucher was only admissible
continuances
and not
many
of equal value against him.

writs and returns, false vouchers and
From analogy
in all of those.
in real
actions,
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
under
subject-matter
hereafter.
inquiry,
will
be particularly noticed
The judgment both
in
warrantia char tee and
voucher to warranty, seems to have been limited in
in
its effect
which might still belong to the

case of his death have descended to his
to the lands of equal value,
warrantor, or in
But
respect to estates less than freehold, the

warranty might be used as a personal covenant, upon which
2
damages were recovered, so that a warranty was a coveheirs.
in
nant real when the freehold was brought in question, and
See
infra,
Chapter VII.
As is shown by the case of Pincombe v. Rudse, Hobart's Rep. 3,

where the defendant had granted a
freehold with warranty, having previously demised the premises for a
term of years.
The
lessee entered
upon the grantees, who brought an

action of covenant on the warranty,
and demanded damages from the
warrantor,
who pleaded
him by them,
undetermined.
On
chartse brought against
which was
still
a warrantia
demurrer to this plea, the question

whether upon the clause of
warranty annexed to a freehold, an
action of covenant would lie, which
was decided affirmatively, because although the warranty was annexed to
the freehold, yet the breach was not
arose
of a freehold, but of a chattel (viz

the lease for years, which had been
the first estate created), for which

there could be neither a voucher, rebutter, nor warrantia chartae.
10
operated as a personal covenant, where the loss sustained

1
did not draw away the freehold.
Of
the effects of these real actions since the introduction
we may judge from the report in

of
the
183,
Parliamentary Commission, and the interesteminent practitioners which accompanies
ing" evidence of the
of more modern forms,
It is there said,
it.
"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
system of law, and from the result, we have every

it would have been beneficial to the
this
reason to think that
community,
when
if real
modern
the
actions
had been abolished from the time
action of ejectment
was
devised.
They
have generally originated in schemes of unprincipled practitioners of the law to defraud persons in a low condition of
of their substance, under pretence of recovering for
them large estates, to which they had no color of title. In
life
many
instances ruin has been the consequence to the
de-
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
mandants
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 indispensable to the comprehension of laws based upon it,
seems to have confirmed this opinion, and the recommendation of the
But a
vital objection to the application
For the proceedings on a war-
rantia
had
Commissioners met the sanction of Parliament.
chartae,
reference
to Viner's Abr.
Chartae;
tit.
Fitzherbort's
may be
Warrantia
Nat.
Brev.
134; Booth on Real Actions, 242;
Roll
v.
of the doctrines of
Osborn, Hobart, 206
and
for
the writs and practice in voucher to

warranty, Viner's Abr. tit. Voucher ;
and the note

32.
to
Saunders' Rep.
11
warranty to this country arises from our system of descents.

it
Warranty descended only on the heir at common law
alone
operated as a rebutter on him
of equal value.
England where the peculiar tenures
bound him alone
it
In those parts of
of gavelkind and
to render other lands
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 cen2
being, as is said in the preface to Sir Orlando Bridgman's Precedents of Conveyances, " advised by him during
tury,
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
ment from
and constancy, than a
strict retire-
public affairs."
all
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 without interruption, called the covenant for quiet enjoyment ;
fourth, that such should be the 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
was called the coveThere was another covenant,
to perfect or confirm the title
nant for further assurance.

Brooke's
pi.
11
Abr.
tit.
Assize, pi. 22.
Garranties,
in the older books,
Litt.
to hereafter,
735,
they were
736.
2
this
Many
sional
instances of their occa-
and separate use
will
be found
but
first
it
and be referred
is
believed that
employed, collectively
and generally,
as
warranty about
this time.
substitute
for
12
which, though somewhat of a mixed character, and but
dom employed
sel-
more rarely after the introof

those
duction
just named, was yet brought to this country
where it has taken deep root, and grown
our
ancestors,
by
before and
to be the covenant for title
This
than any other.
is
still
more employed and
relied
upon
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 effective
Yet notwithstanding
nature of the remedy.
the improve-
ments arising from the change, the excessive length in

which these covenants have been, until very lately, expressed
English conveyances has been the subject of great and
merited complaint, more than half their tedious length being
in
occupied with the covenants for title, elaborated with every

addition which caution or profit to the draftsman could sup1
But upon this side of the Atlantic, alply or suggest.

are
not wanting of deeds embellished with
instances
though
every refinement of English conveyancing, yet the simplicity
"
Few conveyancing forms," it is

" can exceed them in the luxusaid,
riant growth to which their verbiage
1
has attained."
pied
much
Williams on
They
dinary conveyance.
&
Real
usually occumore than half of an or-
Property, 377.
The
9 Viet. c. 119, (see in/ror,
"
X.,) called
An
statute 8
Chapter
act to facilitate the
conveyance of real property," has

endeavored to mitigate this evil by
giving to short forms all the effect of
the covenants as usually expressed at
length.
whom
An
English conveyancer, to
I could safely refer, as to the
practical operation of this statute, has

in reply written, " So far as my experience goes, the 'pattern' cove-
nants are not liked, and are but
little
used
our conveyancers find them
and
maof cases mostly neglect them
suited to but very simple cases

finding them insufficient in the
;
jority
Probably our brethren

altogether.
in the country towns see more virtue
in
them than we
do,
and I believe
they sometimes use them."
most recent English

over, the statute
ferred
is
In the
treatises,
more-
but casually re-
to.
The
spirit of reform, however,

which gave birth to it, has produced
a marked effect upon this part of the
practice of English conveyancing
as is shown by all the collections
of precedents, &c., which have is;
sued from the press within the

four or five years.
last

which characterized the early
colonists,
added
13
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 almost every conveyance of real property in the United States
and are practically enforced every day, yet that their effect,
and the rules which govern them, are less reduced to order,
and less understood as a system, than almost any other simbranch of learning.
Yet, with all this, it will be found
that far less practical contradiction exists than would have
ilar
The
been supposed.
harmonious
eral,
cases admit of distinct, and, in genand it is hoped that this
classification
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
others of equal importance. 1
many
It is proposed in the
following pages to consider the covenants for seizin, for right to convey, against incumbrances,
for quiet
enjoyment, for further assurance, and of warranty,
and separately, examining in each its form, definiscope, and the measure of damages consequent upon
in detail
tion,
its
breach.
covenants for
1
Then
title
will be considered the extent to
which
run with the land, and herein of their
These remarks are
so elemen-
the
authorities
there
referred
reto.
tary that authorities have not been
Great
produced in support of every part of

them.
Those which have been
chiefly relied on are Co. Litt. 365 to
394, and the very satisfactory notes
of Mr. Charles Butler Mr. Preston's
from the elaborate notes of Mr. Hare,

to Spencer's case and the Duchess
of Sheppard's Touchstone
Lib. vol. 30 and 31)
Viner's
"
tit.
and
edition
(Law
Abridgment,
Voucher,"
profit
may
also
be derived
of Kingston's case, in the American

edition of Smith's Leading Cases,
Third Report of the English

Real Property Commissioners, and
the Report of the Pennsylvania Corn-
the
missioners in 1835.
THE ANCIENT WARRANTY.
14f
and discharge
by way of estoppel or
the doctrine of implied covenants, and how far
rebutter
covenants for title, whether expressed or implied, may be
lease
limited or qualified
their operation
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
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
assignee
and
or defect of
lastly,
title.
THE COVENANT FOR
CHAPTER
15
SEIZIN.
II.
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
1
property, and in order that it should be legally complete,

This seizin
there was required juris et seisince conjunction*
denoted the completion of that investiture by which the ten-
ant
was admitted
into the tenure
without
it,
no freehold
The delivery of possession

could be constituted or pass.
the "livery of seizin"
was the essential part of a feudal
transfer, and the deed which accompanied it, the mere authentication 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

of the owner of the freehold.
law, as
when
deemed
to be the possession
There was
after a descent, the heir
also a seizin in
who had
the right of
possession, though he had not actually entered, was deemed,
Co. Litt 344 b.
2 It
was
er droit droit.
ler's note,
2 Bl. 195.
also called jus duplicatum
266
Co. Litt. 266 a; Butb.
Taylor d. Atkyns v. Horde, 1

Burrow, 107. To this there was one
exception, in the case of a fine,

which was a judicial acknowledg-
ment, in a feigned action, by the

person in possession, that the right
was in another.
THE COVENANT FOR
16
SEIZIN.
some purposes at least, seized of the freehold, while the

1
possession was vacant and until it was occupied by another.
for
Warranty, in that day the covenant for
companied the
title
which ac-
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
the union of the right and the possession.
Although the
latter might not be actually disturbed,
yet he who had received the warranty could, by means of a zuarrantia chartce
is,
quia timet, obtain a present lien upon the other lands of his
warrantor, if the right of the latter were shown to be de-
When the possession was disturbed, execution

It was therefore intended
could issue upon this judgment.
to protect both the jus and the seisina.
fective.
The inconvenience and

At
jects
this lapse
require
to
of time, few subbe handled with
greater delicacy than those of seizin and disseizin

the latter, which
bears the reputation of being " one
of the most obscure and difficult in
the
law"
erty, 14),
(1
Cruise on
Real Prop-
having caused much
dif-
ference of opinion, as to its essence

and operation, between the most dis-
however, held that mere acts of

trusion or trespass followed by a
seized
575
578
hold with all its rights and incidents,

defeasible only by the lawful owner,
whose right of entry, however, was

taken away by a descent crust on the
heir of the feoffee.
Lord Mansfield,
this
Goodright
Doe
stracts,
ofTment by him, passed to the feoffee

an actual immediate estate of free-
and
doctrine has been
since generally adopted in the English cases (Jerritt v. Weare, 3 Price,
Burrow, 60, the principles

ably shown
by Mr. Knowler to be, that a wrongful possession by a
stranger, and fe1
common law were
fe-
should elect to consider himself dis-
388),
stand
Horde,
in-
offment, could not thus turn the lawful owner into a disseizee, unless he
suffiIt is
tinguished authorities.
cient here to notice, that in the wellknown case of Taylor d. Atkyns v.
of the
common-
notoriety attending these
v.
v.
Forester,
Lynes, 3 Barn.
notwithstanding
the
Taunt.
&
Cress.
earnest
made against it by Mr Preston

and Mr. Butler; Preston on AbLitt.
279;
330
b.
Butler's
note to
Co.
In America, the cases
which are collected in the Digests

under the head of" Seizin and Disseizin," have reference almost exclusively to what constitutes an adverse
possession under the limitation acts,
as to which, the cases are class! Cu-d
in the late Mr. Wallace's note to the
above case of Taylor

2 Smith's
v.
Leading Cases.
Horde
in
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
which elapsed between this period and that of the

Restoration, the whole system of conveyancing was in a
a half
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
The word
seventeenth century came into general use.
" seizin " seems
gradually, during this time, to have been
looked upon less as one of the parts of a title, than as
synonymous with title itself, and the covenant that one was
seized in fee, was regarded as a covenant for the title? in
contradistinction to the covenant for quiet enjoyment, which
was called a covenant for the possession? and such has been
England down
the case in
nant
is,
therefore, in
Cooke
v.
it,
Fowns,
3 Keble, 745,
vey, though not seized of the estate

which would pass by the convey-
Mayo,
Howell
v.
Richards,
13.
ance.
Com.
improper, and should

be omitted, and in its place substituted such as the nature of the
r.
They
for
seizin, as
expressed above, im-
plies a right to convey, (Nervin v.

Munns, 3 Levinz,
yet the con-
4G,)
verse of this will by no
covenant
East,
Wright, 2 Bos. &

are, however, far
from being synonymous covenants in
all respects
as although a covenant
Browning
In such cases the
11
Kaincock,
Bench, 310.
Pull.
used, has almost
the instances being numerous, in

which one has a good right to con-
v.
v.
when
Keble, 95;
Levinz, 46.
Young
for seizin, which,
Gregory
cove-
respect, synonymous with that

viz
that the grantor has good
755.
641
The
The covenant
S. C. 1
this
which usually follows

right to convey.
to the present day.
means
2*
hold,
for
seizin
is
case requires; as, in a conveyance

under a power, that the power still
and has not been exercised

4 Cruise on Real
Property, 78; 2 Sugden on Vendors,
510; Dart on Vendors, 259. See
subsists
or revoked, etc.
in/ra,
Chapter
III.
THE COVENANT FOR
18
invariably the
has been,
estate
form
"
in
SEIZIN.
place in the series of covenants for title,

applied to the conveyance of a fee simple
first
when
England, generally introduced
the following
in
And
the said
agree to
(grantor) doth hereby for himself, his

and administrators, covenant, promise, and
and with the said (grantee) and his heirs and as-
signs, in
manner
heirs, executors,
(grantor)
is
now
that he the said

following, that is to say
1
seized
to him and his heirs of a
good,
:
sure, sole, lawful, absolute
itance in fee simple, of

2
hereby released,
and indefeasible
and
in
estate of inher-
the said
messuage, &c.,
or otherwise assured or intended so to be,
and every part and parcel of the same, with the appurtenances, without any condition, trust, power of revocation, or
of limitation to use or uses, or any other
power, restraint,
cause, matter, or thing whatsoever, to alter, change, charge,
defeat, revoke,
make
void, abridge, lessen, incumber, or de-
termine the same estate or any part or parcel thereof."
Simpson, Buzby's
In the late case of Hagler v.

Law R. (N. Car.)
quire enrolment tinder the statute of

27 Hen. VIII. c. 16, and is besides
384, the grantor covenanted that

he was "signed" (in mistake for
" seized
") of an indefeasible estate,
better capable of sustaining limitationsofuses.

The objections against
notoriety which there prevail, are in
which the Court held to be
this
fatal to
country rendered idle by our
the grantee's recovery thereon, as it

had no power in that form of action,
recording acts.
3 This is a form of the covenant
to correct the mistake.

a The words "
when used
bargained and sold,"

or more probably "granted and con-
veyed," would,
generally
in
which
this
at length.
presumed, be
instead of "re-
covenant was expressed

It
England a
is
American conveyances,
in
leased,"
it
inserted
lease
is
familiar,
that in
and release has been
the mode of assurance generally

adopted in modern conveyancing,
and had an advantage over a bar-
gain and
sale, in that it
did not re-
in the
conveyance of a
It will
fee simple estate.
of course
be modified according to the estate

intended to be conveyed. The form
in
text has
the
from
been taken
Other
Covenants, 306.
forms will also be found in the fourth
Platt
on
volume
pp. 5, 6,
of
Wood's
however, rarely
the most
Conveyancing,
This covenant is,
7, etc.
if
ever employed in
modern English deeds
that
for right to convoy brini; substituted

in its place, (see w/ra, Chapter III. ;)
THE COVENANT FOR
SEIZIN.
19
thus expressed, the covenant is what is termed a

or absolute one ; that is, a covenant for
general, unlimited,
As
the seizin of the grantor, without regard to the prior acts

of any persons ivhomsoever.
When, however, as is almost
the vendor is only willing
invariably the case in England,
covenant against defeasibility of the estate by reason of

his oivn acts, the covenant, which is then termed a special,
" And the said
limited, or qualified one, is thus expressed
his heirs, executors, and
(grantor) doth hereby for himself,
to
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, ly him the said (grantor) done, executed,
committed, or Jcnozvingly permitted, or suffered

trary, he, the said (grantor) is
now
seized,"
to
the con-
&c.
This covenant has been defined to be " an assurance to

the purchaser that the grantor has the very estate, in quan-
which he purports to convey," 1 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
tity
and
quality,
exact compliance with this definition has been held sufficient

to prevent its breach.
But
covenants for
marked
and
in
form
as has been before remarked, the

title
are expressed constitutes
between conveyances in this country

England, and however general, therefore, may be
distinctions
the expression of the covenant for seizin
form
which the
one of the most
in
in that
country,
it
is,
on
by
the preceding
this side of the Atlantic,
usually couched in the briefest terms
the words, " that
" has a
he, the said (grantor) is lawfully seized," or
and, whenever used,
it is, I
apprehend, expressed much more briefly
than when Mr. Platt wrote, which
was in 1829. No forms of this cove-
good
nant are given in the most recent

English precedents,
l Howell v.
Richards,
641, per
11
Lord Ellenborough.
East,
20
THE COVENANT FOR
and
sufficient seizin,"
SEIZIN.
being not unfrequently the only ones
employed.
At
the time
duced, owing
when
these covenants were originally introto the sense in which the word seizin was
synonymous with
used, as
title,
a covenant expressed in this
short form had, in the mother country, the

import as the longer form which succeeded
same
practical
and a cove-
it,
nant that one was seized, or lawfully seized, meant seized

of an indefeasible estate. 2
But in a few of our States, a
and peculiar construction has been adopted, by de-
different
" that the

grantor is lawfully seized,"
ciding that a covenant
"
or
has a good and sufficient seizin," does not exact an in-
answered by the transfer to the purchaser of an actual seizin, no matter how tortious, provided
defeasible estate, but
it
is
be a seizin under color of
title.
This doctrine seems to have been

1
In
this
country there are
many
which the covenants for

title, or some of them, are, by statute, implied from the words of grant
States
in
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
provisions are
utory
in
force,
stat-
the
Cooke
Levinz, 46
Gray
v.
Briscoe,
in the report of
Briscoe has been
interporeport should obviously

the Court, the covenant is
The
"
By
And
broken.
the jury
damages," &c., instead

enant is not broken."
3
in the
student will observe
word " not "
v.
lated.
read,
Fowns,
The
142.
that the
Gray
v.
Keble, 95
S. C. 1
Noy,
announced
first
The
passer,
of,
possession of a
avowed
shall
give
" the cov-
mere
tres-
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
lot, in actual possession, though
not unfrequently the only

covenant which the conveyance con-
one
but throughout New England,

and in several of the other States,
the covenant for seizin forms one of
the
have adopted the doctrine rei'onvd

to in the text) that the covenant was
what arc
broken,
latter
tains
is
.nants."
trniml
"tin:
usual
COVC-
title, it was held by

Supreme Court of Maine (who
without claiming
THE COVENANT FOR

case
of Marston
v.
21
SEIZIN.
Hobbs, decided
Massachusetts in
in
"The
defendant, to maintain the

1817, where it was
issues on his part, was obliged to prove his seizin when
But it was not necessary to show
the deed was executed.
said
a seizin under an indefeasible
title.
seizin in fact
was
sufficient, whether he gained it by his own disseizin, or

If at the time he
whether he was in under a disseizor.
executed the deed he had the exclusive possession of the

a title adpremises, claiming the same in fee simple by
was seized in fee and had a right

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,
verse to the owner, he
to convey.
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
1
2
under a covenant apparently similarly worded, by deciding 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 transmitted to the plaintiff his grantee, 8 and the construction thus
given has been recognized and adopted not only in Massa-
Maine, and
chusetts, but in
1
Mass. 439.
There appears
gnment on this
to
Parsons,
Ch. J.
have been no ar-
point,
which was de-
cided almost incidentally.

2 Bearce v.
Jackson, 4 Mass. 408.
3 " As to the other
exception,"
said Parsons, Ch. J., " it is very clear
in
a qualified sense in Ohio. 4

4
Chapel v. Bull, 17 Mass. 219;

v. Maxwell, 5
Pick. (Mass.)
Wait
320
Cornell
(Mass.)
Jackson, 3 Gushing,
v.
Young, 11
New Hamp.
491, (but see the later

case of Parker v. Brown, 15 New
Hamp.
186, supra)',
that the defendant's intestate being
Mitchell, 3
in possession, claiming a fee simple in

the land, was able to convey. So the
ard,
covenant of seizin was not broken."
v.
509; Breck
Kirkendall
v.
McLean, 145 (dictum by

McLean, J.) Cushman v. Blanch;
Griffin
Greenleaf, (Me.)
v.
268, 269
Fairbrot.her, 1 Fairf. 95
THE COVENANT FOR
2-2
Where, however, the covenant

Wheeler
v.
Hatch, 3 Id. 388
Booth-
Hathaway, 20 Maine, 255

Baxter v. Bradbury, Id. 260 Backv.
by
Administrators
us'
"The
211.
v.
3 Ohio,
McCoy,
covenants so usual in
our deeds," said the Court in Raymond v. Raymond, 10 Gushing,

(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.
is
SEIZIN.
expressed by the words,
ual adverse possession of the lands of

another, is the commencement of a
which, by lapse of time, may

ripen into a perfect title in the digseizor or possessor and during the
right,
time that the grantee of such disseizor 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

the grantor was seized in deed at
the time of the conveyance, how-
These covenants do not express or

imply a warranty of any absolute
if
they relate to the actual seizin

of the grantor and that he has such
possession of the premises."
ever that seizin
title
The
case in Ohio, of Backus'
ministrators
v.
McCoy, though
Ad-
differ-
may have been
ac-
quired. If the grantor, at the time

of executing this conveyance, was in
possession of the land, either as disseizor, or under color of title, it can-
ing in some respects from these cases,

yet states with clearness the doctrines
on which they proceed. After re-
not be said that he was not seized
ferring to the decision in Marston v.

Hobbs, Mr. Justice Sherman, in de-
in
livering the opinion of the Court,

held the following language " This
decision appears to us to be founded
60.
on sound and correct principles.
If
of an estate in the premises."
These
principles were subsequently affirmed
Foote
Burnet, 10
v.
and Devore
v.
Ohio, 327,
Sunderland, 17 Id.
The parts in this quotation marked

within brackets draw a distinction
which
is
not recognized by the cases
Marston
the grantor is in the exclusive possession of the land at the time of the
referred to in the text.
conveyance, claiming a fee adverse
an actual seizin
the covenant is not broken at all
that there has been and can be no
breach, and that the covenant will
havebeen fully answered even though
the purchaser should afterwards be
But the case of Backus v.
evicted.
McCoy decides that where there is
to the
his
owner, although he was in by

disseizin, his covenant of
own
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

cient to protect
in law, suffi-
him from
liability,
covenant [as long as those

claiming under him may continue so
seized]. Actual disseizin, or the act-
under
his
Hobbs and the

decide that
if
cases which follow
there
v.
it
is
an actual seizin, the covenant is not

broken at that time; it remains unbroken so long as the grant re, or
those Claiming under him, continue
THE COVENANT FOR

" seized of
an indefeasible
SEIZIN.
same
the
receives
it
estate,"
construction everywhere.
There is one point of view from which the construction
thus given to this covenant might readily appear to be corSince possession enduring for a sufficient length of
rect.
time, will, under the limitation acts, ripen into a good title.
seized,
and the breach
is
postponed
until their seizin be disturbed, either
or
actually
This
constructively.
course of reasoning is intended to

give to the heir, the devisee, or the
assignee of the covenantee, a right
of action in his
own name where
the
actual seizin has been transferred to
a result to which
him
the cases
4 Id. 53; Abbott
252; Collier
472.
"The
some
of
v.
Allen, 14 Johns.
v.
Gamble, 10 Missouri,
doctrine established in
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
the instant
naked covenant of seizin without any

words that imply any other right but
mere possession."
made, becoming thereby a right

of action and incapable of transmisSee
sion by descent or assignment.
Professor Dane, in his Abridgment, draws the distinction somewhat further than the authorities
above cited refuse their concurrence,

as they hold that the covenant for
seizin
is
broken,
if at all,
it is
"
Chapter VIII.
The
support.
class of cases thus referred to
must be distinguished from that class

to which belong Beddoes' Executors
v.
Wadsworth, 21 Wend. 120
ler
Slater
etc.
fact
Fow-
Poling, 2 Barb. S. C. R. 800
v.
v. Rawson, 6 Metcalf, 439,

which decide that a seizin in
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 nechowever, that such a

seizin will support a covenant for
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
nant he
and
'
but
if
he cove-
lawfully seized in fee,'

the issue be thereon, it is essenis
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
tial,
was lawfully seized."
Vol.
4, p.
339.
seizin.
however, do not draw the

distinction between "seized" and
"
lawfully seized." In most of those
1 This distinction
arising from the
form of the covenant has been no-
cited in the text, the covenant was

that the grantor was lawfully seized.
essarily follow,
ticed in Prescott
631; Smith
Raymond
v.
v.
(Mass.) 134;
2
v.
Trueman, 4 Mass.
Strong, 14 Pick. 132;
Raymond, 10 Gushing,
Garfield
Vermont, 328; Pierce
v.
v.
Williams,
Johnson,
The
cases,
The two
expressions are treated as
synonymous. But the distinction is

taken between these expressions, and
"
indefeasibly seized."
THE COVENANT FOR
there would
seem reason
SEIZIN.
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
old signification, and not, as has been

1
case, as synonymous with title.
more
its
But some of
same cases which decide
the
sion under color of
title is sufficient
to
in
recently the
that a posses-
support a covenant
for seizin, as expressed above, take no distinction between

such a covenant, and one that the grantor has good right to
2
convey.
Independently of the statutes of champerty, the
covenant has no connection whatever with the posses-
latter
refers, as its language indicates, merely to the

This
distinction, however, seems often to have been
right.
4
overlooked.
Thus, in an early case in Massachusetts, it
sion
it
was held
that one who, claiming to be seized, had covenanted that he had " full power, good right, and lawful author-
was a competent witness for his grantee, in an

him under the paramount title, " as there was
no covenant that the grantee should have a good title." So
5
" the covenant for seizin
in a subsequent case, it was said
ity to sell,"
action against
not broken, for
is
Thus
it
was admitted
Wheeler v. Hatch, 3
389, Thomas v. Perry, Peters' Cir. C. R. 49, and Wilson v. Forbes, 2 Devereux, 35, it was
held that the covenant for seizin was
i
Fairfield,
in
(Me )
broken by an adverse possession unIn the first of

der color of title.
these cases there were two lots, as to
one of which the grantor was in posthough without claiming title,
and as to the other, there was an ad-
session,
Marshall, 436,
it
it was notorious
conveyance that there
because
was an adverse
a
possession,
The
connection of this subject

with the champerty acts is noticed
infra.
3
4
631.
lett v. Gill, 7 J. J.
seizin,
at the time of
was broken
in Trip-
grantor was
could not be construed as a covenant

for
441.
So
the
was held that a covenant that the

grantor had good right to convey
verse possession under color of title,

and it was held that the covenant
as to both.
that
See in/ra, Chapter III.

v.
Henley, 4 Mass.
Twambley
Parsons, Ch. J.
5 Prcscott
v.
Trueman, 4 Mass,
Parsons, Ch. J.
THE COVENANT FOR

seized
neither
is
SEIZIN.
the covenant of a right to convey broken,
So in a more
seized has a right to convey."
2
of
those
were
the
covenants
where
recent case,
good right to
that " the
Court
it was said
and of
by the
man
for a
warranty,
covenants of seizin and of right to convey, are, to all practithe same fact, viz the
cal purposes, synonymous covenants
seizin in fact of the grantor claiming the right to the prem-
convey
ises will
authorize both covenants, and the want of
it
is
has been said, " the
And very lately it

covenant of a right to convey is synonymous with the coveThe actual seizin* of the grantor will supnant of seizin.
a breach of both."
of his having a
port both of these covenants, irrespective
3
a case in New
in
where
title."
indefeasible
Again,
good
4
Hampshire the defendant had covenanted that he was the
lawful owner of the land and was seized and possessed
thereof in his own right in fee simple and had full power
l
in
The same expression was used

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
"
comin its old sense.
with
title,
" is
plete legal title," said the Court,
the yum et seisince conjunct io, the title
and
This is the
possession united.
technical and legal import of the
'
terms
'
Seizin
whole
seized
'
of
the
means, ex
legal, title.
vi
legal
title.'
termini, the
covenant of
the covenantor
if
is broken
have not the possession, the right of
possession, and the right, or legal
seizin
would, therefore, be difficult to imagine a case in which a

title.
It
party could be seized and yet not

have the right to sell and convey the
Seizin is a nomen genelegal title.
ralissimum which includes the right
to sell
minus."
Omne majus
continet in se
Although it may perhaps be doubted whether the signification thus

given to the word seizin is not
rather larger than the old law gave
it,
(else the words "jus" and
" seisina " would not have been
dis-
to
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.
26
See
infra, p.
et seq.
Slater
v.
Rawson,
Metcalf,
450, 456.
3
Raymond
v.
Raymond, 10 Gush-
ing, (Mass.) 134.

*
v. Twitchell, 1 N.
Hamp.
where it was said " it is deeply
to be regretted that it has been so
settled," and in Parker v. Brown, 15
Id. 176, this case has been overruled, and the doctrine rejected. See
Willard
1 78,
infra, p. 28.
THE COVENANT FOR

and lawful authority
to grant
" each of these

observed, that
SEIZIN.
and convey the same, it was

amounts only to a stipulation
that the grantor has such a seizin that the land will pass
his deed."
But
the
broken
if
doctrine that
the
covenant for seizin
is
by
not
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
In an early case in Vermont, 2 the Court said:
others.
" The
present covenant declared upon is that the grantors
were well seized of the same land in fee simple and had in
themselves good right to bargain and sell the same in the

manner in said deed mentioned. These expressions, and
those of similar import, have always been considered in this
State, as amounting to a covenant of title.
They have
been inserted, that they should be so considered.

It is
that
this
means
more
than
that
nothing
argued, however,
the grantors were in possession, claiming to hold in fee
This alteration might as well be incorporated,
simple.
by construction, into all the covenants, that decidedly reThat they were well
late to title, in the whole deed.
seized in fee simple,
possession, claiming
means,
to
hold
that
in
they were actually in
fee
simple.
That they
had good right to sell and convey, means, that they claim
That the premises are free from all
to have such right.
incumbrances, means, that they claim that they are thus
This is not the most natural and obvious meaning
free.
of the usual expressions in deeds of warranty.
They say
They speak of realities. Fee
nothing about claiming.
Well seized
simple denotes a permanent estate.
denotes
a
seizin of a permanent estate.
simple
in
fee
Such
would be the most natural construction, without the

But when we recollect
aid
of concurrent circumstances.
that
an
Catlin v. Hurlburt, 3 Vermont,

407, per Hutchiusou, Ch. J.
See
tn/ra, p. 29 et seq., for
explanation of these cases.
THE COVENANT FOR
SEIZIN.
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
this
them a
different construction."
The Massachusetts decisions have been also commented

2
on with severity, and their reason denied in Connecticut
;
1 This decision has not been deRichardparted from in Vermont

Mills v.
son r. Dorr, 5 Vermont, 21
;
from the unequivocal words of the

covenantor, and the unquestionable
Sturdevant, 6 Conn.
That was
object of the covenant.
security to the purchaser, to the extent of the title purporting to have
Although my judgment," said

Hosmer, Ch. J., who delivered the
been conveyed. The determinations

on which I am expressing an opin-
"
might safely
opinion of the Court,
be rested on the inapplicability of
ion, are
Catlin, 22 Id. 106.

2
Lockwood
385.
the
y.
"
decisions
Hobbs,
&c.,)
cited,
am
(Mar'ston
constrained
v.
to
that notwithstanding the

veneration I entertain for the highly
observe,
accomplished jurist who expressed

the above opinions, I cannot yield
That which
shows covenants of seizin and of
them my
to
assent.
is
right to convey, to be broken,
If the covenants are
their falsity.
true, they
remain inviolate
if
they
are not true, they are broken. On

the same principle, if they are entirely false, they are wholly violat-
opposed to the plain intendthe most unambiguous ex-
ment of
pressions ; to the object of the parcovenants in

ties in making the
question
and
fact of
seizin intends
than
possession,
without
no
seizin in law.
the possession
is
possession of the premises, and an

ideal or imaginary right, founded
not
on a supposed
marks, as
colorable, yet this is not a legal seizin

in fee; and nothing short of this
will
support
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
the
where
there
is
In the nature of
of an estate con-
veyed, with such a legal interest as

the fee simple denotes." The cove-
sion
was merely
if
things, there is but one species of

seizin in fee, and that necessarily
nantor should have had the actual
that
by
anything more
an expression
is
meaning,
an
title
utility
an estate in fee simple,
word
ed and if partially untrue, they are

broken, but in part only. All this
is self-evident.
Although the cove;
their
to
reducing them to little more than

a nugatory agreement. A seizin in
nant, however, in this case was for
an expresestate,
which admits of but one con-
indefeasible
struction.
strictly
The
call
is
case, therefore, did

for
the
above re-
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.
THE COVENANT FOR

and
in
New
a recent case in
SEIZIN.
1
the
Hampshire,
Supreme
Court, after an ahle argument in "opposition to the docParker
"
186.
v.
Brown, 15 N. Hamp.
We have given the question,"
said Parker, Ch. J., who delivered

" all the consideration
the
versant with the law ordinarily understand this covenant as an assur-
ance of a
title,
and we are of opinion
opinion,
that the intrinsic importance of the
principle, and the inexpediency of
that they have the right so to under-
holding a different doctrine from that

which has been once promulgated,
even incidentally, except in a clear
seized of the fee, at the election of
case,
demands of
us.
But
that con-
stand
it.
seized
import of the covenant of seizin

extends beyond a mere engagement
peaceable
that the party is seized of the land

by a seizin which would be good
only against another having

tence of title.
no pre-
"After contracting that they are

the lawful owners of the premises,
the grantors covenant that they are
own
right in
This engagement is cer-
lawfully seized in their
party
party
who remains
the contrary, he was, until the expiration of the period, a wrongdoer.

" That the deed
may transmit a
fee simple, does
claimed wrongand in disseizin of the true
fully,
owner.
This
be a good seizin
but the true owner, but
may
against all
is not a seizin
right in fee.
such
is
in
the parties'
The grantee who
covenant
for
his
own
tikes
security
in the adverse
the lapse of the period prescribed

he had a lawful seizin in fee ; on
unlawfully seized, without right, in

own wrong, or of no fee sim-
except such as
dis-
ing that time. But this is for a quieting of possession and barring stale
claims. It does not show that before
session
ple,
has
treated as
possession of lands for

twenty years as owner, may thereby
have evidence of a seizin in fee dur-
fee simple.
tainly not satisfied in any just sense,
by evidence that the grantors are
their
who
may be
his disseizee.
He cannot be permitted to qualify his own wrong; but
this is for the sake of the remedy.
sideration has satisfied us, that the

fair
another
seizin, in virtue of
under
which and a pos-
the grantee may

obtain evidence of an indefeasible
it,
not show that the
terms of the covenant are
Nor does
the
the
transmitted
seizin
be interrupted,
fulfilled.
consideration
that
may never
suffice to give a con-
struction to the covenant, or to
show
that the grantee ought not to maintain an action until he is actually
The engagement
of
has a right to understand, that his
dispossessed.
grantor transmits to him some seizin,

other than one which will make him
grantor upon the covenant is

not that he will be answerable if the
liable to the rightful action of a third
grantee is ousted. That is the effect

of the covenant of warranty.
" No
wrong is done by the mainte-
person, the moment he enters under

And we think we are rehis deed.
quired to give to the terms of the

covenant the fair signification to be
drawn from the language

it
is
expressed.
Parties
in
which
not con-
the
nance of the action for if the grants

recovers damages from the breach of
the covenant of seizin, on the ground
;
that the grantor
had no
title
what-
THE COVENANT FOR

of actual seizin, Repudiated
trine
previous decisions
the
it
altogether, overruling
1
which had, almost

of authority in Massachu-
that
in
SEIZIN.
State,
the train
involuntarily, followed
" and these latter
setts ;
decisions," said Chancellor
in his
Commentaries,
common
rule of the
"
contain,
2
law,"
is
it
Kent
apprehended, the true
and are certainly supported by
the weight of authority.

In this apparent conflict of opinion, it is natural to refer
reasons which have led to the adoption of
to the
probable
one side and denied
the doctrine thus advocated on the
on the other.
Its
has been said
It
origin seems enveloped in some doubt.

" the rule seems in some measure
that
have grown out of the hardship, real or apparent, of

permitting a grantee to recover back the considerationto
money and
he or his assignee
interest, while
a possession that by lapse of time
may
is
enjoying
ripen into a per-
fect title."
But
the doctrine of actual seizin has
if
had
from
its rise
the reason here suggested, Courts have been forced to
For
further than such exigencies required.
if
go
the covenant
be fully answered by the transfer of an actual, though a

ever, the operation of it must be to
estop the grantee from setting up
the deed afterwards, as a convey-
will furnish as
ance of the land, against the grantor.
The defendants may re-enter if they

think proper, and will hold under
We
see not
why
the grantor
may
not again enter, if he chooses, as

recovery in
against the grantee.
with
or
trover
satisfaction,
trespass,
vests
the
property
in
the
party
against whom the damages are assessed.
are not aware of any-
We
thing in the
nature
or
of the feudal
in
the
which regulate the
title
investiture,
principles
to land
at
the present time, that should require

a different rule in relation to real
estate.
The record
of the recovery
3*
that
4 N.
which
good an estoppel as
from a disclaimer
arises
Hamp.
182, Hamilton
u.
Elliott.
their former possession, against all
persons
right."
who cannot show a better

As to these latter expres-
sions, see infra.

l
Willard v. Twitchell, 1 N.
178, supra, p. 25.
2 4
Commentaries, 472.
note
4
Hamp.
See the cases cited infra,
p. 48,
3.
Mr. Wilcox's note to Foote
Burnet, 10 Ohio, 327.
v.
30
THE COVENANT FOR
SEIZIN.
tortious seizin, the subsequent disturbance of the

purchaser
can give him no rights under that covenant, as its purpose
was accomplished 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. 1

But it will be presently seen, when
we
consider the question of the measure of

damages upon a breach of this covthat
a
is
not entitled as a matter of course to
enant,
grantee
recover back the consideration-money and still retain the
land for which
endeavor
is
2
thus deemed an equivalent.
Every
while securing to the purchaser the full
is
it
made
protect the vendor from losing

price, and it is sought, so far as is
benefit of his covenant, to
both the land and
its
to give to the
recovery of the considerationan action on the covenant for seizin, the effect of
practicable,
money
in
revesting in the covenantor the

has conveyed.
such as
title,
It is believed, therefore, that
it is,
which he
a more satisfactory reason
has already been said that the doctrine might

well be accounted for on the ground of seizin being used
It
exists.
3
synonymous with possession, were it not that the same
construction has, in some cases, been applied to the covenant
for good right to convey, which would appear to have no
as
connection with the possession, but to be confined exclusivethe reason is, therefore, inapplicable to the
ly to the right j
latter covenant,
l
Cushman
In
v.
Blanchard,
of Cornell
p.
Jackson, 3
Gushing,
Greenleaf, (Me.) 266, it was said,

" If the
grantor was
(Mellen, Ch. J.)
u
p;ir(Mass.) 509, the Court said,
amount title does not affect a cove-
seized in fact, though not of an indeand the grantee en-
nant for seizin."
tn> mid.
in the
feasible estate,
deed, then the covenant of seizin is not broken; but the
grantee
better
to
r liis
evicted by elder and

and then the covenant
may be
title,
broken, and
So in the recent case
warrant and defend
no other"
is
Thus
if
the purchaser has bought
paramount
are limited to the
by him.
The
title, his
damages
amount thus
j>;iid
cases upon this sub-
ject will be found in a subsequent
part of this Chapter.

3
See supra,
p. 23, 24.
THE COVENANT FOR
31
SEIZIN.
The
foundation of the doctrine must therefore be sought

from another quarter, and it is believed to have sprung from
the doctrine of adverse possession, as connected with the
acts.
champerty
sketch of these enactments

It is familiar,
priate.
was the
delivery of possession
transfer.
of uses,
it
may
not be here inappro-
and has been already
essential part of
Such
was
suggestion of
the case of
the
Ilutchinson, Ch.
Catlin
" It is
in
J.,
v. Hurlburt, 3 Vermont, 407.

" the coveprobable," said he,
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
ute, if there
sion."
And
Vermont,
a feudal
But very soon after the enactment of the statute

was ingeniously made the medium of the transfer
of land without the delivery of possession.

l
stated, that the
by virtue of our
stat-
be an adverse possesin Pierce v. Johnson, 4
253,
Judge observed,
the same learned

" The naked cove-
nant of seizin was probably introduced for the purpose of securing an

easy entrance upon the land by the
grantee, or to guard against the effect of an adverse possession, which
With
the view to
So again, the champerty acts are

most probably referred to by the expression in Phelps u. Sawyer, 1 Aik15 7, "Had Sawyer given
( Verm.)
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 covenants, the charge would have been
correct, for Sawyer could have no
in
right to sell while any person was
ens,
his
him."
possession adverse to
And
in
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
Clarke
v.
should
possession, a larger operation
would render the deed void as an

instrument of conveyance, and throw
be given to the covenant of warranty

here than elsewhere, because the
vendee, where he did not obtain ac-
the grantee upon his covenants as a
tual possession,
So
would otherwise be
Gray-
without remedy. This is a good reason why a purchaser should secure
son, without being seized in fact, or

in law, may, according to the law
himself by a covenant of seizin, or

that the vendor has a lawful right to
have
convey, but it is no reason why the

law should interfere to cure the ef-
remedy."
in Triplett v. Gill, 7 J.
J. Marshall, 436,
it
was
said,
"
in force at the date of the deed,
had lawful
convey a
and authority to
title.
The champer-
right
legal
ty act of 1824 did not take effect

until July of that year."
fects of negligence at the expense of

confounding settled distinctions."
32
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
Soon
with this end the statute of enrolments 1 was passed.

" Bill of
after came the
or
of
Titles,"
Buying
Bracery
since
" Pretended
more commonly known as the

Title Act,"
which seems further to mark the design of the legislature
an ingredient
the
sale
or
of any
transfer
title, by prohibiting
bargain,
premises of which the party had not been in possession or
to preserve the transfer of the possession as
of
received the rents or profits for a year previously, under

penalty (imposed both upon the seller and the pur-
the
chaser, if he purchased knowingly,) of the forfeiture of the

" This
value of the premises.
statute," said Ch. J. Mon3 "
has not altered the common law, for the common
tague,
law before the statute was, that he who was out of posses-
ought not to bargain, grant or let his title and if he

had done so, it would have been void ; then the statute was
sion,
made
in affirmation of the
tion of
it
and
all
common
law, and not in altera-
that the statute has done
is, it
has added
a greater penalty to that which was void by the
law before."
1
2
3
27 Hen. VIII.
32 Hen. VIII.
Partridge
v.
The common law forbids every
law.
c. 16.
c. 9.
Strange, Plowden,
88.
4
transfer of a disputed title or right,

whether relating to real or personal
estate,
" It
is
a mistake to suppose," said

Hoyt v. Thompson, 3 Sand" that
ford's Sup. C. Rep. (N. Y.) 480,
the law of champerty is derived from
Duer,
Court
J.,
in
the provisions of the statute, which

we have re-enacted, that forbids the
conveyance or sale of lands by a party out of possession.
The
and
erty;
1
manifest that the reasons of
Hawkins, P. C.
2 Ball
v.
v.
b. 1, ch. 86,
2 Story's Eq. Jur.
Black. Com. 135
statutory
is
by a person out of possession
it is
public policy upon which the interdiction is founded, apply with equal
force to every description of prop-
not only a partial affirmance of a general rule of the common

prohibition
common
Burke
1048; 4
v.
Green,
& Beatty, 517; Cholmondeley
Clinton, 4 Bligh, N. S. 4 Baker

Whiting, 3 Sumner, 475." The
;
student will find the doctrine here
THE COVENANT FOR
83
SEIZIN.
This passage, to be properly understood, must be taken

as having reference to the mode of conveyancing introduced
The common law had
statute of uses.
by the
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"
l
ance and stirring up of suits
and the same principle was
applied, as part of the common law, to the transfer, through
the medium of the statute of uses, of real estate of which
;
2
But
possession was not transferred with the right.
before that statute there could scarcely be such a thing as
a transfer of land held at that time in adverse possession.
the
" Where land was

conveyed by feoffment, the only mode
known to the earlier law, the difficulty with regard to possession could not arise
for in order that the
livery of seizin
;
should be effectual,
was necessary
in general for the feoffor

have actual possession at the time of livery made.
For
this purpose, a claim
by him, and his presence upon the land,
it
to
with present right to possess
if
was
it,
were not
sufficient
but
party previously possessed, and

him, should either be expelled from
every part of the premises, or that he should virtually surrender possession by giving his consent to the feoffment." 3
it
all
requisite
that the
persons holding for
referred to very satisfactorily examined in the notes to Row u. Dawson,
Kingston's case, 2 Smith's Leading

In the last American edition
Cases.
White and Tudor's Eq. Cas. 332.
9 Viet,
(the 4th) of this book, which has been

published since the former editions
of the present work, the annotator
has thus altered the expression of the
a contingent, executory, and future interest, and a possibility coupled with an interest in
passage: "The distinction between

the mere principle that a thing not
possessed cannot be granted, and the
land, also a right of entry, whether

immediate or future, vested or con-
offence of maintenance, is the more

evident fiom the course of equity,
be disposed of by deed,
do not defeat or enlarge
which looks upon actual maintenance in the same light as the com-
Co.
Litt.
214 a; Lampet's case,
10 Coke, 48.
2
By the recent act of 8
c.
106,
tinge nt,
&
6,
may
pro\ ided
it
an estate tail.
3 Mr. Hare's note
mon
to
Duchess of
law, (Stephen v. Bagwell, 15

Ves. 139,) and yet gives effect to the
THE COVENANT FOR
When, however,
mode
the
SEIZIN.
of assurance
was
and
altered,
the land could be transferred without a notorious change of

the application of the remarks of Ch. J. Mon-
possession,
Whatever may have been the intague becomes obvious.

" Pretended Title
tention of the legislature in passing the
Act," it is certain that it was judicially looked upon as
it stood at that time, and that
scarcely altering the law as
the offence t)f maintenance consisted not so much in taking
a conveyance of the whole or part of a thing not vested in

the party by
whom
was made, as
it
in taking
in consider-
it
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
consequently
appears that the conveyance of estates not vested in interest, was void
at law, not as amounting to mainten-
Such a possession could not be acquired by an entry on land, held

adversely by another, unless he and
all persons holding under him were
either expelled from every part of
ance, for had that been the case, no

relief could have been afforded in
the premises, or gave their consent

Co.
Litt. sect. 781
to the feoffment
of a
equity, but under the operation
which
forbade
rule
of
policy,
general
Litt.
the transfer of any right not sustain-
taining actual possession, a previous

want of possession formed no obsta-
transfer of future
tates
and
and contingent
es-
It
interests.
ed and accompanied by possession, in

order to avoid
maintenance
con's Abr.
tit.
giving occasion to
Co. Litt. 314 ; Ba-
As
Grant, D.
sion,
it
did not apply
when
posses-
the
cumstances were such as to show that

maintenance actually existed. And
this
seems
distinction
feoffment,
sufficient to explain the
between the
and of a grant
effect of a
;
for a feoff-
ment was substantially livery of seizin, and livery could not be made unless the feoffor
was
in actual posses-
sion of the land at the time of

it
Knox
v.
Jenks,
making
Mass. 488.
b.
to
cle
its
Note
operation."
Lead. Gas. 623, (4th
Am.
Smith's
ed.)
Duchess of Kingston's
to
case, supra.
mode
of assurance implied and transferred

an actual possession, unless the cir-
As, therefore, a feoffcould not be made without ob-
ment
this rule
was founded on the want of
48
Stanley
Doe
v.
Jones,
Bing. 369
Evans, 1 Com. Bench, 717;

Hitchens v. Lander, Cooper's Ch.
Cas. 34
Sharp v. Carter, 3 P. Wms.
v.
375
&
v.
Prosser
v.
Edmonds,
Younge
;
son
v.
Lee, 4 Simons, 364
Daniel, 4 Hare, 420

6
Col. (Excheq.) 481 ; Harrington

Long, 2 Myl. & Keen, 590 An-
Hare, 366
Cook
Hunter v.
Wilson
v.
v.
Short,
Field, 15 Q.
Bench, 460; Cockell v. Taylor, 15

Beavan, 103 S. C. 15 Eng. Law &
;
Eq.
II.
101.
THE COVENANT FOR

transfer is not
made
for the
35
SEIZIN.
purpose of assisting- or mainof an adverse possession will
fact
taining a suit, the mere
1
not invalidate the conveyance.
In many parts of this country, however, the
In some of the States, the
receives a wider application.

statute of
some
in
32 Hen. VIII.
State,
1
Doe
has been modified,
it
v.
Martyn, 8 Barn.
&
Cress.
See, passim, 4 Kent's
Com. 446
18 Illinois, 449; Breckenridge

Moore, 3 B. Monroe, (Ken.) 629
Little v. Bishop, 9 Id. 247; Way
v.
;
v.
Arnold, 18 Georgia, 181 Chairs

Hobson, 10 Humph. (Tenn.) 355
;
Bledsoe
v.
Rogers, 3 Sneed, (Tenn.)
466.
r
hiting, 5 Pick. 355

Brinley v.
Dexter v. Nelson, 6 Alabama, 69
Fite
v.
Pace, 6
2
1
Doe,
Id.
99
Blackf. 127; Martin
Bowman
McLean, 380
481
Carter, (Ind.)
Hickson, Id. 581
v.
Nutting,
Wellman
v.
Watham,
v.
Michael
v.
Wood v. McGuire,
21 Georgia, 576.
* Such as
Pennsylvania (Stoever
v. Witman, 6 Binney, 420
Cresson
;
Miller, 2 Watts, 272) Maine (the

law having been recently altered,
Buck v. Babcock, 36 Me. 491)
New Hampshire (Maddock v. Wilmarth, 5 N. Hamp. 181) Vermont
v.
(Danforth
v.
2 Williams,
Streeter,
497) Delaware (Bayard v. McLean,

3 Harr. 139, where the subject was
;
elaborately considered)
New
Jersey
Peters' C. C.
Perry,
Virginia (the Code having

recently, in imitation of the statute of
8
&
9 Viet.
c.
106, supra, p.
106,
"
provided that any interest in or

claim to real estate may be disposed
33,
"
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
;
v.
(Lytle
The
Iowa (Wright
472)
v.
(Thomas
Rep. 54)
Sherry v. Frecking, 4 Duer, (N. Y.)

454 Sedgwick v. Stanton, 4 Kernan,
Sherwood v. Waller,
(N. Y.) 289
20 Connect. 262 Newkirk v. Cone,
v.
literally,
in others the prohibition of
regarded as part of the common law of the

4
In
while in some it has no existence whatever.
497.
2
is
champerty
3
9, has been re-enacted
c.
doctrine
and,
State, 17 Ark. 608) ;

v. Meek, 3 G. Greene,
it is
believed,
some other
States.
The
utes of
following sketch of the statin an able
champerty occurs
opinion delivered by Scott, J., in

the recent case of Lytle et al. v. The
" It is not
1 7 Ark. 665.
to be
State,
doubted but that the several English
statutes of champerty were in aid
of, and to supply the defects of the
more ancient general law of main-
tenance
a law which peremptorily
forbids the transfer to another of a

right to seek redress in a court of
These statutes were designed to render this law of main-
justice.
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-
36
THE COVENANT FOR
those
however, in which, whether by statute or
States,
common
law, the offence of champerty
enough show. The law of mainis to be traced no further
ly
tenance
back in the history of the common

law than to about the close of the
llth century,
when
the
Norman
con-
queror, having subjugated the country

and despoiled the natives of their
and
property,
kingdom
fees
had
the
dividing
whole
into sixty thousand Knights'

distributed them among his
*
followers.
The
first
statute against
in the year
champerty was passed

1275, Stat. Westm.
1,
ch. 25, 3
the King should maintain

it
Hereby
champerty
(that
to
Upon which Lord Coke
part.'
*
Edw.
provided that no minister of
It
I.
is,
appeareth that
unless
the
it
state,'
no
&c.,
Bayard v. McLane, 3 Harr. Rep.

The terms of that statute,
210.
No minmore fully set out, were
'
maintain pleas,
King
suits or matters depending in the
shall
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.'

Digest, Maintenance, A.
ing
the
to
Coke, 2
pending
'
Com.
Accord-
commentary of Lord
Inst. 208,
(by the words de-
in the King's courts,)
it
is
declared that, regularly, champerty

within
is, pendente placito, and that
the words of the statute " or anything," are included leases for years,
'
any other person,
all,
neither for champerty or other2 Inst.

depending the plea.'
84, cited in Stanley
the Chancellor, Treasurer, Justices,
Jones,
Bing.
mentioned therein
were afterwards, by Stat. 28 Edw.
to certain officials
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
hereby that one
not to be understood
may
not have coun-
of pleaders, or of learned men for

his fee, or of his relations or neighsel
See 3 Younge & Jervis, 129,

copy of this act.
" Next in order of time was the
statute, de definitio conspirat. 33 Edw.
bours/
for a full
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,
of the gains.'
tenance.
"By
v.
that
Rep. 377. These prohibitions
in the one ant, confined to the King's
ministers, and in the other, extended
Rep. 129.
I.,
than the
fide, depending the suit, he is not in

danger of champerty, but those persons here prohibited cannot purchase
and sue at
Westm. ch. 49, 13 Edw.
e.,
(i.
Chancellor, Treasurer, and other persons named in the act,) purchase bona
and other goods and chattels, debts

and duties.' See 3 Younge & Jervis,
2 Stat.
to
5 Com. Digest, p. 18.

Upon which,
Lord Coke remarks, in his reading
True it is, that if
upon this act
at
is
named, were forbidden
purchase, or take by gift, lands or

other matter in suit, pendente lite.
wise,
the agreement to divide the

be for maintenance.' See
ister of the
officials
have
:
forbidden, the
is
the King's Council, Clerks in Chancery and of the Exchequer, and other
says
estate,)
SEIZIN.
or by others,
their proper costs, to have

part of the land in variance, or part
Com.
Digest,
Main-
"Besides these, there were other
THE COVENANT FOR
SEIZIN.
of such prohibition seems to be, that a conveyance by

a party out of possession, and with an adverse possession
effect
against him, is void as against the party in possession

in other words, as respects the latter, the grantor has
The mere fact,

passed no right whatever to his grantee.
of
the
transfer
of
real
estate
of
which there is
therefore,
an adverse possession,
is
deemed of
itself
an offence within
the spirit of the champerty acts.

statutes passed in aid of the
law of
persons to
maintenance, forbidding
bind themselves by oaths, covenants,
or otherwise, to move or maintain
'
by letter or
pleas for others, or
otherwise' to 'maintain quarrels in
the country to the let of the
law/
common
Ib. p. 17, 18.
vol. p. 320,)
the state of society,
out of which sprang these stringent

enactments, is referred to in connection with the statute of conspirators
cited, and it is stated by this
above
historian, that
'
Instead of their for-
mer
associations for robbery and violence, 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
lic
this
maddened
mind must not be
state of
pub-
legitimately
traced to an unsettled state of property, resulting from a greedy assump-
by the crown for forfeitures as escheats, and the regranting of those estates to favorites and
At any rate, such inferfollowers.
ences seem legitimate as connected
tion of estates
with the subsequent parliamentary
enactments in
aid,
It was in the year 1538 that

king had completed the suppression of the monasteries in
England,
Eighth.
this
and proceeded to escheat their estates,

and grant them to his courtiers and
and in the year 1540, he
parasites
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
;
"In Hume's History of England,

(2d
ring somewhat over two centuries

afterwards, in the reign of Henry the
and
for strength-
ening the law of maintenance, occur4
VIH.
ch. 9,) that
by
act of Parlia-
former statutes against

maintenance, champerty, &c., were
confirmed;' and by the same statute, 'that no person should unlawfully maintain or procure maintenment,
'all
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 by any means obtain

any
pretended right or title, &c., to any
manor, lands, &c., unless he who sells,
or
sell,
by whom he
have been in possession there-
&c., his ancestor, or they
claims,
or of the reversion, or remainder,

or take the rents or profits by the
of,
space of a year before the bargain,

on pain to forfeit the value of the
lands, &c., so bought
Com. Digest, p. 17."
and
sold.'
38
THE COVENANT FOR

would seem, therefore,
It
SEIZIN.
have been the intention of
to
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, therefore, an actual seizin were transferred to the purchaser, the
vendor had a right to convey, within the spirit of the champerty acts, and the covenants for seizin and of good right to
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.
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 purchaser'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
same
l
early case in Pennsylvania, and three of about the

3
date in
York, which arose under peculiar cir-
New
Williams v.Hogan,Meigs,(Tenn.)
ders, however, such a sale void for
v. Smith, 1 Binney, 110.

Belden v. Pitkins, 2 Caines, 149
Whittaker v. Cone, 2 Johnson's Cases,
all
58
189.
The
statute in this State ren-
purposes.
Mitchell
Wood worth v. Janes, Id. 417.
THE COVENANT FOR
many
89
be here referred to as illustrative of this
may
Some
cumstances,
question.
SEIZIN.
time after the settlement of Pennsylvania,

sprung from conflicting claims to lands in
difficulties
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
some blood-
Connecticut, and after years of contest and even

shed, Congress
and certain commissioners or
interfered,
judges, appointed by its authority, decided the right of government to be in Pennsylvania, leaving, however, the question of particular titles untouched.
Many of the old settlers
under the Connecticut
new
of
settlers
under
title
it
still
numbers
remained, and
intruded themselves, and after re-
peated efforts to remedy the mischief, the Legislature of

Pennsylvania, in 1795 5 passed an act called the Intrusion
1
section of which imposed a penalty upon

should intrude or settle within certain counties
" half share
named, under any
right or pretended title not
derived from the authority of this Commonwealth," and the
Law,
the
any one
first
who
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
bill filed
v.
Janes, decided in
New York
by the purchaser of a Connecticut
in
title
1800,
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
equity could not lend its

aid either to enforce or rescind such a contract, but would
knowledge of the state of the
title,
leave the parties to their remedies, if any, at law ; and in

the subsequent case of Whittaker v. Cone, 3 where the
plain1
Act of llth of
Smith's
and see the note

2 2
April, 1795
Laws of Pennsylvania, 209

in that volume.
Johnson's Cases, 417.
32
worth
Id.
58
decided after
Wood-
Janes, though reported in a

prior part of the volume.
v.
THE COVENANT FOR
SEIZIN.
sued at law upon promissory notes given for the purchase money of such a title, the Court refused to sanction a
tiff
similar derecovery, and the plaintiff was nonsuited.

was made in the same State, in Belden v. Pitkins, 1
cision
while in Pennsylvania, the case of Mitchell v. Smith, presenting facts almost identical with those in Whittaker v.
Cone, came before the Court about the same time, and
elaborate
1
argument was decided
2 Caines, 149.
1
Binney, 110.
The reason
plaintiff, the latter
for such a course of
ditio defendentis.'
'
immoral or
illegal as
between plain-
and defendant, sounds at all times

very ill in the mouth of the defendtiff
ant.
It is
not for his sake, however,

is ever allowed,
that the objection
it is founded on general principles of policy, which the defendant

has the advantage of, contrary to the
but
real justice, as between

plaintiff,
The
by accident,
if I
him and the
may
principle of public policy
so say.
is
ex dolo malo non oritur actio.
this
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 otherwise, the cause of action appears to
arise ex turpi cawsa, or the transgression of a positive law of this country,
then the Court says he has no right

to be assisted. It is upon that ground
covenants cannot be deemed
ity,
which the student
notes to Collins
to bring his action against the
collate-
will find in the
Blantern, 1 Smith's
Leading Cases, 169 Smith on Contracts, 151, &c. for the very object of a
v.
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 transaction forbidden
eral principle
" where
by the law.
is
The gen-
well settled
that
and
ut res
honesty requires
it,
magis valeal 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 parties are in pari delicto, or when a

statute has made the transaction ab-
645
was
the cases
ral to the transaction, so as to bring the

case within a familiar train of author-
So
the plaintiff and defendant were

to change sides, and the defendant
"
The ground taken by
champerty
if
would then have
cited in the text necessarily assumes

that under such circumstances, the
the Court goes not for the sake of

the defendant, but because they will
not lend their aid to such a plaintiff.
;
the advantage of it, for where both

are equally in fault, 'potior est con-
decision will be found in the often-
quoted words of Lord Mansfield, in

Holman v. Johnson, Cowper, 343.
" The
objection, that a contract is
after
in favor of the defendant.
solutely void, as is the case with the

acts in Kentucky, Breckv. Moore, 3 B. Monroe, 629,
Graves v. Leathers, 17 Id. 668,
enridge
;
the covenants are useless to the party

receiving them ; Lee v. Colehill, Cro.
THE COVENANT FOR
SEIZIN.
the conduct of the purchaser has not

himself within the spirit of the cham-
When, however,
been such as to bring

it
perty acts,
would seem
that
however inoperative the trans-
fer might be as against the party in possession, yet as

1
between the parties themselves it is valid, and will operate
2
not merely by way of estoppel to the grantor, but the cove3

nants in the deed can be made available to the grantee.
4
Thus, in Phelps v. Decker, decided in Massachusetts in
1813, the defendant, a resident of Pennsylvania, was sued

Massachusetts on the covenants for title contained in a
in
New York,
deed executed by him in
and purporting
to con-
who
resided in that State, land granted

Susquehanna Company under the Connecticut title.
" warranted
deed purported to convey the premises as
vey to the
plaintiff,
by
the
The
from
claims and demands whatsoever, so far as the Con-
all
Susquehanna Company's purchase extends and is

regularly made," and there were also unlimited covenants
necticut
Waters
Eliz. 527;
v.
The Dean and
Brownlow,
Chapter of Norwich,
158. So, too, where the deed is void
2
from uncertainty
Capenhurst
v.
Ca-
penhurst, 1 Raym. 27, from not being

signed, or the like Soprani v. Skuno,
;
Yelverton, 19; Frontin

Ld. Raym. 1418.
Br. Ab.
369
Litt.
tit.
Feoffment,
Upton
v.
v.
Small, 2
dleton
19; Co.
pi.
Barrett, Cro.
Beaumont, J. AberBoazman, 24 Ala. 193 Mid-
v.
v.
Arnolds, 13 Grattan, (Va.)
489.
3
Demont, 9 Johns. 55
Peru
Iron Co. 9 Wend.
Livingston
516 Van Hoesen v. Benham, 15 Id.
Jackson
v.
v.
165; Livingston v. Proseus, 2 Hill,

528; Wade v. Lindsay, 6 Metcalf,
407 Edwards v. Roys, 18 Vermont,
;
478; Den
v.
as a witness for the grantee, on the

release
of
the covenants
for
title.
decision to the contrary in Williams
Eliz. 445, per
nathy
3
Abernathy v. Boazman, supra ;
and such must necessarily have
been the ground of the decision in
Van Hoesen v. Benham, 15 Wend.
165, where the grantor was admitted
Geiger, 4 Halsted, (N.
J.) 235.
4*
Hogan,Meigs' (Tenn.) R. 189, was

by the Court in
Abercrombie v. Baldwin, 15 Ala.
v.
cited approvingly
371
but in the more recent cases of
Harvey v. Doe, 23 Ala.

Abernathy v. Boazman, 24
637, and
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

positive terms of the statute
in that State.
upon the
4
10 Mass. 267.
THE COVENANT FOR
SEIZIN.
for seizin, of right to convey, for quiet

enjoyment,
and of
The defendant pleaded that all the estate of the

warranty.
Susquehanna Company was regularly vested in him, and
by him transferred to the plaintiff. To this the latter demurred, 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 Pennsylvania,
and the
statute in
that State
was considered
to be
before the Court as if specially pleaded.

The case was
three
and
the
after
times,
Court,
argued
holding it under
decided
that
facts
other
than
were
stated must
advisement,
be proved before the
and conspired
plaintiff could
be said to have combined
to convey a pretended
title within the act.

1 "
" If he
ignorant of this statpurchased," said the Court,
ute and of the defect of the title conveyed to him, as he
must be presumed
to
statute
of
New
have been, the deed as to him and

deceived him, is good under the
who
against the defendant
and supposing the deed executed within the State

York, and that to be the only overt act provable to
any offence within the penalties of the statute,

And although the
even the defendant would not be liable.
substantiate
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
deed
may
be so far
illegal as to
reason to conclude that
As a
conveyance,
its
void as between these parties.

operation is local, and deter minable
it is
to be cononly where the land lies, which was pretended

veyed by it but respecting the consideration paid, and the
;
for the assurance of

personal contracts collateral to the title
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 considered as void ab initio."
i
Per Sewall,
J.
THE COVENANT FOR
SEIZIN.
This decision cannot, under the circumstances of the case,

It is distinguishable
be considered as open to objection.
from the other cases which have been referred to under this
statute, because
the spirit of the

ful
traffic
them the
act, and was
in
and although
came
plaintiff
it
directly within
really a party to the unlawis well settled, at least in
American law, that a purchaser of land
another State or
in
country, places himself as to that land in the same position

as its subject, and must be presumed to know the lex loci
rei sitoe, and to be willing that his contract should be gov2
erned by it, yet it would seem that such constructive notice

should not be deemed sufficient of itself to bring the conduct of the purchaser within such enactments as the Penn1
It is distinguishable, moreover,
from the case of Breckenridge v.
Moore, 3 B. Monroe, 629, because
there, although the plaintiff was an innocent holder, for value, of the note,
whose consideration was the conveyance of land in Kentucky held adversely at the time, yet the note was
sued upon in Kentucky, whose champerty acts had been violated
fori,
and the
lex loci rei
therefore the same
the lex
sitce
were
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
" no
expressly providing that
right
of action shall accrue to either party
under such deed
"
Graves
Leath-
prior to the issuance of patents should

"
be null and void ;
under which
statute
has been
it
Nichols
ever,
v.
Chand-
Doe v. Hays, 1 Carter, (Ind.)

R. 248; S. C. 1 Smith, (Ind.) 177.
2 Cutter v.
Davenport, 1 Pick.
Horsford v. Nichols, 1
(Mass.) 81
;
Wills
Paige, (N. Y.) 220
per, 2 Ohio, 1 24
Chapman
v.
v.
ertson, 6
Moore,
Id.
630; Breckenridge
365
Story's Conflict of Laws,
liams
CowRobv.
B.Monroe, (Ken.) 637;

;
Wil-
Maus, 6 Watts, (Pa.) 280.

Such, too, seems to be the law in
Robinson v. Bland, 1 W.
England
v.
Black. 246
S. C.
Al worthy,
17 B.Monroe, 668.
The same
applies to the act of Congress
of 29th of May, 1830, " granting preemption rights to settlers on the pub-
412
541
Birtwhistle
" that all

lic lands," which declared
transfers of the right of pre-emption
233
ers,
remark
what-
title
toppel.
v.
v.
no
Nichols, 3
but that a warler, (Wise.) 195,

ranty in a deed transferring such
right could have no effect, even by es-
Scott
held, not only
that the deed conveys
Curtis
v.
& Cress. 438

Waterhouse v.
;
465.
S. C. 13
Burrow, 1079
Dow &
Clarke,
Hutton, 14
Vesey,
v.
S.
Vardill, 5 Barn.
C. 9
Bligh, 32
Eng.
Hare,
Law and
Eq. R.
Stansfield,
44
THE COVENANT FOR
SEIZIN.
In the cases cited

sylvania statute, or the champerty acts.
New York and Pennsylvania, the purchaser had actual
1
notice of the enactment, and of the state of the title.
from
The
result, then, of these authorities, as
the doctrine of
actual
seizin,
to
appears
connected with
be
It is
this.
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
would give him a good right

within
the
convey
spirit of the statutes referred to.
With this interpretation, the language used in the cases
the subject of the purchase, as

to
it
which have been referred
to appears perfectly intelligible.

in
case
which
it would
only
appear that the covenants
could not be used for that purpose, would be where the pur-
The
chaser bought with such knowledge of the state of the

as to bring the case within the champerty acts.
It will
cerned,
title,
be observed that so far as those statutes are con-
it is
immaterial whether the adverse possession has

its commencement, or has continued for so
been recent in
long a time as, under the limitation acts, to have ripened into
It is the existence of the adverse possession
a perfect title.
which constitutes the offence which these
statutes forbid
which deprives the vendor of "a right
convey"
to
which
In considering the cases generupon the subject of a party to a
in violation of other statutory provis-
contract being cognizant of or participating in the illegality which affects
per, 342, which was much relied on

in deciding the case of Phelps v.
ally
it,
the student will find
some variety
of decision both in the English and
American
courts.
The
former, until
very recently, looked less severely

upon contracts connected with a violation of the revenue laws, than those
ions,
and Holman
v.
Johnson, Cow-
Decker, was one of the smuggling

cases.
The
course of decision upon
subject is noticed in Rawle's

edition of Smith on Contracts, p.
this
240, &c.
THE COVENANT FOR
SEIZIN.
effect as against the one in possession,

gives to his deed no
and which therefore causes a breach of the covenants re-
ferred
to.
Where, however, such statutes are not in force, and conconstruction can, consistently with
sequently where no such
be given to these covenants, the duration of the
adverse possession may be an important element in deterprinciple,
mining the question of the breach of the covenant
Where
for seizin.
the adverse possession has been so actual, continued,

and hostile, 1 as under the limita-
visible, notorious, distinct,
have formed an indefeasible
tion acts to
that the covenant
for seizin
however, altogether free
title, it
2
must be broken.
is
obvious
It is not,
from doubt whether such would be
the case if the possession had not endured for the requisite
3
It is certain that the English courts seem
length of time.
to treat
disposed, at the present day,
1
See the note to Taylor
v. Horde,
Leading Cases, 492.
Wilson v. Forbes, 2 Devereux,
in 2 Smith's
2
tled in accordance with the authority

But on more care-
just referred to.

ful
examination of the cases cited in
support of
30.
3
mere possession, un-
In Thomas
v.
Perry,
C. Rep. 52, Mr. Justice

was of the opinion, that "
sions
amounted
der claims of
Peters' C.
Washington
if the
possesto actual ousters un-
title
however
defective,
the covenant of seizin was broken,"

" that if
or, as he subsequently said,
at the time the
into, the
covenant
covenant was entered
grantor was disseized, the

broken, how good soever
is
be." p. 55.
(This, it
should be observed, was said without
his title
may
any reference
to the
which were not
champerty acts,
in force in
New
Jer-
The case, however, was desey.)

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-
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 indefeasible 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
Marshall, 430, however, the
J.
J.
Court
giving its general views on the

nature of the covenant (see them
in
supra, p. 25,) expressed an

" a covenant of seizin
opinion that
have
is broken if the covenantor
cited,
46
THE COVENANT FOR
SEIZIN.
accompanied by right, as destitute of all the qualities of an

1
And where in a case in the Exchequer 2 the vendor
estate.
covenanted generally that he was seized in
condition or other estate
fee,
without any
to alter, bar, change,

or
determine the same,
charge, burden, impeach, incumber,
and had good right
to
whereby
convey the same, and
appeared that
it
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,
of
the
able
Mr.
Preston, for the
argument
notwithstanding
the covenants did not extend to
plaintiff, it was held that
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
The action of covenant, it was added, only
pocket leases."
these leases.
It
extended to the consequence of legal acts, and the reason

8
to be found in the case of Hayes v. Bickerstaff, that
was
the law shall never judge that a

wrongful acts of strangers.
this
Upon
man
covenants against the
however, Lord St. Leonards has

"It will be observed that the
decision,
made
the following remarks
leases
were accompanied with actual possession by the leswho had expended money on the property. They
sees,
were, therefore, within the covenants ; and unless the covenants were held to extend to these leases, general covenants
would be waste paper.
for title
guard against a
to
may
it
They
are always intended
adverse to the covenantors, although

title.
Clearly the leases were a
title
not be a lawful
charge on the property at the time of the conveyance^ and

an ejectment at all events was necessary to dispossess the
not
the
possession,
possession,
the
and the
right
right
of
or legal
title."
1
Doe
Cully
v.
v.
Hull, 2 Dowl.
Doe, 11 Ad.
&
&
Ry. 38
1008;
Ell.
Doe v. Martyn,
8 Barn.
&
Cress. 497;
Jerritt v. Weare, 3 Price, 575.

9 Jerritt v.
Weare, 8 Price, 575.
3
118.
Vaughan's Rep.
THE COVENANT FOR

lessees.
covenant.
They
It is
SEIZIN.
4*7
were an incumbrance within the
therefore
not like the case of interruptions subsequent

1
The
by persons not claiming lawfully.
to the conveyance,
case was argued upon much higher grounds, and this probnot to give due weight to the above simably led the Court
it."
ple view of
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

scope and application, any difficulty which could arise
from the purchaser's being without remedy, in case of sub-
own
sequent loss, if he had received an actual seizin at the time

But although, if the covenant for seizin
of his purchase.
were the only one in the conveyance, the questions just considered would be of
much practical importance, yet they

even where there are also covenants
possess scarcely less,

For these covenants,
enjoyment or of warranty.
which are said to assure the purchaser's possession, are
for quiet
therefore broken only by his eviction from it ; and although

the doctrine of constructive eviction has been in some cases
few which allow a
carried very far, yet there are, perhaps,

1
It is this
which distinguishes the
to the third
of Title
case from
Hayes v. Bickerstaff.
Sugden on Vendors, 514.
By
St.
the higher grounds here referred to,

is meant the
position assumed by Mr.
ed,
Preston in the argument in favor of

the doctrine of disseizin, as
it
was
conceived by him (in common with

Mr. Charles Butler and others) to
have existed
at
common
law,
and
as
to the doctrines enforced
by
Lord Mansfield, in the case of TaySee
lor v. Horde, 1 Burrow, 49.
opposed
supra, note to page 16.
On
these
grounds, Mr. Preston never forgave

the decision in Jerritt v. Weare, as
his pointed
remarks in the preface
"
volume of the " Abstracts

Lord
sufficiently testify.
Leonards, as
gives
will
no opinion
be perceivas
to
this,
but questions the decision because

the general covenants for title were
held not to extend to these leases,
under which an adverse possession,
defeasible only
sprung
and
by an ejectment, had
his opinion
seems to be
generally adopted by the profession,

if we may judge from the fact that the
author of the recent rival treatise on
Law of Vendors and Purchasers,

has also intimated that " this decisthe
ion seems to be of very doubtful auDart on Vendors, p. 369.

thority."
48
THE. COVENANT FOR SEIZIN.
purchaser to elect to consider himself evicted, by buying in

the paramount title before it shall have been hostilely asserted.
Yet
there are
many
instances in which this
be most advantageous to him,
would
being always understood
(it
damages are measured by what he has paid,) in

preference to waiting till the paramount owner should choose
that his
to enforce his claim.
consider this
however, refuse to
as an eviction within the covenants for quiet
Many
authorities,
enjoyment or of warranty and where, under such circumstances, the covenant for seizin is held to have been fully
;
answered by the transfer of the actual

is in
ment
he
seizin, the
purchaser
same
position as if the covenants for quiet enjoy2

or of warranty were the only ones in the deed, and
the
obliged to await the time of his involuntary eviction,

instead of purchasing in the title, and thus acquiring a right
is
damages upon his covenant

the amount paid by him.
to
The
extent of
for seizin, to the
seem
doctrine of actual seizin does not, however,
to
prevail throughout the States generally, but only in Maine,

ElseMassachusetts, and to a qualified extent in Ohio.
where, the covenant for seizin is regarded as a covenant for

3
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
See Chapter VII.
Clark y. McAnulty, 3 Serg.
Rawle, 372.
1
3
1
Greenby
Morris
v.
p.
Wilcocks, 2 Johns.
AbPhelps, 5 Id. 49
v.
Allen, 14 Id. 48 ; Fitch

Baldwin, 17 Id. 161; M'Carty
bott
v.
2 J. J. Marsh. (Ken.) 430

see the
remarks on that case cited, supra,
;
&
25,
Thomas
v.
Perry,
C.
Young
North,
Bay, (S. Car.) 256
Croghan,
the case;
Howell
v.
Pringle
v.
see
the cases cited, supra, p. 27, note.

In England such has been always
Welborn, 2 Verm. 417;
DWight,
v.
v.
Peters' C.
Baker, 5
v.
Woods
Humph. (Tenn.) 309
Hastings
Witten,
Martin
v.
Legget, 3 Hill, (N. Y.) 134 Mott v.

Palmer, 1 Coinstock, (N. Y.) 564;
Pollard v.
Rep. 57
Cranch, 430 Fitzhugh
note;
Blackf. (Ind.) 232
310.
v. Briscoe, Noy, 142;

Richards, 11 East, 641 ;
Gray
v.
v.
llaincock,
Com. Bench,
THE COVENANT FOR
SEIZIN.
of time required by the limitation acts,
49
yet such a posses-
amount to an indefeasible
not marketable, would only be because its
sion
would
itself
title,
which
if
was a
validity
rather than of law.

question of evidence
whole
On the
view, therefore, of this subject, we may
conclude, that the weight of American authority is practically
opposed to the doctrine of actual seizin being sufficient
to support this covenant.

It
may, however, be observed that
nants for
title is
if
the law of cove-
abstractly treated as a part of
the law
of real estate, the student will be constantly led into pracThe law of real estate is an abstract and
tical difficulties.
system, based upon rules, many of which sprung

were applicable to a different state of society.
and
from,
These rules have required to be modified or changed with
It has been
great caution and delicacy, if at all.
generally
artificial
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,
acknowledged, that
subject, not to
it
is
judicial but to legislative alteration.
the law of covenants for
In part
this system.
it
is,
as
subject to
it
its
But
were, collateral to
and
in
part
intention of the
rules,
must be moulded and governed by the
parties as expressed
To
it is
title
by the tenor of the whole instrument.
say, therefore, that a particular construction given to a

covenant is or is not the law of a State, means
certain
no more than
practically
that
in
cases
of
difficulty,
the
intention of the parties will, to a certain extent, be referable to that construction.
But while
the intention of the parties is to be the

governing principle, yet it is conceived that in most instances in
which the relation of vendor and
is entered
purchaser
Wilson
v.
Forbes, 2 Devereux, (N. Car.) 30.

5
into,
50
THE COVENANT FOR
that intention,
is
when
applied to the averment that the vendor
and that he
seized,
SEIZIN.
will
bind himself to that
effect,
ex-
tends beyond such a mere seizin as will enable the

purchaser
to
obtain
possession
the
in
instance.
first
The
want of present possession is a defect which can be discovered by immediate observation or inquiry, and it is not
a defect against which a purchaser usually seeks to protect
Not
himself by a covenant.
a defect in the
so, as to
title.
An
analogy may be found in the rule with respect to

In the sale of these, a warranty of title is imchattels.
by the
plied
civil
and the common law. 1
But possession
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 ;
is all
and such,
it
is
is
believed,
purchasers of real estate
common
the
who
understanding of
receive a covenant for seizin.
There are several questions connected with the covenant for seizin, whose consideration, however, seems more
Thus the capacity of an heir
proper under other heads.
or an assignee to take advantage of this covenant will be
considered in the chapter on " the extent to which cove-
nants for
title
run with the land."
So, where a purchaser has, in giving a mortgage for the

in it the same covenants which
purchase-monej', inserted
he has received from his vendor, the question has arisen

i
At
least
such
the
is
common law
of this country, and it was so considered by the profession in EngIn a very recent case, howland.
ever,
in
(Morley
500,)
it
the
v.
Court of Exchequer,
Attenborough, 3 Excheq.
was held
that
implied warranty of
title
thtere is
no
in the con-
a personal chattel,
In a subsequent case, however, the
Court of Queen's Bench seemed by
tract of sale of
no means prepared
to
adopt
this
Simms v. Marryatt, 1 7
7 Eng.
Queen's Bench R. 281
decision
Law &
2
Eq. R. 336.
Chapter VIII.
THE COVENANT FOR
51
SEIZIN.
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
way of estoppel or rebutter."

Again, it has sometimes been
made a
by
title,
question, whether
covenant for seizin should be so construed, relatively
the
deemed an
to the quantity of land conveyed, as to be
surance
of the
the question
title
existence
resolves
of that
as-
Abstractly,
quantity.
whether a covenant for
itself into
implies a covenant for quantity, which
is
considered
on " implied covenants," 2 and as a general

rule must be answered in the negative.
in the
chapter
It
is
well
that
settled
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
veyed
the existence of a
is
no breach of
highway over part of the land con-
this covenant,
since
it
has been con-
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. 5 So
sistently settled that
with 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 affect
the covenant for seizin, 6 since a judgment, or a
right of
1
2
3
483.
Chapter IX.
Chapter X.
Jones,
Whitbeck v. Cooke, 15 Johns.

As to whether a public road is
a breach of the covenant against incunibrances, see the ensuing Chapter,

4 2 Inst. 705
Goodtitle v. Alker,
;
Burrow, 133; Cortelyou v. Van

Brundt, 2 Johns. 357; Jackson v.
Hathaway, 15 Johns. 449 Lewis v.
1
Barr, (Penn. State R.) 336
Peck v. Smith, 1 Connect 103-147.

5 Ginn v.
Hancock, 31 Maine, 46.
6
Tuite
shall,
v.
Miller,
10 Ohio, 383;
Croghan, 2 J. J. Mar(Ken.) 430 Sedgwick v. Hol-
Fitzhugh
lenback,
v.
Johns.
380
Lewis
v.
Lewis, 5 Richardson's Law R. (S.

Jeter v. Glenn, 9 Id.
Car.) 12;
376.
THE COVENANT FOR
SEIZIN.
dower, do not devest the technical title or seizin of the

grantor; and a mortgage, although in strictness it purports 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,
had
however, the mortgagee
entered under his mortgage (as is allowed by local statutes

in
many States), the covenant would, it is supposed, be
held to be broken.
breach
will,
however, be caused by the existence of an

2
or, it is apprehended, of a term of
life estate,
outstanding
So if the grantor has only an estate tail ; and in a

years.
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.
that one of the parties
But where the alleged breach was

to a deed was a minor, it was held
having passed to her grantee until disaffirmance by her after majority, 6 there could therefore be no
that the
title
breach of the covenant until she entered or in some legal

So a breach will occur if
mode avoided the conveyance. 6
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-
Thus in
and pass by a grant of the freehold.
the
a recent case it was held to be broken where
grantor
tenant to
in
it
The passage in the text was cited

the recent case of Reasoner v.
Edmundson, 5 Indiana, 394, where

was held that the mortgagee not
it
having
seizin
the
entered,
covenant
for
was not broken.
Comstock
v.
22 Vermont, 106.
Smith, 23 Connect.
352.
4
567.
Morrison
v.
Me Arthur, 43
Supplement
(N. Y.)
grantor
2 Mills v.
Catlin,
3
5 See as to this Bool v. Mix, 1 7

Wendell, (N. Y.) 132.
6 Van Nostrand v.
Wright, Lalor's
Maine,
is,
to
Hill
&
Denio's
R.
The
minority of the
however, a breach of the
260.
covenant for good right to convey

Nash v. Ashton, T. Jones, 195.
7 Bacon
4 Gushing,
v. Lincoln,
;
(Mass.) 212.
THE COVENANT FOR
53
SEIZIN.
had, before the conveyance, sold to another a quantity of rails

which had been erected into a fence, and thereby formed
1
and a similar principle has been appart of the freehold,
under the covenant of warranty, to buildings upon the
plied
land, the right to
and
remove which was vested
did not pass to the purchaser
As
in other parties
by the conveyance.
in an action
respects the pleadings
this cove-
upon
nant, it has been settled from an early period that in assigning the breach of the covenants for seizin and of good right
to do more than negative the
to
it is
unnecessary
convey,
words of the covenant generally. In Bradshaw's case, 3 which

was an action brought on a covenant in a lease that the lessor
was held "
to lie more properly

what
estate he himself has
the
lessor
of
knowledge
in the land which he demises, than the lessee, who is a
had
full
power
to convey,
it
the
in
stranger to
what
it
estate he
and therefore the defendant ought

had
to
show
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
4
case,
where the covenant was contained
a freehold,
it
from that just

have shown of what
this case
to
in
a conveyance of
was endeavored, on demurrer,

cited,
"because the
estate the defendant
regard he had departed with
his
all
to
distinguish
plaintiff
was
ought
seized, in
writings concerning
the land, in presumption of law, and therefore the plaintiff

well knew the title ; and it is not like to Bradshaw's
was with
But
writings."
case because there the covenant

years,
who had
not the
was not recognized, and

1
Mott
v.
Palmer,
West
v.
Coinstock, (N.
Stewart, 7 Barr, (Penn.

This case came again
for
before the Court on another ground

2 Harris, (14 Penn. State R.) 336.
3 9
4
Coke, 60.
Glinnister
mond,
5 *
lessee
the rule in Bradshaw's case has
Y.) 527.
State R. 122.
the
this distinction
14.
v.
Audley, T. Ray-
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 action on the covenant for seizin it is
unnecessary either to
aver an eviction in the declaration or lay any special dam-
age.
distinction thus exists, as

respects the pleadings,
for seizin
(with which may be classed
between the covenant
the covenant for right to convey), and the other covenants

title, as, in suing upon the latter, it seems, in the first
for
place,
mount
generally necessary that the incumbrance or paratitle should be

particularly specified in the declara-
tion, as well,
Nor
is
it
3
perhaps, as the results which it has caused.
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
4
in
Ch.
case
J., in stating
Massachusetts, Parsons,
early
"
some general propositions, remarked that the defendant in
regularly maintain his seizin, and then the

his replication should aver who in fact was
his bar should

in
plaintiff
New
seized," yet, as was said in a subsequent decision in

5
York, that case presented a question of evidence merely,
1 Muscat v.
Ballet, Cro. Jac. 369 ;
2 Saimd. 181 b, note 10; Bender v.
seems, however, to have been otherwise formerly, in Ohio, under a local
which has since been
Clark v.
Fromberger, 4 Daft. 436
McAnulty, 3 Serg. & Rawle, 372;
statute,
Blanchard
Ohio, 526.
Marston
Wait
v.
v.
v.
Hoxie, 34 Maine, 376;

Hobbs, 2 Mass. 433
Maxwell, 4 Pick. 88
Bacon
Lincoln, 4 Gushing, (Mass.) 212;

Floom v. Beard, 8 Blackford, (Ind.)
76
Abbott v. Allen, 14 Johnson,
v.
248; Pollard v. Dwight, 4 Cranch,

430 Duval v. Craig, 2 Wheat. 62,
;
pealed;
ford
Collins,
2 Nott
Lot
Rickert
v.
Snyder, 9 Wend. 421.
v.
It
v.
Rose, 2 Root, 14, must probait is
local
opposed to
the current of authority.

2
Abbott
v.
Allen, 14 Johns. 248;
Smith, 3 English, (Ark.) 368.

See infra, Chap. III. V. and VII.
Bird
4
v.
The
statute, as otherwise
McCord, (S. Car.) 186;

Thomas, Pennington, (N.'Jer.) 300;
Mackey
re-
Neil,
bly have proceeded on some
v.
early case to the

same effect in Connecticut, of Wil-
&
note
Robinson
see
v.
Marston
Abbott
Platt, J.
v.
v.
Hobbs, 2 Mass. 433.

Allen, 14 Johns. 248.
THE COVENANT FOR
" All that
and not a question of pleading.

the plaintiff," said the Court,
"
is
55
SEIZIN.
is
incumbent on
to negate the title of the
who
pleads affirmatively and generally that he

had a good title, and the general replication in this case is
This differs from the class of cases where the
sufficient.
defendant,
of the covenant ; and then

plea avers a general performance
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 declaration may assign the breach generally, that the covenantor
did not repair, etc.
ally
is
the defendant
a performance of his covenant
then plead generand the plaintiff, then,
may
;
wherein the repairs

order that the defendant may be ap-
required in his replication to specify
have been omitted,
in
what is the object of the

prised, with reasonable certainty,
for
The reasons
suit.
requiring such a special replication
are, first, that the subject to which the covenants relate is perfectly
known
to the party
second, the suit has a
complaining of the breach
more general
aspect,
and,
and the subject of
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
the breach
is
multifarious.
unroofed, or that the fences are prostrate,

In this case, the point in controversy is single and ab-
that the barn

etc.
The
stract.
is
an indefeasible
title
may
It
is,
merely, whether the defendants had

and the only evidence in relation to that
question
title,
is,
be exclusively in the power of the defendants."

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
in
an
respects the burden of proof, it is well settled that

action upon the covenants against incumbrances,
i
Blanchard
v.
Hoxie, 34 Maine, 376.
THE COVENANT FOR
56
of warranty,
for quiet enjoyment, or
who
plaintiff,
in ejectment.
the
in
is
the paramount
it
cast
is
upon the
instance obliged to make out

the particularity of a plaintiff
first
with
title
SEIZIN.
all
how
It is doubtful
on the covenant for
such a rule
far
On
seizin.
applicable to actions
is
hand
the one
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
he
is
bound
of his covenant.
1
Thus
in
being supposed to rest with the defendant,

maintain the affirmative
in the first instance to

2
Kennedy
On
v.
the other hand,
Newman,
and
did not, step by step, prove the regularity of proceedings under a minis-
session.
by which
had been devested.

2 And such was held
in the
to
his title
be the law
recent case of Swafford
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
would seem con-
perhaps impossible for him to prove,

in relation to which the defend-
Sandford's Sup. C. R. (N. Y.) 187,

the plaintiff was nonsuited because he
terial jurisdiction
it
ant has
the evidence in his posit is laid down that
all
Hence
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 himself in an action of trespass quare
clausum
fregit. 1 Stark.
In Ayer
v.
same rule
Ev. 4 18-4 23.
Austin, 6 Pick. 225, the
is
recognized as applicable
to all cases,
when, by the pleadings,
upon the plaintiff, and the onus

probandi is on him to establish what
he affirms. But it frequently hap-
nothing essential to the action is required of the plaintiff, and when the
pens that in making up an issue, the

defendant assumes the affirmative
upon
lies
finding for the defendant depends

affirmative proof from him. In
proposition, or confesses and seeks to

avoid the action, and would fail if no
the present case
evidence in avoidance should be ad-
The
the jury.
that he was lawfully seized of the
duced by him. In such event the

proof is incumbent on the defendant, as the party who would fail, if
no evidence should be given on
either side, or as the
party
who
has
thrown a negative proposition on the

plaintiff, which might be difficult, and
single
point in
premises.
Upon
there was but a
controversy before
defendant pleaded
this
assumed the affirmative
he
was for
as it would
question
;
it
his interest to prove it,

operate a complete bar to the action.
The nature of the title to the premises
may have rendered
it
extremely
THE COVENANT FOR
SEIZIN.
57
that a vendor who had given a

trary to general principles
covenant for seizin could be called upon at any time after
the execution of the deed, and at the caprice of his cov-
out affirmatively a perfect title, without a

defect or some loss having been shown in the first instance.
enantee, to
make
the true rule is to be found between

probable that
these extremes, and that while a Dlaintiff is not obliged to
It is
in suing
prove the defect with the particularity required
on the other covenants, he cannot throw entirely upon his
vendor the burden of maintaining the perfection of the

1
he has conveyed.
title
rise to more discusquestions in the law have given

sion in this country, than the measure of damages upon
Few
covenants for
was
first
title.
From
superseded by
time, comparatively
the period when the old warranty

these covenants down to the present
aid
little
is
obtained from English au-
to the title
the deed was executed;" aiid in

Abbott u. Allen, 14 Johnson, 253, it
was said, " Until the grantor discloses
his title, the plaintiff holds the nega-
sively
tive merely,
difficult,
or even impossible for the
plaintiff to prove the negative averment, as the only evidence in relation
may have been excluunder the control of the deIf he had title at the time
fendant.
the deed declared on was executed,
he could easily have shown it and
if he had no title, the covenant was
;
or prove
and
any
outstanding
is
not bound to aver
fact in regard to
title.
grantor has no right to

sponsibility
from
his
an
The
shift
the re-
own
shoulders
broken, regardless of any third person who may have had the title.
by imposing it on the grantee to

aver and prove at his peril any par-
conclude then that the Court did not
ticular outstanding title."
err in deciding that the onus probandi lay upon the defendant." So
1 And in some of the cases

be found that the plaintiff,
Marston v. Hobbs, 2 Mass. 437,

the defendant having admitted the
execution of the deed, it was of
averring generally that the defendant was not seized, went on with
We
in
course held that the plaintiff was not

obliged to produce it, and then the
" The defendCourt went on to
say,
ant to maintain the issues on his part
was obliged
to
prove
his seizin
when
it
will
after
show the defective

Polwhich he had received
Balard v. D wight, 4 Cranch, 431
his evidence to
title
con
212.
v.
Lincoln, 4 Gushing, (Mass.)
THE COVENANT FOR
58
SEIZIN.
thority, while the rules of the civil law, in the
endeavor to
afford in each case a full compensation for the injury sustained, are so varied as in
1
But on
trary.
this
some instances
to be almost arbi-
side of the Atlantic the subject has
been handled with a fulness and precision readily accounted

great practical importance in a country where the
value of land is constantly varying, owing to rapid improvement or other circumstances incidental to its settlement. It
for
its
by
be hereafter
will
seen
with
that
regard to
the cove-
nants for quiet enjoyment and of warranty, the measure

of damages has, notwithstanding this discussion, been regulated by a different standard in different States.
But as
respects the covenants for seizin and of good right to convey, 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
upon these covenants the damages are limited by the

As a general rule, this
consideration-money and interest.
action
is
They may, under some
the standard.
below, but can never exceed
The
it.
question of the measure of
for seizin
seems
have been
circumstances,
fall
damages on a covenant
presented in this country

4
v. Ten
Eyck, decided in the year
1805, and to the principles there partially advanced, but
to
first
the case of Staats
in
more fully considered in the ensuing year in Pennsylvania,

6
in Bender v. Fromberger, and again in New York, in
1809,
in
Pitcher
v.
6
Livingston, consistent assent has been
given.
It is
1
elsewhere remarked
Dam-
See, passim, Sedgwick on
Infra, Chapter VH.

is to
say the real considera-
That
tion, for as is hereafter

p. 68,)
evidence
some
is
shown
(infra,
admissible to show
diversity of opinion
that the consideration
deed
ages, 24, 27.

a
that
is less
3 Caines, 111.
5 4
Dallas, 436.
6 4 Johns. 1.
7
named
in the
than that actually paid.
See Chapter VII.
THE COVENANT FOR
SEIZIN.
has existed at the present day as to whether the remedy

afforded upon a voucher to warranty or a warrantia chartce
restricted to other lands, or whether, in default of these,
was
damages were awarded
clear that the
it is
be,
However
in their place.
this
may
measure of value was taken
perfectly
to he 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
2
like the value of
compensation, but the pecuniary damages,
or
its
the feud given as a recompense,
equivalent, received
1
Ab.
19 Hen. VI. 45, 46

tit. Voucher, pi. 69
in Value, pi. 59.

2 It is a little
Brooke's
Recouver
singular that the

v.
sustains a loss
money can do
to
it,
rea-
by
son of a breach of contract, he

far as
Thornhill, 2 H.
Black. 1078, has in several instances
been cited as a direct authority for
case of Flureau
where a party
is,
so
be placed
same condition with respect to

as if the contract had been
performed. The case of Flureau v.
in the
damages
Thornhill qualified that rule of the

It was there held that
law.
That well-known case

decided no more than that upon a
common
contract for the purchase of real estate, to which the vendor was (with-
are merely on condition that the

vendor has a good title, so that when
this position.
make a
out fraud) unable to
title,
purchaser was not entitled
to
the
dam-
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,
ages
must now be considered
as settled
both sides of the Atlantic
on
Sugden
on Vendors, (llth ed.) 424 Walker

v. Moore, 10 Barn. & Cress. 416
;
Worthington v. Warrington, 8 Com.

Bench, 134; Pounsett v. Fuller, 17
Com. Bench, 660
McClowry v.
Croghan's Adm., 7 Casey, (31 Penn.
;
State R.) 22
S. C.,
more
ported, Grant, (Pa.) 307

v.
v.
fully re-
Thompson
Guthrie,9 Leigh, (Va.) Ill
Allen
Anderson, 2 Bibb, (Ken.) 415.
"The
rule
of
the
said Parke, B., in
man,
common
Robinson
Exchequer, 850,
"
v.
is
contracts for the sale of real estate
a person contracts to sell real property, there is an implied understand-
make
fail to
a good
the only damages recoverable

are the expenses which the vendee
may be put
title."
An
to in investigating the
exception has been en-
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. & Cress. 31
Robinson v.
grafted
Harman, supra
Wharton,
(Pa.)
Lee
331
v.
;
Dean, 3
Bitner
v.
Brough, 1 Jones, (11 Penn. State R.)

127, though this latter exception,
however apparently well settled in

practice, cannot, it has been said, be
law,"
justified or
Har-
Pounsett
that
he
ing, that if
title
v.
explained in principle
Fuller, supra ; Sedgwick

on Damages, 208. The truth is, as
THE COVENANT FOR
60
no increment,
from the
either
ventitious means, or
SEIZIN.
rise of the
property by ad-
by improvements put upon
it.
question before the Court was

limited to whether the vendor should be held liable for a
In Staats
v.
Ten Eyck, the
in the value of -the land
rise
from adventitious sources
in-
dependently of beneficial improvements, and the policy of
adhering to the rule which governed the remedy in the

l
to be
ancient action of warranty, was declared by the Court
not only in accordance with authority, but based upon reasonable 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; arid 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
town
mine or the progress of a
in its neighborhood.
The common-law
doctrine
was therefore adhered
to,
and
damages on a breach of the covenant for
the measure of
seizin declared to be the value of the lands at the time of

sale, the best estimate
tion
and
of which was found in the considerato counterbalance the claim for
money paid
it was deemed
proper
profits,
;
mesne
to allow interest upon this

amount whenever they could properly be recovered by the
2
The question how far the vendor should
paramount owner.
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.
Strode's Heirs, 2 Bibb, (Ken.) 277,

that it is rather from the absence of
decisions in England, that we must
arrive at the conclusion stated in the
" In all the comments made
text
:
by the elementary writers on the

change introduced by the covenants
for title, none mention any change in
the
amount of recompense to the

which would scarcely have
plaintiff,
happened in case these covenants

had introduced a new measure of
damages."
*
Kent, Ch.
J.,
delivering
the
opinion.
2
As
to the
see infra.
allowance of interest,
THE COVENANT FOR
61
SEIZIN.
This case was, in the ensuing year, followed in Pennsylvania by Bender v. Fromberger, where a special verdict
was found for the plaintiff, subject to a reduction if the
1
was not entiimprovements made by him
Court should be of opinion that the

tled to recover the value of the
It
after his purchase.
on behalf of the
seems
2
plaintiff,
plaintiff
have been strongly urged

measure of damages on
to
that the
covenants was the amount of loss actually sustained, and

that the reason why in a warrantia char tee the recovery was
all
confined to the original value of the land, was because in

But it was held
real actions no damages were recovered.
by the Court,
that in the latter case, the value at the time of
the voucher might have been recovered without recovering

3
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
warranty only for so
to
much
was
as
at the
time of making
the deed, otherwise the plaintiff would recover according to

The true reathe value at the time of bringing the action.
son,
therefore,
appeared to be, that the intention of the
was
so understood that the warranty should be limparties

ited to the value of the land at the time of
executing the
deed, and such
was held
modern covenant.
to be also the rule
4 Dallas, 436.
The arguments of counsel are
4 " It
not fully reported but the Court, in

" the
its opinion, noticed
very well
;
arranged and able argument of the
Godboldt's Rep. 152.

has been contended," con-
tinued Tilghman, Ch. J., who delivered the opinion, " that the true meas-
ure of damages in all actions of covis the loss

actually sustained,
ingenious young gentleman who bethe late Mr. Sergeant,

the
gan,"
But
commencement of whose
ally.
eminence
professional
dated from this case, as
Lord Eldon's from
that of
Ackroyd
Smithson see 7 Campbell's Lives

of the Chancellors, p. 71.
v.
upon the more
enant
down too generIn an action of covenant for
this rule is laid
non-payment of money on a bond or

mortgage, no more than the principal
and legal interest of the debt can be
recovered, although the plaintiff
may
THE COVENANT FOR
SEIZIN.
But in the subsequent case, in New York, of Pitcher v.

1
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
on the consider-
entitled to recover interest
money, and whether he could recover damages for imAs to the

provements and for increased value of the land.
ation
allowance of interest,
was
it
held, that
no doubt could be en-
tertained as to the propriety of the decision in Staats v.
Eyck.
have
It
had been adopted
suffered
to
a much
in
greater
amount by the default of payment.

The rule contended for by the plaintiff's
counsel, in
its
utmost latitude,
applied to covenants like the present,

would in many instances produce ex-
Pennsylvania and
the prevailing
in
Ten
Massa-
among
opinion
the
most eminent counsel was, that the

standard of damages was the value of
the land at the time of
contract."
The
Ten Eyck was
case
making the
of
Staats
v.
referred to in the
Indeed, the counhave, in some measure, given up
course of the argument, as also the

cases of Liber v. Parsons, decided in
rule, by confessing that when

buildings of magnificence are erected
to gratify the luxury of the wealthy,
the year 1 785, and Guerard's Executors v. Rivers, decided in 1792,
cessive mischief.
sel
this
it
would be unreasonable
damages
to the
to
extent of the
give
loss
but the ruinous consequences would

not be less to many persons who have
sold lands on which no other than
been erected.
useful buildings have

The rise in the value
of land, not
only in towns on the sea-coast, but

in the interior part of the United
can hardly be
supposed any prudent man would
undertake to answer the incalculable
damages which might overwhelm his
family under the construction contended for by the plaintiff. I have
States,
is
such that
it
taken pains to ascertain the opinion

of lawyers in this State, prior to the
American Revolution
and
think
myself warranted in asserting, from

the information I have received, that
(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 decided in the hurry of a jury trial,
and not founded on the mature deliberation given by the

Judges in Staats v. Ten
New York
Eyck. It
must be observed also, that the South
Carolina cases were both actions on
covenants of warranty and not on
the covenant for seizin, and the distinction between the measure of damages on these two covenants is still
recognized in several of the States,
though long since repudiated in

South Carolina. See w/ra, Chapter VII.
1
4 Johnson,
1,
decided in 1809.
THE COVENANT FOR

chusetts.
As
improvements, the comIf land be better after feoff-
to the allowance for
mon law was
unquestioned.
buildings or otherwise, he
ment, by
63
SEIZIN.
receives as the land
was worth
who
receives in value
at the time of feoffment,
and
It was never designed by the introduction of

no more.
The
covenants to establish any other value of damages.
rule of the civil law left the damages to an arbitrary and
undefined discretion, and destroyed anything like a fixed

Whatever expectations of rise in value the purchaser
rule.
have had were confined to him alone, and could not
may
It was the
have entered as an ingredient into the bargain.
land and its price at the time of sale which the parties had
in view,
and
to that subject the operation
of the contract
The damages were therefore held to

ought to be confined.
3
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
same effect will be found in nearly every State in the

4
Union where the covenant for seizin is employed. It must,
to the
See Marston
Hobbs, 2 Mass,
v.
Year Book, 30 Ed. III. 14 b;

Hen. VI. 46 a. See also 47
Ed. TTT. 32, where it is said: "On
voucher, if special matter be shown
19
by the vouchee, viz
that the land at
the time of the feoffment was worth

100, and now at the time of
only
the voucher is worth 200 by the in-
dustry of the feoffee, the tenant shall

recover only the value as it was at
the time of sale
for if the act of the
feoffee has meliorated the land, this

shall not prejudice the feoffer in his
warranty."
3
members
with which the other
of the
Court concurred.
433.
Some
of the cases are Marston
v.
Hobbs, 2 Mass. 433 Caswellv. Wendell, 4 Id. 108; Smith v. Strong, 14

Pick. 1 28
Stubbs v. Page, 2 Greenl.
;
376
v. Willson, 5 Foster,
(N. Hamp.) 234 Mitchell v. Hazen,
4 Conn. 495; Sterling v. Peet, 14
;
Willson
Id.
234
Whiting
v.
Nissly,
(13 Penn. State R.) 655
Har-
Tapley
v. Lebeaum, 1 Missouri, 550
Martin i>. Long, 3 Id. 391; Wilson v.
Forbes, 2 Dev. (N. Car.) 30 Logan
v. Moulder, 1 Pike, 323
Bacchus v.
McCoy, 3 Ohio, 211 Clark v. Parr,
ris,
dissenting opinion was given

in this case by Spencer, J., but it
yields in force of
argument
of Kent, Ch. J. and
Van
to those
Ness,
J.,
14 Id. 121;
Cummins
v.
Kennedy,
3 Litt. (Ken.) 118; Cox's Heirs r.

Strode's Heirs, 2 Bibb, (Ken.) 277
;
Swafford
v.
Whipple, 3 G. Greene,
04
THE COVENANT FOR
however, be noticed that the rule
SEIZIN.
in question
must be apseizin and of
plied in its generality only to the covenant for

On the covenants for quiet enjoyment
right to convey.
and
of warranty, a different standard prevails in many of the

States, the damages being assessed by the value of the land
time of eviction. 1
at the
It
may
be remarked that although the cases which have

all based
upon an absence of fraud
been thus referred to are
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 2
in
Pitcher
v.
Livingston that
"
if
any imposition is practised by the grantor by the fraudulent suppression of truth or suggestion of falsehood in
relation to his title, the grantee may have an action on the
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 plaintiff had received a covenant
;
fpr seizin
from the defendant's
tor in a
conveyance of property in
testa-
New
for
Hampshire, the consideration

which was $18.67. The plaintiff
known
statutes
as
claimant law," by
cases, the
to
pay
paramount owner is obliged
to the
value of
" the
occupying
which, in some
all
occupying claimant the
permanent and
sold the property for $113.33, with

covenant of warranty, on which he
mer
was sued by his grantee, who had

been evicted from the possession, and
Ohio, (ed. of 1841,) 607;
then recovered $555.49, being the

value of the land at the time of
eviction, this being the
shire
New Hamp-
measure of damages on the cov-
enant of warranty.
Notwithstand-
the value of the land without
the improvements.
Baylor,
v.
is
Harden, (Ken.) 528; Cox
party lawfully in possession under a

defective title, has made permanent
improvements, and the true owner,

he come into equity to obtain his
estate, is compelled to allow for such
if
amount which he had himself paid
improvements
for the property.
1239.
The
rapid increase
in a
of improvehas led to
new country
the passage, in
some of the
States, of
See statutes of
Hart v.
Strode, 2 Bibb, (Ken.) 278. This

the familiar rule in equity when a
ing these circumstances, the plaintiff

was limited in his recovery to the
ments
lasting
improvements, unless the latter should

refuse, on demand, to pay to the for-
2 Story's Eq.
See Chapter VII.
By Van
Ness, J.
799,
THE COVENANT FOR

would recover
was
it
also said
Bender
in
v.
and although
Fromberger, that "if the
the full extent of loss,"
to
65
SEIZIN.
of any fraud, concealment, or artifice, to

mislead the purchaser in examining the title, the case is difenferent, he will be answerable for all losses which may
make use
seller
sue," yet it would be difficult to conceive how, in the action

on the covenant, the jury would be allowed to increase the
2
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.
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
In
deemed
facie the best evidence of this

value, since such was the agreement of the parties at the
deed
is
to be
primd
Where, however,
time, as thus expressed by themselves.
no such consideration appears, the value of the land must
be ascertained from other evidence.
But
the consideration
as
is
thus
deemed
to be
primd
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 Eng5
to sanction the introduction of any evidence inlish cases
1
384
Harg.
a,
tit.
&
But. notes to Co. Litt.
Warranty
Fonb. Eq.
366; Com. Dig. 236, A.
King u. Pyle, 8 Serg. & Rawle,

166, was not an action on a covenant
for title, but
a defence to payment of
the purchase-money of land which
had been sold with fraudulent reprey.
its
quantity. See
Dean, 3 Whart. 316.

3 Marston v.
Hobbs,
6*
v.
souri,
sentations as to
Smith
ley
Lee
Litt.
v.
Strong, 14 Pick. 128
Lebeaum's Executors,
(Ken.) 118
433
v.
TapMis-
Kennedy,
Wilson
v.
Forbes,
Devereux, (N. Car.) 30.

4 Smith v.
Strong, 14 Pick. 128
Byrnes v. Rich, 5 Gray, (Mass.) 519.

See infra.
5
Some of
Rowntree
2 Mass.
Cummins
550;
Sampson
r.
v.
the later of these are
Jacob, 2 Taunt. 141;

Corke, 5 Barn. & Aid.
THE COVENANT FOR
66
SEIZIN.
consistent with any part of a statement in a deed, such reluctance seems to have been much overcome in this coun-
and
try,
well settled
is
it
by American authority
that al-
though (apart from
all
question of fraud) evidence to exthe
consideration
is inadmissible if introduced
or
vary
plain
either directly or indirectly to defeat the conveyance (as
it
by showing
on a valuable
not founded
because
void,
any purpose short of affecting

consideration,)
the title, the consideration clause is not only no concluyet that for
sive evidence that the
money was
paid, but
is
only primd
the
which
of
evidence
amount,
facie
may, by parol proof,
2
606; Baker
v.
Dewey,
Barn.
&
Cress. 704.
1
502
89
As
;
in Wilt
Franklin, 1 Binney,
Farrington v. Barr, 36 N.Hamp.
v. Soper, 6 Harr. & Johns.
u.
Hum
(Md.) 276; Betts v. Union Bank,

1 Ear. & Gill, (Md.) 1 75
Clagget
;
v.
Hall, 9
Wade
v.
Gill
&
Johns. (Md.) 91
Merwin, 11
v.
Tirrell,
Id. 288;
20 Pick. 247
Clapp
McCrea
v.
Purmort, 16 Wend. 460; Burbankw.

Gould, 15 Maine, 118; Meeker v.
Meeker, 16 Connect. 383; Beach
v.
Packard, 10 Vermont, 96
ham
Bing-
Weiderwax, 1 Comstock, (N.

Y.) 509 Watson v. Blaine, 12 Serg.
v.
&
Alberts, 1 Gill, (Md.) 423 ;

Elysville Man. Co. v. Okisko Co. 1
Bolton v. Johns, 5
Rawle, 131
Barr, (Pa.) 145 Higdon v. Thomas,
Hender-
(Md.) 139; Wolfe

Hauver, 1 Gill, (Md.) 84 Duvalv.
Bibb, 4 Hen. & Munford, (Va.) 113
Harvey v. Alexander, 1 Rand. (Va.)
Cole
v.
Maryland Ch. Decis. 392
Harr.
&
Gill,
Henderson, 13 Missouri, 152.

In the case last cited, it was held
that evidence was not admissible in
v.
an action brought by a son against

his father's executors on a covenant
219; Wilson v. Shelton, 9 Leigh,

(Va.) 342 Curry v. Lyles, 2 Hill,
against incumbrances contained in a

deed given by the latter to the for-
404; Jones v. Ward, 10

Yeager, (Tenn.) 166 Garret v. Stuart, 1 Me Cord, (S. Car.) 514 Gulley
v. Grubbs, 1 J. J. Marsh. (Ken.) 388
son
i?.
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
son
2
very similar to those in HenderHenderson.
v.
Bullard
v.
Briggs,
Pick. 533
(S. Car.)
Hartley v. McAnulty, 4 Yeates, (Pa.)

95; Hayden v. Mentzer, 10 Serg. &
Rawle, 329 Dexter y. Manley, 4
;
Cush. (Mass.) 26 Jack v. Dougherty,

3 Watts, (Pa.) 158, where tho language of Parker, Ch. J., in Bullard v.
;
Briggs,
is
ahan
Colgin, 4 Watts, 436
v.
approvingly quoted
v.
Cartledge,
(Pa.) 399.
bridge
Watts
Mon-
Straw-
&
Serg.
THE COVENANT FOR
SEIZIN.
be shown to be greater or less tban that expressed in the

deed.
1
In other words, that the
effect
is
of
the
to estop the
only
consideration-clause
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 purpose of the acknowledgment in a
deed was merely to prevent a resulting trust to the grantor, the clause
being merely formal or nominal, and
rule
was thus broadly
Parker, Ch.
7
533
Pick.
"
:
or less than
is
expressed in a deed
parol evidence as
may be proved by
Belden
proved."
language
"
Whenever a
right
is
ent consideration,
appear
v,
tract, the operation
of law, or otherwise, 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 susceptible of explanation by extrinsic

circumstances or facts. Thus a deed,
or a covenant in
writing, so'
far as they transfer or are intended
to
will,
be the evidence of
rights,
cannot
v.
differ-
may
earlier cases,
later ones,
be
and
which
way, (ScherJohns. 139

;
Parker, 3 Id. 508
Anulty, 3 Serg.
Harris
valuable,
Hayden,
ley
and common-sense
if
to lean the other
merhorn
employed for that purpose, parol evidence is inadmissible to alter or conconstruction of the instrument; but
any writing which neither by con-
and even a
There are some

even some dicta in
vested or created or extinguished by

contract or otherwise, and
writing is
tradict the legal
Briggs,
consideration
The
but we think it
sive upon this point
has been reasonably settled that this
matter is open to evidence. More
the consideration
Seymour, 8 Conn. 312. In

McCrea v. Purmort, where many authorities are collected and commented on, Cowen, J., held the following
v.
proposed to be proved is different

from that expressed in the deed, and
it is
objected that the deed is conclu-
not designed to fix conclusively the

amount either paid or to be paid.
v.
down by
laid
Bullard
J., in
Maigh-
Steele u.
v. Hauer, 7 Id. 342;
Clark v. McAdams, 1 Greenl. 1
;
&
Rawle, 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 covenants but those for seizin or warranty, the consideration was inserted
purpose of fixing the amount
for the
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
But
now
it is
not
conclusion.
necessary to decide
" I
submit, however,"
be contradicted or opposed in their
the question."
legal construction
says Mr. Sedgwick, in quoting this

" that
any distinction as to
passage,
the purpose for which the parol proof
by facts aliunde.
and other writings which
only acknowledge the existence of a
simple fact, such as the payment of
money, may be susceptible of explanation, and liable to contradiction by
So in Massachusetts the
witnesses."
But
receipts
is
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
As
a consequence of
this,
SEIZIN.
has been held that in an
it
action on the covenant for seizin, evidence
show
the part of the plaintiff, to
is
admissible on
the actual consideration to
be greater than that expressed in the deed, for the purpose

of increasing the damages ; l and on the other hand equally
admissible on the part of the defendant to show the consid2
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 consideration
was paid
for
at the
is
it
though
it,
same time
admitted that such evidence
damages, and not
tion of
breach of the covenant
is admissible
solely in mitigafor the purpose of negativing a
and where,
a very recent case,
in
whether as
had been by mistake erroneously
and
serted as
to rights or remedies ;
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 DamThese remarks must be
ages, 178.
taken
subject to the qualification

above referred to, that such evidence
inadmissible
goes to destroy
the efficacy of the deed as a conveyance.
is
304
Belden v. Seymour, 8 Connect.

Dexter y. Manley, 4 Gush.
;
(Mass.) 26.
2 Morse v.
229; Harlow
70
if it
Bingham
Shattuck, 4 N. Hamp.
v. Thomas, 15 Pick.
v.
Weiderwax,
Corn-
Swafford v.
(N. Y.) 514
Whipple, 3 G. Greene, (Iowa,) 267
Martin v. Gordon, 24 Georgia, 535;
Cox v. Henry, 8 Casey, (32 Penn.
stock,
State R.) 19
Moore
Smedes & Marshall,
v.
McKee,
(Miss.) 438.
In
Hawkins, 2 J. J. Marshall,
it
seems to have been
(Ken.)
thought that where a consideration
Yeltori
v.
2,
56 instead of
in-
43, evi-
dence would not have been admissible to prove this as a defence at law,
but that relief could be had in equity.
In Coger v. McGee, 2 Bibb, (Ken.)
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.
SLeland v. Stone, 16 Mass. 463;
Barnes
Nutting
v.
Learned, 5 N. Hamp. 264

Herbert, 35 N. Hamp.
v.
127.
*
264.
Nutting
"
v.
Herbert, 35 N.
The testimony could
Hamp.
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 offered to prove that the plaintiff agreed to

the premises subject to a certain mortgage, which
take
formed the whole consideration of the conveyance,

1
evidence was held to have been properly rejected.
In cases where there
no consideration named
is
this
in the
damages must be obtained from other

2
and where, as must
deed, the measure of
evidence as to the value of the land

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
Whatquestion of damages.
some way
deed or in some
It was
as easy to except the claim on the
outstanding mortgage from the covenant of warranty as from the covenant against incumbrances, if such
was the understanding of the parties.
But nothing is clearer than that the
in
in the
other written instrument.
ever evidence therefore tended to
parol evidence which was offered to

control the covenant in the deed,
show the consideration
was inadmissible."
actually paid
for the premises before granted to

Merrill, or to show that no consider-
Per Metcalf, J.
point that parol evidence is inadmissible to prove that a certain
The
was paid for them, for the reait was known and understood by the parties that they were
not to pass by the conveyance, was
competent and admissible on the
incumbrance not expressly excepted

from the operation of the covenants,
was agreed to be so considered by the
question of damages although inadmissible upon the issue raised by the
Porter
plea of omnia performant. If the

jury should find that nothing was
(Me.) 177
Collingwood v. Irwin, 3 Watts, (Pa.) 309
Suydam v.
Jones, 10 Wendell, (N. Y.) 184. See
ation
son that
paid for the Merrill place, although

it is
clearly included within the deed,
but that both parties knew and understood
it
to
sold, that in
have been previously

was included in
fact, it
the deed by mistake or

through inadvertence, the plaintiff would be
entitled to nominal
Per Fowler,
1
damages only."
J.
Eastabrook
'
agreed
22
v. Noyes, 2 Greenleaf, (Me.)

Donnell v. Thompson, 1 Fair-
field,
infra,
Chapter IV., on the covenant
against incumbrances.
2
Smith
128.
the
v.
It will
Strong, 14 Pickering,
be remembered that
remedy upon
the ancient war-
ranty was the recovery of another

feud of equal value, and it was in
this that when a
pecuniary recompense was substituted, the
analogy to
Smith, 6 Gray,
(Mass.) 578. "If, as the defendant
offered to prove at the
trial, the
plaintiff
parties at the time, was also decided

in Townsend v. Weld, 8 Mass. 146 ;
v.
to take the
ises subject to said
prem-
mortgage,' then
that agreement should have
appeared
consideration
named
in the
deed was
taken to be primd facie evidence

of the value of the land to the purchaser.
THE COVENANT FOR
70
SEIZIN.
often be the case, the consideration does not
from the grantee
move
directly
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
that which he actually parted with in order to
must be sought from all
acquire the title of the grantor
the circumstances of the case, and the damages measured
grantee
accordingly.
An
will
excellent illustration of this
be found
in
Byrnes
Gray, (Mass.) 518.
v.
"The
Rich, 5
rule of
damages," said Shaw, Ch. J., who delivered the opinion of the Court, " is
perfectly well settled in this Com-
monwealth
it
is
the amount of the
consideration actually paid by the

grantee to the grantor with interest
from the time of the payment.

say paid
or,
We
to the grantcommon case.
by the grantee
which
is
the most
But there may be anomalous cases,

especially where it is not a direct nebetween the parties to the
deed but where in a negotiation
between two, there is a stipulation
by one with the other, upon a certain consideration, to execute a deed
gotiation
;
and convey certain land to a third

person, and a deed is given accordSuch appears by the eviingly.
dence to have been the present case.
The
agreed to receive of
one Leighton, a certain lot of land
plaintiff
in Melrose, in full satisfaction
and
plaintiff in
satisfaction of his debt.
Then what was
the actual considera-
between the plaintiff and defendant? It is very clear that the

consideration expressed in the deed
is no criterion
the actual consideration may be always inquired into by
tion as
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 plaintiff agreed to surrender and release
Leighton as the consideration to
be by him paid for the land. That
may have been a security of little
to
no evidence of its value was

and besides to that part of
the transaction, the defendant was a
value
given
It seems therefore to be a
stranger.
case to which the ordinary general
rule cannot apply, and which must
be determined according to its particular circumstances upon the general principle applicable to breaches
of contracts
the party shall recover
discharge of a debt ; Leighton then

agreed with the defendant to purchase of him the same land, and then
a sum in damages, which will be a

compensation for his loss. The case
requested the defendant to make the

deed direct to the plaintiff, with
siderably so in
warranty
he executed
it
according-
upon a large nominal consideration expressed, and handed it to

ly,
Leighton,
who
delivered
it
to
the
is
very similar in principle, and con-
Smith
v.
its
facts,
to that
Strong, 14 Pick.
128.
of
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.
7*
the grantee, instead of abandoning his purchase, has elected to buy in the paramount title, his damaare, within the limit of the original consideration be-
So where
ges
tween his covenantor and himself, measured by the amount
of the consideration which passed from him to the holder
Where such consideration has

of such paramount title.
been the payment of a certain sum, the damages are limited
amount
to that
was a
tion
1
;
certain
but where in a recent case the considera-
sum
of
holder of the paramount
broken covenant for
money and
title,
it
the assignment to the

of the right of action on the
was held
that the
damages
must be measured by the original consideration-money between the covenantor and covenantee, there being no evidence
show
to
seizin,
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, will be

It appears
the measure of damages.
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
upon which the conveyance
part
operated to give title to the grantee, then the value of the part, the
title
to
which
failed,
with interest,
be taken as the measure of damSee the case of Lawless v.

ages."
will
Collier, 19 Missouri, 480, referred to
infra.
1
Spring
Dimmick
v.
Burnet, 10 Ohio, 334;

Henry, 8 Casey, (32 Penn.
142; Foote
Cox
v.
Chase, 22 Maine, 562.

Lockwood, 10 Wendell,
v.
v.
State R.) 19. In Anderson v. Knox,

20 Alabama, 101, and Dickson v.
Desire, 23 Missouri, 167, it was held
burden of proof lay upon the

show not only the amount
paid, but that such payment was the
that the
plaintiff to
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

be proved. It is, however, no
to
bar to the
plaintiff's
he has refused
mount
title,
recovery that
buy in the parawhere in Miller v.
to
for
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
See as to this
held the plea bad.

infra.
2
480.
Lawless
Collier
v.
Collier,
had
19 Missouri,
for the considera-
THE COVENANT FOR
SEIZIN.
hence be seen that the rule that the measure of

damages upon a breach of the covenant for seizin is the
It will
tion of $2,668 sold certain land to
but partially to secure Gamble, and
Gamble with a covenant for seizin.

Gamble subsequently conveyed this
thereby destroy his recourse against
and afterwards discov-
Mills
title to
ered a paramount title in the heirs

of Stoddard which was then held by
one Lawless and which he purchased
sum of $1,000 and
for the
to
signment
Lawless of
his
the
as-
(Gam-
of action against Cottier.

By means of such purchase, Gamble was enabled to perfect the title
which he had conveyed to Mills, and
ble's) right
suit
was then brought against Collier

this covenant for seizin in the
upon
Gamble to the use of LawThe Court below held that the

measure of damages was the sum
to Lawless for the
paid by Gamble
name
of
less.
he thus acquired with inter
estate
est,
but this instruction was reversed
on writ of
liar
"
error.
Under
the pecu-
circumstances of this case," said

who delivered the opin-
Collier for his

purchase-money.
acts of Gamble,
was by
to
It
subsequent
conveyance, that his
Lawless'
title was
What
perfected.
had Gamble then to adopt a
course of conduct which would have
vendee's
right
impaired the recourse of Lawless'

trustee on the covenants which had
been assigned
of Virginia
to
him
for the benefit
In so doing
he would have injured the plaintiff',
and have destroyed a part of the
consideration he had given to LawLawless.
less for his interest in the
claim.
Would
have been
liable
Stoddard
Gamble
then
to Virginia
Law-
not
less for the destruction
of the right
which he had assigned for her beneThis is the consequence flowing

from holding that the $1,000 paid by
Gamble to Lawless should be the
fit.
to
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,
the just measure ? Was it

by the payment of the sum of $1,000
only, that Gamble was enabled to
considerations of justice to himself

and to those to whom he was under
Scott, J.,
"
what
is
the measure of dama-
ges ?
chase
Can
it
be said that the pur-
ion,
money paid by Gamble
Lawless
is
secure the
or possession of his
title
vendee, and thereby prevent a recourse against him on his covenant ?
Such an
assertion
is
not warranted
We
cannot say that

by the facts.
Lawless, in making a sale of his land,
did not regard the covenants of Collier as
worth the
were given
sum which they
to secure.
He
did not
Gamble the identical land

Gamble had conveyed to Mills.
convey
that
full
to
His conveyance of
itself
did operate
whilst performing
an act dictated by
Is it not
obligations to indemnify.
just, that Collier should refund
more
money he has received from

Gamble, the consideration of which
the
has entirely failed, than that Gamble

should be placed in the condition of
enriching himself at the expense of
No one can say that,
another ?
without the assignment of the covenants in Collier's deeds, Gamble ever
would have been enabled to obtain
Lawless* interest
in
the Stoddard
THE COVENANT FOR
SEIZIN.
consideration-money, with interest, must in many cases be

to the question of increased value of
applied only relatively
the land ; in other words the consideration-money, with inthe extent to
terest, is
which damages can, under any
cumstances, be recovered upon
cir-
this covenant.
arises in cases where the failquestion of importance

ure of title has caused a technical breach of the covenant
have not yet visited upon

Under these circum-
for seizin, while its consequences
loss of the land.
the purchaser
any
would be obviously inequitable that the latter
should be entitled to have his damages measured by the
consideration-money, and while receiving them, still retain
stances,
it
the land for whose loss they

lent.
Thus,
the possession of the purchaser
if
We
claim.
know
not
how
covenants were estimated.

is
were intended as an equiva-
known by which
those
No
if
rule
of,
the grantee has been turned out

and lost the land, there is no
question but that the said consideration and interest is the true amount
their value can
be reduced below the sums they were
given to secure." It should be observed that where in the above

opinion the Court speak of the as-
but
signment by Gamble of the covenants
if
in Collier's deeds,
it is
meant the
has remained
he remains
if
the land and

it
evicted,
as-
he
shall
eration
in
possession of
has not .been ousted or
an important question,
recover his said consid-
is
money and
interest, while
he
the
This
the
'
signment of the right of action upon

of the right to
those covenants
use Gamble'sjpame in a suit against
Collier
for nie
covenant for
seizin,
being held in America to be broken

as soon as made, is of course incapaThis will
ble of direct assignment.
appear from the previous report of

the case in 10 Missouri, (Gamble v.
Collier,) which should be read in
connection with the above opinion.

1
It was remarked in Dane's
Abridgment, (Vol.
respect to the
4, p.
340,)
" In
amount of damages,
7
so
retains
land."
is
which has been suggested

some of
the Northern States, that the covedifficulty
as the cause of holding, in
nant for seizin is not broken at all

if an actual seizin had
passed to
See supra, p. 23.
the purchaser.
But, as has been remarked, the doctrine 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.
THE COVENANT FOR
SEIZIN.
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 damaundisturbed until
it
ges can be recovered.
lapse of time has not been such as

to have healed the defect of title, it would be at least ques-
Where, however, the
tionable
lowed,
whether, if only nominal damages were then alanother action could be sustained upon the same
covenant, on a subsequent occasion,
when
the actual
damage
had happened.
This would depend
to the covenant.
1
Wilson
v.
If,
Forbes,
entirely upon the construction given

as is generally held on this side of the
Devereux,
Smith, 2 J. B. Moore,
162.
The
(N. Car.) 30, approved in Cowan u.

Silliman, 4 Id. 47; Garfield v. Wil-
point seems to have directly arisen

in Maine, in Donnell v. Thompson, 1
Somer-
(Me.) 174, where Mellen,

" The action on
remarked
the covenant of freedom from incumbrance was prematurely brought, and
nothing but nominal damages were
liams, 2
Vermont, 328, 329
Hamilton, 4 Wheaton, 229.

2 The
general principles of the
ville v.
law of estoppel, as applied to judgments, were clearly stated by Lord

Ellenborough in Outram v. Morewood, 3 East, 346 and see Church
v. Leavenworth, 4 Day, (Conn.) 274;
;
Ryan
v.
v.
At water,
Turnpike
Markham
1259, the
judgment
Id.
431;
Co., 1 Connect.
Canaan
1.
In
Middleton, 2 Strange,
defendant had suffered
v.
to
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.
stances of the
Under
the circum-
case, the
Court or-
dered a new writ of inquiry on payment of costs but as Lord Kenyon

;
remarked of
this case, in
Seddon
v.
Tutor, 6 Term, 609, in another action the plaintiff would have been
had
stood; and the same remark was
made by Park, J., in Godson v.
barred by that verdict,
if
it
Fairfield,
Ch.
J.,
recovered.
Still it
is
admitted that
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
was enunder the circumstances, to recover upon his covenant of warranty,

after events had happened which
would entitle him to actual damages
and the decision was based upon the
different character of the two covein that case that the plaintiff
titled,
nants.
The
plaintiff's
proper course,
under circumstances where he perceives 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 subsequent recovery ; Harris v. Newell, 8
Mass. 263.
THE COVENANT FOR

Atlantic, the covenant
broken,
if at
therefore,
"
all,
as
for
seizin
soon as
single, entire
it
SEIZIN.
to
is
is-
be
made,
and perfect
Jo
considered as
and
its
in the first
breach,
instance,"
follows that there can be but one action maintained
it
upon
a recovery in which, even for nominal damages, can be

Where, however,
pleaded in bar of any subsequent action.
as in England, the covenant is treated as a continuing one,
it,
a recovery might, it is conceived, be had upon a different

assignment of the breach, as often as the damage was sus2
by the purchaser.
tained
If,
therefore, in a case
the possession
for seizin,
to this
doctrine
see
the loss of the land
zn/ra,
see also note to p. 21.

2
Thus, in Halsey v. Reed, 9 Paige's
Ch. R. 446, one who purchased land

subject to a mortgage, by a clause in
the deed assumed as a part of the
payment of the
On
principal and interest due on it.
this covenant the vendor sued and
the
recovered but nominal damages, as

no evidence was given of his having
to pay anything on
mortgage since the sale. He
afterwards was compelled to pay interest on it, and having again sought
been compelled
the
to
render the estate of
liable,
it
on a covenant
any
when
Chapter VIII., on the extent to which

covenants for title run with the land
consideration
retains
to be considered as settled that a

recovery of
at
that
time
will
a
be
bar
to
fudamages
ture action brought
As
to sue
still
it is
but nominal
where the purchaser
and yet thinks proper
his
vendor
was objected that the
mer judgment was an

Chancellor held that
estoppel.
for-
The
the agreement
had been intended as an absolute
and unconditional promise to pay to
the vendor the principal and interest
if
may
occur,
it
on the mortgage, so as to enable the

and recover upon that
promise in his own name, even although he had not been compelled or
latter to sue
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 nominal.
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 payment on that account.
See also
Ranelagh v. Hayes, 1 Vernon, 189,
and the cases cited infra, in Chapter
IV.
THE COVENANT FOR

would seem
to follow that
if,
on the one hand, the damages
by the consideration-money, some pro-
are to be measured
made by which, on
vision should be
SEIZIN.
their
payment by the
covenantor, the estate which he sold should be, such as

revested in him.
There would seem

equity would
that
it is,
be
to
doubt, on general principles,

the covenantee, who had thus
little
restrain
recovered back the consideration-money, from setting up, as

against his covenantor, that title which, by his action on the
2
covenant, he had asserted to be defective, and would proba8
and it has been sugbly decree a reconveyance by him ;
gested that the recovery of damages upon the covenant

for seizin will, of itself, operate at law to revest the title in
the covenantor.
"
has, moreover, been
It
As we understand
the law,"
said Hutchinson, Ch. J., in Catlin v.

" it isdeHurlburt, 3 Vermont, 409,
guarding the rights of the

a case that may arise.
ficient in
in
grantor
The
grantor may have honestly purchased the premises and taken posafter his sale
his grantee
taken possession.
The
first
grant proves defective, but he
in whom is the legal title does not in-
session;
may have
These possessions continued
terfere.
soon form a good title. If there

a recovery on the covenant for
will
is
seizin, these possessions should
the benefit of him of
covery
is
legislation.
might provide
for
the re-
This presents a
had.
subject for
whom
go
fit
statute
that the re-
covery and collection should revest

all
right
or from
lection
tice in
within
2
and possession in the grantthis recovery and colis had.

This would do jusall cases that should come
whom
of Utica
v.
Mersereau, 8
Barbour's Ch. (N. Y.) 571.
two
M'Kinney v. Watts, 3 A. K.
Marsh. (Ken.) 268.
4 Parker v.
Brown, 15 N. Hamp.
" If the
188.
grantee," said Parker,
Ch. J., in delivering the opinion of
the Court, " recovers damages for
the breach of the covenants of seizin,
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.
may
We see not why the grantor
not again enter,
if
he chooses,
as against the grantee.

recovery
in trespass or trover, with satisfaction, vests the
property in the party
whom
the damages are as-
against
We
are not aware of anything in the nature of the feudal investiture, or in the principles which
sessed.
regulate the title to land at the present time, that should require a different rule in relation to real estate.
The record of
it."
Bank
decided in
the recovery will fur-
good an estoppel as that

which arises from a disclaimer. Hamnish
as
THE COVENANT FOR
SEIZIN.
cases in Massachusetts, that a conveyance
77
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
must necessarily have
decisions which
upon the ground that the title had, by the

damages, become revested in the cove-
proceeded
recovery of the
nantor.
ilton
v.
4 N.
Elliott,
The defendants may
Hamp.
re-enter
if
782.
they
think proper, and will hold, under
former possessions, against all

persons who cannot show a better
their
So
right."
very recent case

Simpson, 36 N. Hamp.
in the
of Johnson
v.
96, where judgment had already

passed against the defendant and
the only question was of damages,
the Court
seemed
be of opinion
that had not the defendant been deto
would not have been sub-
faulted he
any damages, (on the

ground that the deed had conveyed
to
jected
a sufficient
and
then
title
said,
to the plaintiff,)
" It
may be a
whether the
plaintiff by
taking judgment for damages, may
not endanger his title to the prem-
question
ises."
l
Porter
son
v.
v.
Hill, 9
Sumner,
Mass. 36
Id. 150.
Stin-
"It would
certainly be manifestly against the

principles of justice," said the Court
" that a
in the latter
case,
grantee
should recover either his purchaseor the value of the land,
money
against the grantor,
breach
upon an alleged
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

tive.
has
It
(Porter
v.
lately
Hill,) that
be inoperabeen decided
to
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

but that a judgment for the
land
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 judgThis case depends on the
ment.
same
principle."
Such
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 Fitch v. Baldwin, 17

Johnson, 164, and in the very recent
case of Blanchard v. Ellis, 1 Gray,
" The
(Mass.) 202, the Court said,
question arises, how will the defendants, 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 claiming under him. Porter v. Hill, 9
Mass. 34."
that a
itself
It
would seem, however,
mere recovery should not by

be allowed to have such an
unaccompanied by any evidence of satisfaction Foss v. Stick-
effect,
ney, 5 Greenleaf, 392.
THE COVENANT FOR
78
however,
If,
it
is
to be
SEIZIN.
considered as at
all
doubtful
whether, by the recovery of the consideration-money, the

estate would,
whom
from
by mere operation of law, revert to him

the damages had been recovered, the Court
might, in the exercise of
its
discretion, stay the execution,
reserve the actual entry of the
or
a re-
until
judgment
It would,
conveyance were made to him.
perhaps, be a
matter of prudence for the purchaser to offer such a recon2
veyance before, or at the time of the trial, although it
would be no bar
In cases where the deed has, in
addition to the covenant for seizin on
which
been brought, also contained 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 covenant until the plaintiff should have
executed to the defendant a quitclaim deed of the premises or a resuit has
lease of the latter covenants.

v.
Catlin
Hurlbut, 3 Vermont, 409
Burnham,
v.
Williams,
Blake
(Verm.)
437.
2
Alexander
275
v.
Schriebner, 13 Mis-
2 Sugd. on Vendors, 358.

In the recent rival treatise on Vensouri,
dors and Purchasers, however, the

author says, " Sir E. Sugden seems
to consider that
had not done
to his action that he
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 auis cited for this

proposition,
which appears to be untenable ; the
thority
extent of the damnification being the

dillrrence between what the cove-
nantee has, and what he ought to

have." DartonVendors,(2ded.)416.
In
the
first
edition,
so.
however, the
"
But
no authority is cited for this proposiat any rate if an action were
tion
criticism
was thus expressed
brought before eviction, unaccompanied by an offer to reconvey, it seems

that the entire value could not be
Dart on Vendors,
recovered."
(1st
ed.) 374.
3
Bender
437, note
329
Lot
(N. J.)
Fromberger, 4 Dallas,
v.
Ives
299
v.
Miles, 5 Watts,
Thomas, Pennington,
v.
;
Lawless
Exrs., 19 Missouri, 485.
v.
Collier's
Bottorf
v.
Smith, 7 Indiana, 673, is not at variance 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 (under 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
that the
grantor
might have been seized of a lesser
estate and that there was no offer to
plaintiff objected
reconvey, which objections the Court

held to be well taken, " because if
plaintiff receives no purchasemoney, he would be entitled to a
reconveyance of whatever estate he
the
THE COVENANT FOR
SEIZIN.
79
There
is, moreover, an exception to the principle that the

of recovering damages upon the broken covenant is
to revest the title in the covenantor,
arising in cases where
effect
the covenantee has bought in the outstanding title for an

amount exceeding the original consideration paid
him
by
to the covenantor.
might have conveyed."
such cases
in
Apart from
well settled that in an ac-
this, it is
purchase-money, mere
is no defence to its
for the
tion
For
absence of
title
see infra, Chapter XIII.,

on the purchaser's right to detain
the purchase-money after the execu-
payment
first
session, yet where the failure of title

is so
complete, and the loss so morally certain to happen, that a Court
might feel authorized in directing
the jury to assess the damages by the
consideration-money." Upon subsequent consideration, the opinion was
formed that the
tion of the deed.
In the
has already been
it
edition of this
work
it
was said, " If nothing had'Jbeen paid,

and no pecuniary loss had been suffered, and the possession had not
been disturbed, and the purchaser
did not offer to reconvey,
lieved that nominal
be-
it is
first
passage above
quoted did not correctly express the
law, and
ond
it
was omitted
Missouri came
v.
up
again, (Lawless
19
Missouri, 480, see

p. 72,) where the second of
Gamble,
supra
in the sec-
Since then the case in
edition.
The
the passages above quoted was referred to, and the case decided ac-
therefore, that the

covenant for seizin is broken, if at
It is believed that the

cordingly.
text as now offered contains the true
would
in general
technical
be allowed.
rule,
once and completely,
at
all,
damages only
is,
as
statement of the law, and that
if
the
more
than a technical one;" Rawle on
breach of the covenant has occurred,

the plaintiff has a right to recover
Covenants for
Title, (1st ed.) p. 83,

(citing the case of Collier v. Gamble,
damages measured by the consideration money, the effect of whose re-
10 Missouri, 472, where it had been

held that " the reasonable rule was
ceipt will be, subject to the exceptions hereafter to be noticed, to revest the title such as it is in the
the
respects
to
recover
until
the
damages,
little
nominal damages only

conveyed was de-
estate
feated, or the right to defeat
it
had
covenantor.
It
may be remarked
the case of Oberhizer
v.
of
McCollister
been extinguished,") and this

passage
was cited in the recent case of Ober-
above referred
hizer
adopted the doctrine held in England that the covenant for seizin is
and
McCollister, 10 Indiana, 44,

held to be " obviously
just."
The
treatise then
v.
" Cases
went on to say
of course occur in which
the purchaser may have
:
may
although
paid nothing to buy in the paramount title and may still be in pos-
to,
that the
Court of Indiana
seems
Supreme
to
have
not broken as soon as made, but that

"
" a
is
continuing one
the breach
until actual
supra, p.
VIII.
damage
and
75,
suffered.
infra,
See
Chapter
80
THE COVENANT FOR
shown
damages are never allowed to exceed such

and if the effect of the recovery of damages
that the
consideration,
were
SEIZIN.
to vest the
whole
title in
the covenantor, the covenantee
would be 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

be the subject of future inquiry), which hold that where
a conveyance is made, containing a covenant of warranty,
will
and the vendor afterwards acquires a
title
which
is
within
the scope of that covenant, such after-acquired title immediately enures to the purchaser or those claiming under him
In a subseestoppel.
is
attempted to be shown that the acquisi-
by the operation of the doctrine of

l
quent chapter
it
by the vendor, of such a subsequent title, should rather

give the purchaser a right to come into equity for its conveyance to him, and that the doctrine that it at once enures
tion,
him by estoppel is productive sometimes of hardship

himself, and often of hardship, under our registry acts,
subsequent purchasers from his vendor, without notice.
to
The
to
to
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 covenant for seizin may be broken, yet if the vendor have subsequently acquired the outstanding title, which enures by
estoppel to the purchaser by virtue of the covenant of
warranty, these circumstances may be given in evidence in

mitigation of damages, whose amount will then be but
nominal.
See m/ra, Chapter IX., on the

operation of covenants for title by
way of estoppel or rebutter.
1
260
Baxter
;
Bradbury, 20 Maine,
(see the remarks on this case,
v.
in/ret, p.
81)
Missouri, 848.
Reese v. Smith, 12
This rule has some-
times been sought to be carried too

far, and to entitle the defendant to a
verdict.
Thus
in
McCarty
v.
Leg-
THE COVENANT FOR

Such a course of
the
purchaser
decision
subsequently
81
SEIZIN.
obviously fastens upon the

acquired title nolens volens,
the right of election whether to accept
of
depriving him
back upon his covenants (of course in the latit, or to fall

ter case, restoring to the vendor the title he has already
1
in other words,
received from him ) ;
same effect as an injunction restraining
2
ing at law upon the covenants.
From
has virtually the
it
him from proceed-
an easy transition to hold that even although the after-acquired title may not, from peculiar circumstances, absolutely pass from the vendor and enure to
the purchaser under the operation of estoppel as thus applied,
this, it is
at any time before recovery and payment

yet if the vendor,
of damages upon the covenant, can procure the outstanding
title
and tender
to receive
it,
to the purchaser, equity will
it
and enjoin him from obtaining
the defendgett, 3 Hill, (N. Y.) 134,

ant having acquired title since the
conveyance, it was ruled at the trial
that this subsequently acquired title
was a bar to the plaintiff's recovery
on
his
covenant for
seizin,
and a
verdict was therefore ordered for the
was held by the

however these
facts might have been properly admissible in mitigation of damages,
still that the purchaser had a right
to recover at least nominal damages,
defendant
but
Supreme Court
it
that
was technically
since the covenant
broken at the time of

1
See supra, p. 76.
2
Thus
in
Maine, 262,
plaintiff,
Baxter
it
that
suit brought.
v.
Bradbury, 20
was argued for the

the title by estoppel
could not enure to his benefit without his consent
that
he was not
but
compelled to receive the title
the Court held that, "by taking a
;
general covenant
of warranty, he
his
not only assented
compel him
8
damages.
to,
and made available
but secured
to himself all
the legal consequences resulting from

that covenant. Having therefore un-
der his deed, before the commence-
ment of the
action,
which
the
acquired
was the object of

both covenants to assure, he could
be entitled to but nominal damages."
3 Thus in Reese v.
Smith, 12 Missouri, 344, the purchaser who had reseizin
it
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 devisee.
his
The
widow, who was

latter
in
bought
the outstanding title, whose existence

had caused the breach of the cove-
nant for seizin, and tendered

the purchaser,
it,
because
his
who
it
to
refused to accept
damages would
be,
ow-
THE COVENANT FOR
SEIZIN.
contrary doctrine has, however, been enforced in New

York, where it has been held upon great apparent sounding to the depreciation of the property, greater than the value of the
land.
(The after-acquired title did

should be observed, actually
pass to the purchaser, because the
Court held that the widow was not
not,
it
bound by the estoppel, she having

been under coverture at the time of
joining with the husband in the
not affect his legal right

benefits of all the covenants.
" The bill of the
complainant has
two objects in view
quired
title,
the Court below decreed
accordingly, and this was affirmed on

" It
appeal to the Supreme Court.
a mistake to suppose," said Napton, J., who delivered the opinion of

is
that
Court,
"that the
suit at
law
1st.
To compel
the defendant to receive a conveyance ; and 2d. To prevent the de-
fendant, after thus recovering the

title,
from collecting
his
judgment
at
law.
bill having been filed

covenant.)
to enjoin the judgment and compel
the purchaser to accept the after-ac-
to the
will
" If the Court can

compel the de-
fendant to receive the
no argument
to
title, it
needs
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 purchasemoney. Had the title been acquired
by Smith in his lifetime, there is no
regarded as a rescission or disaffirmance of the contract by Reese.

Where a vendee has not received a
doubt but that title would have passed from Smith to his vendee, Reese,
and that if this had taken place before the trial of the action on the
deed, and sues upon the contract by

which he is entitled to one, for the
covenant, it would have restricted

the plaintiff to nominal damages. It
recovery of his purchase-money, such

suit is a disaffirmance of the contract,
is
upon the covenant of
and
it is
seizin, is to
be
in such cases that the au-
thority of a court of equity to interBut the

fere is rarely exercised.
law in this case was upon a

covenant in the conveyance, and a
suit at
recovery in that suit would not prevent the covenantee from suing the
next day upon any other cove-
nant in the same deed.

titled to the benefit
of
all
He
is
en-
the cove-
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 nominants,
nal
damages upon another, yet
this
said that a court of equity cannot compel a covenantee to accept

performance in lieu of damages,
after
the
covenantee
to take the latter.
has
elected
But a court of
equity in exercising such a power,

would only be following the law, and
if the covenantor acquires his tide
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 conveyances would do without the intervention of
any court ?
Would
a court
of equity under such circumstances

allow the covenantee to pocket his
damages and also retain the land ?
And
can
it
make any
difference, in
THE COVENANT FOR
83
SEIZIN.
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 representative, 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
whether the vendee shall be compelled to complete a

contract and take a conveyance for
land, which he agreed to take when
land was worth much more than it is
now. The contract has been made
the question
is
not,
and conveyance accepted, and possession taken and enjoyed without

disturbance.
The vendee, having
his deed, with
covenants of general
warranty and
Court of Appeals, in favor of the expower by a court of

chancery. Cotton had conveyed the
ercise of such a
Ward and put him in possesand having obtained a judgment against him for a part of the
title
to
sion,
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
whereby
perpetuated,
compelled
take
to
Ward was
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
have seen,
not
is
at
so.
law,
Even
this,
we
in exec-
utory contracts, the authorities are

numerous where the vendee has
assurance, could undoubtedly

compel the vendor to convey any
been compelled to give up damages

recovered upon a rescission of the
contract in a suit at law, and accept
subsequently acquired title to him.

He may sue on the covenant of
usually
seizin,
and
for
fur-
ther
and recover damages, but, if

he prefers, he may still resort to his
covenant for further assurance or
seizin
general warranty. The remedy is

then reciprocal. Had the property
vendee could unquestionably have forced the title from

the vendor, had the vendor acquired
risen in value the
any subsequent
"
The
to his
v.
Ward,
lieu thereof.
This
is
done, and indeed always

done, where time is not of the essence of the contract, and the lapse
of time has not arisen from any default of the vendor, and the situation
and value of the property has not
And if this
changed.
be done in executory contracts,
there is much more reason why the
materially
will
power should be exercised where the
conveyance.
case of Cotton
performance in
Monroe, 312, is not unlike the present, and is a decisive expression of

opinion, on the part of the Kentucky
contract has been executed."
From
this
judgment, however, one

members of the Court
of the three
"
dissented.
The defendant,"
said
THE COVENANT FOR
84.
SEIZIN.
has no right to deprive him.

Thus in Tucker v. Clarke, 1
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
compel him to accept this title, it was dismissed by Sand" The

ford, Vice-Chan., who said:
complainants do not ask
the Court to compel a specific performance of an open
to
agreement.
They ask to compel the defendant to give up
his claims under a deed executed seven years before the bill
was
The executed
filed.
were seized of the

"
he,
having recovered a
at law for a breach of the
contract was, that the complainants

lots, and if they were not, that they
judgment
covenant
of seizin, the regularity or propriety

of those proceedings cannot be reIf the
vised by a bill in equity.
damages recovered are greater than

the party was entitled to, that alone
There are
is no ground for relief.
no circumstances stated in the bill,
compelled to make further assurance

and notwithstanding he had, pending his suit in chancery, recovered
judgment at law, he still continued
;
the suit until

the
mean
sufficient
to the
warrant the interference of a court
Ward
which, in
to
appealed to the Chancellor, asking either that the contract should be

rescinded, or that Cotton should be
first
opinion, are
my
of equity.
If relief is granted in
then in every case of the
recovery of damages for a breach of
the covenant of seizin, the vendor
this case,
at his option
may
procure a
title
pay the damages, according
or
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
This
to him.
carefully stated
in the decision, in which the Chief
" Ward had
Justice says
himself
gave
is
it
was
In
had appealed
and asked that
finally heard.
time, Cotton
same
tribunal,
might be compelled to accept

the further assurance which Ward,
in his bill, had asked that Cotton
should be compelled to make. Thus
by the concurrent act of both parties, the Court was put in the possession of the cause, and required to
exert its jurisdiction and whatever
room there might be to doubt, as to the
;
relief which ought to be granted in a

case where Cotton alone was the com-
plainant^
which
in
the actual attitude in
is presented, there
certainly can be no doubt that the
Court should decree a specific per-
this
case
formance by compelling Cotton to

make, and Ward to accept of further
assurance."
i
2 Sandford's Ch. R. (N. Y.) 92.
THE COVENANT FOR
85
SEIZIN.
This is sought to
should repay the consideration-money.
into
a
contract
turned
he reconsidered and
hy which, if it
should ever turn out that they were not seized, they might
either repay the consideration or procure a good title to he
It would have heen a little more plausihle if
there were a semblance of mutuality ahout it, so that the defendants might have coerced them to procure a good title on
conveyed.
But there is no pretence that the

discovering the defect.
The complainants' ground
defendant had any such equity.
amounts to this if the lots had become worth two or three
:
times the price which the defendant paid for them, then
the defendthey could set up the outstanding title, deprive
him upon the covenants in

him
the consideration paid.
to
would
restore
his deed, which
If, on the other hand, the lots should depreciate very much,
ant of his speculation, and throw
complainants would procure the outstanding title for

There is no equity
him, and retain the price which he paid.
or fairness in this, and the Court cannot grant the relief
the.
prayed by the bill, without first making such a contract for

a contract which they never did make, and I
the parties
;
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
It
State.
seems impossible to controvert the soundness of
Bingham
stock, 513.
one
same
v.
Weiderwcix,
The
facts
Com-
were these:
Van Buren
agreed with a corpurchase of them a tract
tioned in the aforesaid
this
articles
of
agreement," covenanting that they

were the true and lawful owners in
of land for $850 in cash, subject to
right of the corporation, and were

seized of a perfect estate in fee sim-
two mortgages amounting together to
pie,
poradon
to
On the appointed day, the

$3,000.
President and certain of the Direc-
and had good right to convey.

This deed was inoperative to pass the
title of the corporation, which was
tors executed a
afterwards dissolved.
ises,
went
deed for the prem" in consideration

of $3,850, and
subject to the two mortgages

8
men-
Van Buren
into possession, but not
paying
the mortgages, they were foreclosed
THE COVENANT FOR
86
SEIZIN.
reasoning, and in Massachusetts, where the doctrine of estoppel already referred to has been carried to its greatest extent,
and
in 1843
sold,
when
his adminis-
sued the grantors on their

covenant for seizin. The latter filed
trators
bill for
this suit,
a perpetual injunction of
on the ground that at the
time of the conveyance, all the parunderstood that it was sufficient
ties
to pass the
title,
and
that the
prem-
ises had been sold by reason of the

mere neglect of Van Buren to pay
demurrer to the
the mortgages.
bill was overruled by the Vice-Chancellor, but the Court of Appeals reversed this de6ision, and Jewett, Ch.
said " The bill concedes that
J., in
recover of his grantors for the breach

of their covenant of seizen contained
deed
in their
Van
to him.
Buren's
right of action for the breach of that

covenant was perfect the instant the
deed was executed.

Wilson, 4 Johns.
Hamilton
72
Leggett, 3 Hill, 134.
v.
McCarty
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 affect the
com-
plainant's rights or liabilities. If Van

Buren had paid the mortgages, and
then he, or his administrator after his
Court,
the title to the lands was not con-
death, had brought an action for the

breach of the covenant of seizin, it
veyed to Van Buren, although he, as

well as his grantors, supposed it was,
by the deed executed to him. The
would not have been a good ground

in equity for relief against their cove-
complainants and the adminstrator

of Van Buren have since* discov-
corporation before its

convey the title to him.
Van
Buren's grantors were

never seized of any estate in the
ered that
lands
that the turnpike corporation,
at the time of executing the deed,

was seized of these lands, and so con-
tinued, until
How
its
then can
dissolution in 1840.
it
Buren lost the land
be said that
or the
title
Van
thereto
(which he never had), by neglecting

pay the mortgage ? If he had
to
paid
it,
him or
it
would not have invested
grantors with the title.

Neither lost the land, or title to it,
his
by the foreclosure and sale. Payment of the mortgage by Van Buron

in his lifetime, or by his administrator 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
nant, that he could have compelled the
the right to rely
on
dissolution to
He would
have
his covenant,
take
his
kept,
when they executed
and
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
may compel
Equity
the deed.
parties to exe-
cute their agreements, but has no
make agreements
to
for
them,
or to substitute one for another.
And,
power
appears from the bill that

the corporation even did not lose the
besides,
it
land or
and
had
its
sale
title
by the foreclosure
under the mortgages.
lost its title
years before, in 1840, by

tion.
At
cause, the
that
title
It
nearly or quite three

its
dissolu-
and for that

reverted back to its
time,
original grantor or his
tin re
1
hc-irs,
THE COVENANT FOR
SEIZIN.
87
has been very recently held that a grantor has no right

thus to fasten upon his purchaser an after-acquired title.
if a
"Supposing it to be well settled," said the Court, "that
it
new
corne to the grantor before the eviction of his

would enure to the grantee, and not deciding, be-
title
grantee it
cause the case does not require
after eviction
elect
might
whether the grantee even

to take such new title and the
it,
of this
grantor be estopped to deny it, we place the decision
land
has
of
where
a
deed
that
case on this precise ground,
been made with covenants of warranty, and the grantee has
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
charter or
its
any other statute to avert that consequence upon its dissolution. Angel! & Ames on Corp. 128, 129
2 Kent's Com. 305.
in
"
At
all
events, the
bill
shows the
dissolution of the corporation at the

time mentioned, without showing that
the
title to
their lands
such manner as that
was saved
in
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 mortgages were

bound to receive, or would have re-
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.)
course the same reasoning
applies to the covenant for seizin.
"
do not seek," said Thomas, J.,
199.
Of
We
" for a
opinion,
better illustration of the soundness of
who delivered the
this principle
than
is
furnished by the
The
ceived payment of the mortgages, or

either of them, prior to the time of
facts of this case.
the dissolution of the corporation, or

prior to the time of the death of
was $5,520, was under attachment in

a suit in which judgment had been
Van Buren
recovered for more than
or that he at any time
land, for
which
the consideration stated in the deed
fifty
thou-
88
THE COVENANT FOR

It is well settled that while
SEIZIN.
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
had no
plaintiff wholly evicted.

estate or interest left.
He
The
covenant against incumbrances being personal, and not running with

the land, he had nothing which could
pass
his
by deed.
He
could not redeem
undivided quarter, without a re-
demption of the entire
He
estate.
could not, for a period of ten years,

enter upon the land, without comThe defendants
mitting a trespass.
admit the existence of the
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 ownership of land, including the increase

of value by the application of his own
labor or capital, or its rise in the
There is neither mutuality

or equity in such a rule.
And we
are satisfied, upon examination of the
market.
no case will be found

which carries the doctrine of estopauthorities, that
para-
pel to the length claimed by the de-
eviction of the plainbut contend, after the eviction
fendants, which in fact estops the

grantee, and leaves a right of election in the grantor.
The case of
title
mount and the

tiff,
greatly increase in value, the grantor

would not be likely to purchase such
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-
So that the equitable rule of estoppel which forbids

the grantor to deny that he had the
estate which he had assumed to grant,
dition of the land.
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
is converted into a right of
wrong
election in the grantor, upon a breach
of his covenant to pay back the con-
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
highest consideration,
were not conclusive.
if,
to the
indeed,
it
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
sideration
money, or by indirection
to reconvey the estate.
We say an
a deed of warranty, with a mortgage

back of the premises, of the same
election by the grantor, for it is clear

that the grantee cannot compel the
grantor to buy in the paramount title,
The ground
date to the grantor.
taken by the counsel of the defi'iul-
but must rely solely upon his cove-
to
nants.
It is
the
and upon which the Court sivm

have proceeded in (heir judgment,
was, that there never had Uvn any
estate,
during the eviction, should
Interruption of the possession of the
equally clear that,
if
ant,
THE COVENANT FOR
89
SEIZIN.
whole consideration-money, so where there is a partial

Thus in the early case
breach he may recover pro tanto.
1
of Gray v. Briscoe, one covenanted that he was seized of
'Blaekacre in fee-simple, when in fact
and the jury were directed to give
was copyhold land,

damages according to
the rate at which the county valued fee-simple more than
2
So where in a case in New York, 3 the
copyhold land.
grantors had a life estate in four sixths of the premises and
a fee in the remainder,
was held
it
in
it
an action on the cove-
nant for seizin that the damages should be measured by

and seeking
plaintiff,
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, nominal damages only could be recovered,

unless the plaintiff had been evicted
title
by
paramount, or had actually
The
discharged the incumbrance.
Court in the case of Baxter v. Brad-
" held the covenant
was
not,
broken
but the context sufficiently shows

to be a mistake.
2
In
Wace
v.
"
;
this
Bickerton, (14 Jurist,

Law Jour. 254,
784, S. C. 19 Lond.
Chan.) one seized of a fee-simple

worth 57 per annum and of an
estate for life worth
190 per annum,
estate
Chief Justice Parker in the case of
conveyed them, on the marriage of his

and covenanted that
they were together worth 200 a year,
and that he was seized thereof in feesimple, free from all incumbrances.
Somes v. Skinner, 3 Pick. 52. An

examination of the whole opinion in
child of the
bury, refer to a statement of the

result of the authorities by the late
that case
this
would lead us
to infer that
made without
and distrust.
The
now under consider-
statement was not
some misgiving
precise question
ation was not before the Court,
what in that part of the case
decided was, that where a
enured by estoppel,
it
and
was
claration that the estate of the latter
was indebted
to the trustees of the
sum as would be
make up from its income
settlement in such a
sufficient to
the difference between the value of
the fee-simple estate, viz:

57, and
the annual sum of 200.
But Vice-
it
infant filed a bill against the executors of his grandfather, praying a de-
has
title
possession without right and under

the facts of the case, and in the view
which
Upon the death of the settlor, the only

marriage who was an
will avail the
grantee not only against the grantor

and his heirs, but strangers who usurp
in
son, to trustees,
was applied, there
is
no
Chancellor Bruce held that he was

entitled not only to the sum
for, but to such a sum as
produce
annual value of the

190 per
life, viz:
the
occasion to reconsider the rule there
estate held for
stated."
annum.
Noy, 142. In the report of this

case it has been erroneously printed,
126.
8*
Guthrie
prayed
would
v.
Pugsley,
12 Johns.
THE COVENANT FOR
90
SEIZIN.
deducting the value of the life estate from four sixths of the
purchase-money, and without interest, as there was no one
upon the
to call
a tenant for
life
the
plaintiff' for
mesne
So where
profits.
having conveyed with covenant for seizin
purchaser was held entitled to recover the consideration money, deducting therefrom the value of the life
in fee, the
estate,
and, for the
without interest.
same reason as
The
the case last cited,
in
principle adopted in these cases has

2
many others.
heen recognized and applied in

It naturally follows, that
upon a
failure of title in a
spe-
part of the subject of the sale, either party may, for the
purpose of affecting the damages, produce evidence to show
cific
the relative value which that part bears to the whole, and
3
this, as was said in Morris v. Phelps, operates with equal
"
justice as to all the parties to a conveyance.
Suppose,"
" a valuable stream of

said the Court,
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 improvements on it failed, but remained good as to the residue of
the land, would it not be unjust that the grantee should be
limited in damages, under his covenants, to an apportionment according to the number of acres lost, when the sole
inducement to the purchase was defeated, and the w hole

value of the purchase had failed ?
So on the other hand,
r
only the
if
title to
the nine barren acres failed, the vendor
the weight of extreme

if he was obinjustice,
to
refund
nine
of
tenths
the
liged
consideration-money. This
would
feel
Tanner
v.
Livingston, 12
(N. Y.) 83 Lockwood

devant, 6 Connect. 373.
dell,
376
Blanchard
Morrison
;
v.
v.
v.
WenStur-
Hoxie, 34 Maine,
M'Arthur, 43 Id.
567; Ela v. Card, 2 N. Ilamp. 175;

IHubbard v. Norton, 1 Connect. 435 ;
Rickert
r.
Snyder, 9 Wendell, (N.
Y.)416
Bryan
v.
Small wood, 4 Har.
& McHenry, (Md.) 483
Nyce's Ex'rs
Obertz, 17 Ohio, 7G Mills v. CatIn this case it
lin, 22 Vermont, 98.
v.
was held not

admit
life
to
the value of the

3 5
have been error to

tajbles to show
assurance
life estate.
Johns. 56, per Kent, Ch. J.
THE COVENANT FOR

not the rule of assessment.
is
damages
to the
SEIZIN.
The law
91
will apportion the
measure of value between the land
and
lost
This doctrine is laid down as an elethe land preserved.

1
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, but the purchaser
will recover
a proportion of the price
paid, in a ratio to
amount of the part from which he was evicted; and
the
of an integral part of the estate

meadow or vineyard belonging
to the farm, the damages must be assessed
according to
that
the eviction be
if
sold, as-
for instance, of a
a valuation of the price of the meadow or vineyard, and

the proportion which it bears to the price of the whole
estate.
and
it
Nothing can be clearer than the equity of this

has been frequently recognized and applied." 3
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.
Bonitatis estima-
tionemfaciendam, cum pars evincitur.

And Ulpian puts and answers this
question
Quid enim,
si,
quodfuit in
agro praitotftfmmiim, hoc evictum est ;

aut quod fuit in agro vilissimum ?
jEstimabitur loci qualitas, et sic erit
regressus; Dig. 21,
2,
1.
1,
1.
13 and
question were
first
rule,"
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

Bracton, 384,
a, b.
in the present case
writ.
If the recovery
had been of an
undivided part of all the lands conveyed by the deed, then the rule of
apportionment of damages according

have
been applied, and this distinction
to the relative value could not
The recovery in value

upon the warranty at common law,
was regulated by the same rule. The
runs through the authorities on the
capias ad valentiam was issued to take

as much land of the warrantor as was
cified
1.
64,
3.
equal to the value of the land lost.

Cape de terra in ballica tua ad valentiam tanta} terra quod B. clamat ut
jus suum ; and if the lands of the

warrantor lay in another county, different from that in which the lands
in controversy lay, then the lands in
subject.
only to
But
the plaintiff's
title
failed
an undivided part of a spetract, 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.
(N. Car.) 526
Shepperd, 3 Murphey,
;
Wallace
r.
Talbot,
THE COVENANT FOR

In this case of Morris
some importance
if
Phelps, another question of
v.
was urged for the plaintiff that

from recovering- more than the consid-
arose.
he were restricted
eration
SEIZIN.
It
money, he ought not
to recover less
that he
had a
whole land, and ought not to

damages
be compelled to accept a good title as to part, where there
was no title to the other part, 1 for the very part which was
right to full
for the
might have been the principal inducement to the purin other words, that the
purchaser had a right,
under such circumstances, to use the machinery of an action
lost
chase;
on the covenant for seizin as a means of rescinding the

2
But the Court held that in the first place the plaintiff
sale.
had never offered

conceive that
to rescind the sale, nor, if he had, did he
would have availed him
a court of law,
since the contract was executed and part of the considerit
But
was
said that, apart from this, there

.nothing in the case to authorize the plaintiff' to go for
ation fulfilled.
was
in
it
whole consideration, because the title to part failed.

That fact alone did not rescind the sale after the deed was
the
Leland v.
(S. Car.) 466
Stone, 10 Mass. 463 Cornell v. Jack-
McCord,
son, 3 Gushing, (Mass.)
510; Griffin
Reynold, 17 Howard, (U. S.) 611
Blanchard v. Hoxie, 34 Maine, 376
Giles v. Dugro, 1 Duer, (N. Y.) 331.
v.
In Pennsylvania, this doctrine was, in

King v. Pyle, 8 Serg. & Rawle, 166,
limited to a case
bears to the whole quantity of land
"I
paid for. This, however, even in a

case untainted with fraud, has neither
Tilghman saying,
give no opinion whether, in case of

of a fair sale and in an eviction of a
small part, the measure of
damages
should be the average price
agreed
be paid for the whole tract. I will

only say that I do not consider that
to
point as settled."
M (jiicnt case of Lea
,
non-conveyance of the one acre one

hundred and forty-four perches, that
he ought only to recover back such
proportion of the whole purchasemoney paid by him, as the one acre
one hundred and forty-four perches
where fraud had been
practised, Ch. J.
ton, 331
been contended, supposing that the

plaintiff is entitled to recover for the
But
v.
in
Dean,
the sub3
Whar-
the Court said, " It has also
reason nor authority to support
it,
as
very clearly shown by Chief Justice Kent, in Morris r. Phelps, 5

Johns. 56." See Nelson v. Matthews,
is
Hen. & Munf. (Va.) 164.

*
Fairer v. Nightingal,
nasse, G39.
2
See Chapter XIII.
Espi-
THE COVENANT FOR
SEIZIN.
delivered and the consideration paid, and the plaintiff was

entitled to recover damages only in proportion to the extent
of the defect of
title.
upon the amount of the consideration-money is

allowed to the plaintiff as part of his damages, in order to
counterhalance the claim for mesne profits which the owner
Interest
of the paramount
may
title
recover.
Every endeavor
is,
however, made hy the Courts to limit the recovery of interest within the hounds of a recovery of the mesne profits hy
the true owner.
recovery of these
Thus if the statute of limitations prevent a

for more than a certain number of years
back, interest will be allowed for no longer time;

i
" This
an old and well-settled
is
rule of damages," said the Court ;

" thus in the case of
Beauchamp v.
and
al-
copyhold land, in fee, according to

the custom; and the Court said that
the jury should give damages accord-
Damory, Year Book, 29 Ed. III. 4,

was held by Hill, J., that if one be
bound to warranty, he warrants the
ing to the difference in value between fee-simple land and copyhold
entirety, but he shall not render in

value but for that which* was lost.
son
more
the plaintiff should recover

than one sixth of the consider-
(and which case is

cited in Bustard's case, 9 Coke, 60,)
the same principle was admitted, and
ation
money and
it
In 13 Ed. IV.
it
3,
was declared and agreed
by the
exchange, where a
to
Court, that in
want of title existed as to part, the
party evicted might enter as for a
condition broken, if he chose ; but if
he sued to recover in value, he should
recover only according to the value

of the part lost. Though the condition be entire
it
was
and extends
to
all,
yet
said that the
warranty upon
the exchange might severally extend
So in the case of Gray v.
to part.
Briscoe, Noy's Rep. 142, B. covenanted that he was seized of Black-
acre in
fee,
whereas in truth
it
was
There
land.
tracts
and
is
then no law or rea-
why
interest, for the
mentioned in the
two
first
count,
five sixths of the consideration-
money and
interest for the tract
men-
tioned in the second count."

2 Staats v. Ten
Eyck, 3 Caines,
Sumner v. Williams, 8
(N. Y.) Ill
Mass. 222; Reese v. M'Quilkin, 7 In;
diana, 452.
3
Guthrie v. Pugsley, 12 Johns.

126; Patterson v. Stewart, 6 Watts
& Serg. 528 Kyle's Administrator
;
v.
Fauntleroy's Administrator, 9 B.
Monroe, (Ken.) 620; Williams v.

Beeinan, 2 Devereux, (N. Car.) 485
Rich v. Johnson, 1 Chandler, (Wise.)
;
20.
4
Caulkins
v.
Harris, 9 Johns. 324
THE COVENANT FOR

1
was denied that any

interest had ever been
though in a case in Massachusetts,

such limitation of the allowance of
Bennet
v.
Ela
Card,
v.
Jenkins,
2
13 Johns. 50;
N. Hamp.
178;
Clark v. Parr, 14 Ohio, 118 Lawless
In Patv. Collier, 19 Missouri, 486.
terson v. Stewart, 6 Watts & Serg.
;
SEIZIN.
it
an ejectment, and might justly abandon all claim to the property. From
that time then (1822), he is entitled
to interest on his purchase-money."
527, the statute of limitations does

not appear to have been applied.
Apart from the non-application of

the statute of limitations, this decision is perfectly sound, and the stat-
The
in
plaintiff in that case had,
1817, purchased a lot which was subject to an incuinbrance, under which
No possession
it was sold in 1822.
ute
was, however, taken by the sheriff's

vendee till 1831. In an action on
the covenant against incumbrances
implied by the words "grant, bargain, and sell," and on the covenant
position that the statute of limitations protected the purchaser against
the
commencement of the
of warranty, the plaintiff contended that the former covenant being
and
it
made, he was enfrom the year 1817

while the defendant urged that he
should be responsible only from the
year 1831, when possession was
broken as soon
as
titled to interest
The
taken.
Court, however, properly decided that neither of these
" The inwere correct.

cumbrance," said the Court below,
whose opinion was affirmed on error,
positions
" did not devest the

plaintiff of the
possession or title to the property
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 damuntil final
age,
it
is
not laid in the declaration
nor proved. But when the sheriff's

deed was made, the title was absolutely dcvested, and the damage no
longer contingent. The plaintiff was
not bound to incur the expense of
may not have been
in the recent case of
pleaded
Cox
v.
and
Henry,
8 Casey, 19, (32 Penn. State R.) this

decision was cited as supporting the
the claim for
mesne
for the six years
profits, except
immediately before
was held that
action,
interest
upon
the consideration-money was recoverable to the extent of the mesne

profits.
The same principle was applied in

the recent case of Kyle's Administrator
9 B.
v.
Fauntleroy's Administrator,
Monroe, (Ken.) 620, where the
defendant's intestate had, in
80 7, 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 intestate 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.
i
Whiting
ing, 428.
u.
Dewey, 15 Picker-
THE COVENANT FOR
was suggested. by the Court

by counsel, that the equitable rule of dam-
sanctioned in that State, yet
and acquiesced
ages would be
money
in
SEIZIN.
it
to allow the plaintiff' to recover the purchase-
was no
so for as there
seizin,
with interest, deducting

was not respon-
the profits received by him for which he

1
sible to the other tenants in common.
l
In a recent case in Maine, Spring

Chase, 22 Maine, 502, the plaintiff
had been obliged, about seventeen
v.
years after his purchase, to
buy
in
an
In a late case in Missouri, however,

these views were considered to be subject to
qualification when ap"

can
unimproved land.
much
plied to
We
the
outstanding paramount title, and
Court held that he was entitled to
almost feel the inconvenience," said

the Court, " of telling the vendor,
recover the amount paid by him to

perfect the title, with interest from
when he
the time of this payment.
In oppo-
sition to the claim for interest, the
defendant urged that during no time

plaintiff actually received
had the
from the prembut the Court said that whether
any rents or
ises
profits
is
sued for the purchasereceived, that he shall
money he has
interest, and yet be allowed nothing for the rents and profits the vendee has derived from the possession,
pay
for the reason that the
and
title
his
vendee
the true owner.
vendor had no
is
liable
over to
We know that, nine
the vendee turned his purchase to a

was no concern of the
times in ten this liability over to the

real owner is a mere bugbear. When
"
vendor, since
improved lands are

of the land and the
profit or a loss
real estate,
if
it is
a person purchase
to
he does so because
be presumed that
its
rents
and pro-
be equivalent to the interest

of the money he may be content to
pay for it." This case, it will be ob-
fits
will
served, so far from impugning the

rule already mentioned with respect
to
interest,
which at
first
sight
it
sold, the
rent
interest of the
are supposed to counterpoise

each other. In this State, many in-
money
vest
their
money
in
unimproved
lands, relying on the increasing value

of the land as an equivalent for
the interest of the
Purchases
may
money
invested.
be made, in
inducement may
also
might appear to do, is in strict accordance with it, since the plaintiff
which this latter

be blended with a desire
was allowed no interest before the

time when he bought in the outstanding title, because in so doing he
left no one who could
claim the
mesne profits, he having purchased
land but partially improved. In case,

therefore, of unimproved land, it
the whole
interest
title
from
while he ivas allowed
that time, because that
to obtain
would be unjust to say, in this State,

as has been said elsewhere, that,
whether the vendee turned his purchase to a profit or a loss, was no
concern of the vendor, since
if
might be presumed equal to the rents

and profits he had a right from thence
person purchase real estate, it is to

be presumed that he does so because
to expect.
its
rents will be equivalent to the
THE COVENANT FOR
96
It is evident,
SEIZIN.
however, that so far as
this
allowance of
must recover from
interest is concerned, the plaintiff
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
Mr. Sedgwick has remarked
profits
from the covenantee.
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
of the
interest
money he may be
contented to pay for it.

" These considerations show the
difficulty of prescribing
any fixed rule
in relation to the interest that
be recovered
for seizin.
is
to
in suits on covenants
When
the possession ob-
tained by the vendee, by reason of

his purchase, has been beneficial, and
he has not been, and
it
can be seen
with certainty that he will not be

owner for the
liable over to the real
rents and profits, it would be unjust

to allow him full interest on the pur-
chase money. Where the possession

lias not been beneficial, and it may
be inferred that
by the
it
was contemplated
it would not be
parties that
a right to enter for non-payment,

claimed to receive back the amount
thus
paid
with
was
interest
for
some
the jury to say

whether they had not been guilty of
negligence in not proceeding against
years
it
left to
the sureties until after they had become insolvent, and the jury having
found that they might have recovered from the sureties, the interest
was not allowed, Denman, Ch. JM

" If
promptly obtained from
saying,
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 course for the
defendant." In the recent case of
so,
Blake
the
(Verm.) 437, it was held that interest was only recoverable accord-
justice
requires that interest
should be allowed from the time of
payment of the purchase-money."
Lawless
In
v.
Collier, 19 Missouri, 486.
Andcrton
Arrowsmith, 2
Perry & Davison, 408, a vendor
had, on the sale of a life estate, given
v.
covenant for quiet enjoyment

and a bond of indemnity with sureties against all costs and claims, and
v.
Burnham,
Williams,
ing to its legal rate, without regard

to the amount of interest which the
had agreed to pay or the

by him for the purchase money; and in Drew v. Towle,
10 Foster, (N. H.) 536, it was ih--
plaintiff
securities given
ciilcil
that interest could never be
lluty liad
recovered by making rests at stated

periods, but that simple in;
annuity
alone was recoverable.
tin;
plaintiffs
having
averred that
been obliged to pay a prior

which had been diargcd
upon the land and given tho holder
THE COVENANT FOR
SEIZIN.
97
he has actually been compelled to pay the mesne
In-
profits.
terest is given to counterbalance the claim of the true owner

but even after eviction the loss of the
mesne
for
profits,
does not necessarily follow, as we have heretofore seen the law does not give actual compensation for
1
If, however, no allowance were at that
probable loss."
mesne
profits
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.
Sedgwick on the Measure of

Damages, (2d ed.) p. 169, note.
2 See
supra, p. 75. Upon this sub1
nearly as possible in statu quo. If the

contract between vendor and ven-
Administrator, 2 Dana, (Ken.) 467:

" Where the
profits of the land in
dee is set aside by the Chancellor, he

would never give interest to the vendee, and allow him also to keep the
On the contrary, he would
profits.
say to the vendee, as you have enjoyed all you contracted for, and as
possession of the vendee, are of more

value than the interest of the money
the profits of the land are as valuable, or more so, than the interest on
enjoyed by the vendor,
the- purchase-money, you shall not

have both but if you require a res-
ject of the recovery of interest, the
following remarks were
derwdbd,
J., in
Combs
made by Unv.
it
Tarl ton's
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
by an adand becomes
evicted
verse paramount claim,

responsible to the evictor for the
mesne
profits, then he ought to recover interest from his vendor for as
years as he is or may be required to account to the evictor for

the profits. But where the vendee
many
is
its
not bound to account for the profof the land to any one, and where,
toration of purchase-money and interest,
you must
and
the land
restore,
on your part,
its profits
but, as
by
the contract, you and the vendor regarded the land and purchase-money
equivalent to each other, I (the Chanregard the use of each as
cellor) will
of the same value, and take no account between you for interest or
This doctrine
where the
profits.
land yields a profit, or can be made
by such care, attention, and
manage-
as in this case, the profits greatly exceed the interest of the purchase-
ment
money, manifest injustice would result from permitting the vendee to

recover interest, and likewise to keep
the profits. The principle upon which
on the purchase-money
is sustained by the clearest principles of
recip-
contracts ought to be rescinded, is

that the parties should be placed as
all
as proprietors
usually bestow,
to yield a profit equal to the interest
rocal justice.
But where the land
yields no profit, and cannot be

to yield any, without
improving
the expenditure of
money
made
it
by
or laboiy
THE COVENANT FOR
98
It not unfrequently
SEIZIN.
happens that a vendee
is
reluctant
abandon his purchase to a paramount claimant without a

struggle, and this unwillingness will, of course, increase in
to
as the value of the property has been enhanced

proportion
while in his possession ; hence we must inquire how far a
purchaser may, in his action of covenant against his vendor, include in his damages the expense to which he has
been put
in
defending the
which he has received from
title
the latter.
The
rule is well settled to this extent
or both, then there may be strong

reasons for insisting, in case the contract be rescinded, that the purchase-
money with
its
interest should
be re-
by the vendor. In such a case,

the vendee generally regards the prosstored
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
that as
would
another suit would be desirable,
if
insuperable objections did not present themselves.

There are, however, too many questions growing
out of the recission of a contract be-
tween vendor and vendee put into

them to be considered and settled by the jury upon
the trial of an action of covenant.
The vendor may be entitled to a setpossession, to allow
off for the profits of the land, for
the default of the vendor, get the land,

being deprived of the contemplated
waste and damage
which constituted the leading

motive for the contract, and receiving
no esplees, or profits, the land not
an allowance
rise
it
claims, the
settle
and against these

vendee may be entitled to
;
for improvements.
To
such multifarious and compli-
being in a condition to yield any,
cated matters, the Chancellor is more

competent to administer justice, than
would require the restoration

of the purchase-money, with interthe contract.
est, upon a rescission of
shall
hasty inquiry of a jury.
therefore leave the rule at law to
justice
The
first decided by this Court,

in
all
were,
probability, of this de-
cases
scription.
" Whether the rules which would

govern in chancery, can be applied
with safety to a trial at law, has been
a subject of
the Court.
to be the
much consideration with

The rules of right ought
same
in
every tribunal, and
should be so applied as to settle controversies with all practicable speed.
To
avoid the expense and delay of
the
common-law Judge aided by the
We
stand as
we found
it,
and
as recog-
nized by the case of Cox's Heirs v.

The vendee is
Strode, 2 Bibb, 273.
entitled to his judgment at law for
and
amount of the purchase-money

interest, and then the vendor
may
resort to the Chancellor for a
the
settlement of the rents, profits, waste,

and improvements, and for such de-
cree as equity requires."

v.
See Hart
Baylor, Hardin, (Ken.) 399.
THE COVENANT FOR
99
SEIZIN.
be expecting too much of a purchaser to decide at his peril

on the validity of a title set up in opposition to that which
vendor undertook to convey, the former should he

allowed, by way of damages, the taxed costs of any action
his
by which he has reasonably sought to maintain or defend

1
Thus in Smith v. Compton, 2 upon a writ of
that title.
inquiry of damages, the jury included the sum which the
plaintiff
had been obliged to pay, by way of compromise,

under the superior title, and also the
to the party claiming
between attorney and
as
plaintiff's costs,
client,
of the ac-
It was urged that

tion brought against him by that party.
as to the former sum there should have been a notice to
the covenantor,
who might,
better terms
perhaps, have settled the action

to the latter, the plaintiff
and that as
upon
ought only to recover costs between party and party.
it
was held
be to
want of notice, would

show that the bargain was
which could not be assumed without
that the only effect of
the covenantor in to
let
an improvident one,
l It
But
must
however, be pre-
not,
sumed from the
class of cases estab-
lishing this rule, that they go further

than merely to sanction the recovery
of costs in an action reasonably defended in order to ascertain the true
position of the
title.
On
the contrary,
has been repeatedly and recently

held that " no person has a right to
Walker u. Hatton, 10 Mees.

730
S.
C. 6
The
493.
&~VVelsb.
Ho well, 6 Excheq.
Eng. Law & Eq. R.
and Smith
249,
v.
rule of those cases
is,
how-
ever, obviously far from having a universal application Lewis v. Peake, 7

;
Taunton, 153
7 Car.
Pennell
v.
Woodburn,
&
against an-
Payne, 117; especially with

respect to the covenants for title. In
Smith v. Compton, cited in the text,
other by incurring additional expense

in the unrighteous resistance to an
Park, J., remarked, On the strength

of the covenant in this case the cove-
it
inflame his
own account
action which he cannot defend " per

;
Lord Dcnman
11 Adolph.
pon,
&
in Short v.
Ellis,
Moody &
28
Kalloway,
Gillett v. Hi-
Malkin, 406
Drew
Towle, 10' Foster, (N. H.) 537 ;

the case of Nealle v. Wyllie, 3 Barn.
v.
& Cress. 533, which was thought to

go too far in sanctioning a recovery
of such costs, has been overruled in
"
nantee was justified in acting as if he

had a good title. If he defended an
action,
it
was the consequence of your
covenant."
23 Barn. & Adol. 407.

The difference between an Eng-
lish
and an American bill of costs

be remembered by the
will of course
student.
THE COVENANT FOR
100
1
proof
and as
SEIZIN.
was not indemni-
to the costs, the

plaintiff
he received the amount of the costs paid by him

The law as thus held has been reto his own attorney.
fied unless
2
peatedly applied on both sides of the Atlantic.
l
The same
principle with respect

bound by the
plaintiff in
" If"
the ejectment."
" the
J.,
warrantor, on
to notice to the party
added Ford,
covenant was distinctly recognized in
learning that his title was defective,

should make an admission of the
Morris
v.
306, where
not
2 Harrison, (N. J.)

the Court said that it did
Rowan,
find, after looking at all the au-
the question whether
thorities, that
and request the covenantee not

to costs by making a use-
fact,
to
run him
less
defence, perhaps
it
might prove
costs should
be allowed as damages
had ever been made to depend on the
fact of notice by the covenantee to
an exception to the general rule."

In Swett v. Patrick, 3 Fairfield,
(Me.) 10, it seems to have been
the covenantor of the suit by which

the former was evicted. " If notice of
thought by the Court that as the

covenantor had been notified, the
costs were therefore recoverable
but
the cases generally do not recognize
the suit had been given to these deand they had either declined
fendants,
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.
this distinction,
and
as
covenantor (supra, ch.
seem equally
only refused to defend the suit, but

had given notice to the tenant that
the recovery of costs.
it
he made any defence, he must do

at his own risk and expense would
;
that have availed
him anything ?
would place a grantee

in hazardous circumstances, if upon
such an intimation from his grantor,
he must either defend at his own expense or abandon the title, and look
for compensation in damages under
think not.
It
On
well set-
not preclude the recovery of damages upon the covenant, but only increases the burden of proof on the
suppose the defendant, conscious of

the unsoundness of the title, had not
if
it is
tled that the absence of notice does
would
vii.), it
to follow that the ab-
sence of notice should not preclude

a
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-
Williams, 8 Mass. 162 Tufts

v. Adams, 8 Pickering, 550 (where
the costs were incurred by the cove-
ner
v.
nantor as
plaintiff,
in consequence
of the representations of the coveHarding v. Nelson, 27

nantee)
;
am
of opinion that notwithstanding

such notice from the covenantor, the
Maine, 525; Haynes v. Stevens, 11

N. Ilamp. 28; Loomis v. Bedel, 11
Id. 74 French v. Parish, 14 Id. 498 ;
grantee would have a right to recover

from him the taxable costs he had
Kyle's Administrator v. Fauntleroy's

Administrator, 9 B. Monroe, (Km.)
incurred in honestly and fairly resisting the claim of title set up by the
622
his covenants.
the contrary, I
Pitkin
v.
379; Turner
Lcavitt, 13
v.
Vermont,
Goodrich, 26 Id.
THE COVENANT FOR

has also been held in
It
many
101
SEIZIN.
cases, that in addition to
these taxed costs, the plaintiff should be entitled to recover

Thus in an early
his counsel fees and other expenses.
case in
New
York,
it
was held
that in costs
So
taxable.
in a later case,
evicted under a
in
judgment
fended, brought
were included
such costs as were
reasonable fees of counsel, as well as
where the
plaintiff
had been
an action which he had de-
under the paramount
title,
it
was
said,
"The
taxed costs included in the record were certainly

admitted.
The
proper, if the record itself was properly
costs of the defence
if
and of counsel
the plaintiff's declaration
And
were also proper,

admit them."
fees,
sufficient to
such expenses have been held to be recoverable in
many
other cases.
was
fees
3
4
however, the recovery of coun-
denied, while
other expenses were liberally

suit brought, but the
In Leffingwell
sel
was
v.
Elliot,
There had been no adverse
allowed.
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,
(N. Y.) 115, (where, however, it was

said that the costs of defending the
action
mesne
for
profits
were not
recoverable, as the covenantor was

not bound to defend that suit; see
supra, p. 100); Pitcher V.Livingston,
4 Johns. 1 Waldo v. Long, 7 Id. 1 74 ;
;
Burnetu. Jenkins, 13 Id. 51; Rickert

v.
Stewart v.
Snyder, 9 Wend. 423
;
Drake, 4 Halst. 141 Holmes v. Sinnickson, 3 Green, (N. J.) 113; Cox's
;
Heirs
v. Strode's Heirs, 2 Bibb,

(Ken.)
273; Barnettr. Montgomery, 6 Mon-
roe,
(Ken.) 332.
Some of these cases
were actions upon the other covenants

for title, and some on mere personal
covenants of indemnity but the prin;
9*
ciple as to the point of notice is the

same as in suing on the covenant for
seizin.
1
Staats
Ten Eyck,
v.
(N. Y.) 115.

2 Kickert v.
Snyder, 9
3
Sumner
162; Swett
10;
Hardy
Gennings
Haynes
v.
v.
Wend.
v.
Williams,
v.
Patrick,
v.
3 Caines,
423.
Mass.
12 Maine,
Nelson, 27 Id. 525;

Norton, 35 Id. 314 ;
Stevens, 11 N.
Hamp.
28; Kingsberry v. Smith, 13 Id.

125; Drew v. Towle, 10 Foster,
(N. H.) 538; Pitkin v. Leavitt, 13
Vermont, 379; Keeler ?;. Wood, 30
Ijl.
658.
8 Pickering, 457.
102
the
THE COVENANT FOR
SEIZIN.
paramount title for a nominal sum, they were entitled

no more of the defendant.
If they were
to
to recover
put
trouble and expense in

procuring the extinguishment, that
was a proper ground of damages." The auditor to whom
was referred
it
to estimate these, classified the

plaintiff's
claims under three heads
(besides the amounts paid

with interest from their payment), charges for the plaintiff's time while thus employed,
for horses, carriages, board, and counsel fees, with interest
:
first
to extinguish the adverse title,
on each from the service of the writ in the action on the

covenant
secondly, similar charges subsequent to the service 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
1
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 counsel fees
"
should be disallowed, and the other charges placed
same ground in that as in other actions, tres"

and the fees of the auditor were
example
pass,
allowed in the costs.
So in a late case in Massachusetts 2
"
it was said that
the counsel fees cannot be allowed. These
upon the
for
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 expenses incurred in the management of a suit by the taxable costs."
recent cases.
1
The same
rule has been adopted in
10 Pickering, 204.
Rcggio
166.
The
some other
which
Braggiotti, 7 Gushing,
action was for a breach of
v.
warranty of quality of personal property which had been resold by the

plaintiff with a like covenant,
upon
his
purchaser had recovered
plaintiff
an action of which the

had notified his vendor,
See
Guild
damages
also
in
v.
Guild, 2 Metcalf,
(Mass.) 233.
3 Jeter v.
Glenn, 9 Richardson's
THE COVENANT FOR

In
New
Jersey,
it
seems
to
103
SEIZIN,
have been held, on the au-
of Chancellor Kent, in his Comthority of an expression

" could recover
1
mentaries, to the effect that a covenantee
the consideration-money with interest, and costs, and no
"
that counsel fees, other than those taxable in the
more ;
bill
of costs, were not recoverable
2
;
but the expression in
rule
question seems by the context to have referred to the
as settled in most of the States, that upon none of the cov-
enants for
could the damages be increased by reason
title
3
of improvements or a rise in value of the land, and not to
have referred to the question of counsel fees, or other ex4
penses.
It
must
not,
however, be supposed that the right to
recover counsel
fees expended by the purchaser in the

which
he has sought to maintain the title reby
ceived from his vendor, can be so extended as to embrace
action
Law R. (S.
Car.) 380 ; Gragg v. RichWhatever

ardson, 25 Georgia, 566.
doubt might exist as to the propriety
of including in the damages recoverable upon the covenants for title such
counsel fees as have been referred
none can
to,
nant to indemnify and save harmless

the covenantee from all loss, damage,
Robinson v. Bakewell,
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. Bakewell,) and sometimes in the executory articles of sale, in which latter
case they have been held not to be
merged or extinguished by the acceptance of the deed. Cox v. Henry,

supra; Colvin
v.
Schell,
Cases, (Pa.) 226.

l
4 Commentaries, 477.
Grant's
Sinnickson, 3 Green,
v. Rowan, 2
in Morris
without dissent.
58,
v.
;
Harrison, (N. J.) 306, cited supra,

p. 100, this decision was referred to
exist in the case of a cove-
expenses, &c.
Holmes
(N. J.) 313
See as
and
to this subject, supra, p.
Chapter VII.
In the recent case of Gadsden
infra,
The Bank of Georgetown,

ardson's
Law Rep.
v.
5 Rich-
(S. Car.) 336, the
had an execution against a

defendant, which the bank, a subseplaintiff
quent execution-creditor, enjoined

on giving a bond conditioned to save
the plaintiff harmless from all damages 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 counsel fees, expenses, &c., incurred in
the effort to dissolve the injunction.
THE COVENANT FOR
SEIZIN.
those incurred in suing the latter upon his covenants for

1
title.
l Even the
right to recover costs
in the latter case rests purely upon
It will be restatutory enactment.

that until the statute of
membered
Gloucester (6 Ed. I. c. 1,) no costs

whatever were allowed in any action.
That statute provided that the demandant might recover against the
tenant the costs
chased.
stricted,
of his writ pur-
These words, however

were held to extend to
reall
the legal costs of the suit, but not to

the costs and expenses of the plaintiff's travel and loss of time
2 Inst.
;
288. Since then, whenever damages

are recovered in cases arising ex conin
tractu,
which
is
no element of
fraud, wilful negligence or malice,

they have been limited to the plaindirect pecuniary loss
tiff's
and the
legal costs of the suit brought to enforce 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
v.
Cushing's Domat, 769

Mylin, 8 Barr, (Pa.) 56.
;
Good
105
THE COVENANT FOR GOOD RIGHT TO CONVEY.
CHAPTER
III.

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
a power of transferring it,
in fee
simple necessarily implies
so that a covenant for good right to convey seems useless

Avhen preceded by a covenant that the vendor is seized of
an indefeasible estate in fee simple, yet the converse of the
proposition
numerous
by no means universally true ; the cases being

which the subject of the purchase is transferred
is
in
by virtue of a power, although the vendor may not be seized

of an estate.
Where such
omitted and in
is
its
is
place
the case, the covenant for seizin
substituted
covenant
that
a valid and subsisting one, and has not been

power
1
exercised or extinguished.
In English conveyancing it has
the
is
been, until recently, quite a
common
practice to insert, in
same deed, both the covenant for seizin and for good
2
But in the most modern conveyances,
right to convey.
the
Sugden on Vendors, 510

on Vendors, 259.
2 This
practice may have
(though
from the
this
is
Dart
passing the wife's estate by suffering

a fine, to limit estates to such uses as
arisen
the purchaser should appoint, and for

want of appointment, to himself in
a mere suggestion),
fact that
it
England (before the
was usual in
statute of 3
&
Here the fee was, until appointment made, vested in the purchaser
and his heirs, as a qualified and de-
fee.
4 Will. 4, c. 74, abolishing fines and

recoveries,) for conveyancers, for the
terminable fee, to yield, however, to
purposes of barring dower and
the estate which would arise
es-
caping the expense and trouble of
in the appointee
by
and vest
virtue of the
106
the former covenant

1
as the latter
serted,
is
is
more frequently omitted than

quite practically sufficient, and
length of the instrument

than it formerly was.
is
now
far less a
in-
the
prominent object
In some parts of this country there would appear to be

an especial reason for the insertion of the covenant now unIt has been remarked in the
der consideration.
preceding
2
chapter, that in many States the covenant for seizin is answered by the transfer to the purchaser of an actual though
a tortious seizin, irrespective of the right by which the
property
held
is
limited in
its
and where the covenant
application to the
mere
for seizin is thus
transfer of the seizin,
narrowest signification, there would seem every reason

a purchaser should protect himself by a covenant which
in its
why
refers exclusively to the right, or, as
it
is
popularly called,
For although a covenant of warranty or for quiet

enjoyment might protect him, when the subject of the purchase should be taken from him, yet there are many instances
the
title.
which a recovery would be sanctioned upon the covenant

for good right to convey, when it would be denied
upon
in
these other covenants.

In such case, there would
seem to be room for the operation of
"
had always sur-
power.
the law
both covenants.
prised him, and was contrary to the

experience of practical conveyan-
It was, however, held by Chief

Justice Eyre, in Goodill v. Brigham,
1 Bos. & Pull. 192, that a power was
inconsistent with
an
estate in
fee-
simple, the latter being so high a nature as to merge and render void any
power which might be intended to

accompany it and this was adopted
by Sir William Grant, when Master
;
of the
Rolls, in the case of
Maun-
But on the arguLord Eldon

(10 Vesey, 264), he said that the
" was not
case of Goodill v. Brigham
drell v. Maundrell.
ment of
that case before
cers,
that
who were
it
in the constant habit
of so limiting estates on their transfer.

to a purchaser, for the purpose of
barring the dower of the wife of the
purchaser when he in turn should
wish to dispose of
it,
without the
troublesome and expensive process

of levying a fine and the law has
;
been so recognized
in a
number of
later decisions,
1
Hughes' Practice of Sales of Real
Property, Vol. 1, p. 411.

2 See
page 20 et seq.
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 he 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
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 confor
good right
it
vey
to
under those
It
acts.
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
2
reason of her infancy, was held to be a manifest breach.
But
equally clear that
it is
to the
ing
title
it
was considered
and where the covenant
is
also as relat-
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
the jus, as distinguished from the seizina?
form of the covenant is usually in these words
premises
The
" That the said

(grantor)
full
power and absolute
Supra, p. 31.
Nash
S. C.,
3
v.
Ashton,
now
authority, to grant, convey
in Triplett
and
as-
covenant was not broken by an adverSkinner, 42
T. Jones, 195.
Thus
hath in himself good right,
sary possession merely, but was broken only by a want of legal title in
J. J.
the grantor, such as he had a

right to
Marshall, (Ken.) 432, where the covenants were of good right to convey,
sell and convey."

It may, moreover,
be remarked of this case, that, as the
and of warranty, it was held that the

former " imported only that the grant-
champerty statute was not passed
or had a right to convey, and did not
construction of the covenant did not
imply that he had possession.
come within
v. Gill, 7
Such a
till
after the execution of the deed, the
that referred to above.
108
sure the said messuage, &c., with the appurtenances, unto

to the use of the said (purchaser), his heirs, appointees
and assigns, according to the true intent and meaning of
and
these presents."
Much
of what has been said in the preceding chapter as

to the peculiarities of the covenant for seizin applies equally
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
to that for right to convey.
1
by an heir or an assignee.
rules as to the pleadings

3
the same as to both.
1
40.
2
3
2
;
Both are governed by the same

and the measure of damages is
v. Holmes, 5 Halstead,
See Chapter VILE.
Chapman
Jenkins, 305,
Bickford
v.
234.
pi. 79.
Page, 2 Mass. 455
Dunnica
Willson
Sharp, 7 Missouri, 71 ;
Willson, 5 Foster, (N. H.)
v.
v.
CHAPTER
109
IV.
THE
difference
that
exists
between
covenants for
the
title as
expressed in England, and on this side of the Atlantic, is strikingly shown with respect to the covenant
There, it is almost invariably inagainst incumbrances.
serted after the covenant for quiet enjoyment, to which it
may
be almost said to be a kind of supplement.
After
it
has
been set forth that the grantee shall quietly enjoy, &c., the
" And that
conveyance goes on to say
(that is, the peaceable enjoyment) freely, clearly and absolutely indemnified
:
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."
This covenant used to afford am-
pie scope for the ingenuity of the

draftsman in the insertion of the
debts to the King's majesty

or any of his predecessors, sequesord,
trations, estates, titles, troubles, liens,
number of words the vendor being made to covenant against

" all and all manner of former and
charges,
ever."
and incumbrances whatsoSuch was the form given
by Mr.
Platt,
other
Covenants,
greatest
gifts,
grants, feoffments, leases,
1829.
p.
in
his
330,
Treatise
on
published
in
Any
mortgages, bargains, sales, jointures,

dowers, right and title of dower,
apt words, however,

tending to show the meaning of the
uses, trusts, wills, entails, annuities,
party using them, will, in general,

be held sufficient and be interpreted
most strongly against him. Thus a
legacies, rents, arrears of rent, fines,

issues, amerciainents, statutes, recog-
nizances, judgments, executions, extents, suits, decrees, debts of rec-
10
covenant
seized
that
the
defendant was
of an indefeasible estate in
110
sentence thus
commencing with
free," &c., necessarily
the
words " and that
construction upon the

to which it is intended to
depends for
its
preceding sentence or clause

relate, or of which it forms a part.
When, therefore, this
of
that the grantee
sentence
the
covenant
consists
prior
"
" shall
the premises, (a covenant entirely
peaceably enjoy
in its
prospective
operation,) it is obvious that the covenant
incumbrances, thus
against
with
connected
it,
must be
equally prospective, and that its breach must therefore depend, not upon the mere fact of existing incumbrances at
the time of the execution of the conveyance, but on the disturbance or damage which the incumbrance might thereafter
cause.
Such a
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

they assure, in the same manner as the covenant for
title
Here, in nearly every State, the covenant

broken at all, is held to be broken as soon as
quiet enjoyment.
for seizin, if
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 v. Kimball, 8 Johns. 153

v. Glenn, 9 Richardson's Law
R. (S. Car.) 377 Carter v. Denman,
;
condition to alter, charge, determine

or defeat the same," was held in
Jeter
Eldridge, 16 Johns. 256,

to be in substance and effect a cov-
3 Zabriskie, (N. J.) 273.
ference
enant against incumbrances.

i This distinction as to the form of
the covenant will be found noticed
enant that an estate is free from all

incumbrance and one that the grantee shall enjoy it free from all incuin-
Vane v. Lord Barnard, Gilbert's

Eq. R. 7, note Gardiner v. Niles,
16 Maine, 281
Nyce's Ex'r v.
Obertz, 1 7 Ohio, 74 Grice v. Scar-
brance, as in the latter case the covenant is not even technically broken
Stannard
v.
in
borough, 2
Spears, (S. Car.) 652;
is
The
dif-
obvious between a cov-
as long as the covenantor has sustained no injury,
THE COVENANT AGAINST 1NCUMBRANCES.
Ill
American authority holds it to be, equally

general current of
with the covenant for seizin, a covenant in presenti, and
1
broken as soon as made.
Hence, whenever introduced in

with
the covenant for quiet encoupled
of
out
this severity of rule, and
be taken
this country, thus
joyment,
it
being thus
may
may
made
prospective in
enure to the party in
its
operation,
whose time the
benefits
its
actual loss has
happened.
But
America, the covenant against incumbrances

almost always stands by itself as a separate and independent
" and that
in
short
as, in
the
form,
covenant, (generally expressed
all incumbrance,'
free
and
clear
of
the premises are
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 limited to the acts or omissions of the covenantor,
it is
on
this
side of the Atlantic generally expressed in the short form,

" free and clear of all incumbrance
that the premises are
"
In England the
done or suffered by the said
grantor.
is more
and
after
the
form heretofore
precise,
language
"
made, created, occasioned, or
generally added,
suffered by the said (grantor), or any other person or persons whomsoever rightfully claiming under or in trust for
2
given
is
him, or by or with his or their acts, deeds, default, privity

3
or procurement."
The usual and only covenant into which a fiduciary vendor can, in strictness, be compelled to enter, is that he has
1
See Chapter VIII.
Supra, p. 109.
These concluding words, " acts,

means, consent, default, privity and
procurement," have in England re3
ceived certain constructions which

are particularly referred to in the
next chapter, where they more properly belong.

l
done no act to incumber the estate

it is
frequently called
" the usual trustee
and
is
covenant,"
generally thus ex" that he the said
pressed
(grantor) hath not at any time
heretofore made, done, permitted or suffered, or been party
;
or privy to any act, matter or thing whatsoever, wherewith 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
was formerly and
which the covenant against incumbrances

to a certain extent is
still
expressed in
England, necessarily precludes many questions which would

otherwise arise as to
There would be
its
scope.
little
difficulty
on either side of the
Atlantic in holding that most of the incumbrances enumerated in the English form, (such as leases, mortgages, trusts,
&c.) came within the covenant as

" that the said
generally expressed here,
premises are free
and clear of all incumbrance."
annuities, judgments,
reason
of this
of expression, however,
doubts have here at times arisen as to what constitutes an
By
terseness
incumbrance within the scope of such a covenant.

In an old case in Massachusetts an incumbrance was defined to be " every right to or interest in the land to the diminution of the value of the land, but consistent with the pass"3
and this definition has
ing of the fee by the conveyance ;
been frequently and recently cited with approbation, 4 and as

a general rule must be deemed correct.
1
See
The importance
in/ra,
Chapter XI.
295.
of the expres-
sion being " party or privy to,"
which
See 2 Sugden on Vendors,
519.
3 Prescott
not necessarily implied by the

words " permitted or suffered," is
630.
exemplified by the case of Hobson
527; Carter
is
y.
Middleton,
Barn.
&
Cress.
Mitchell
(N. J.) 278.
v.
v.
v.
Trucman,
Warner,
Denman,
Mass,
5 Connect,
3
113

Thus
of prior taxes,
which
obviously broken by the existence

of a judgment, a mortgage, or any debt
2
So where a testator devised
the land.
the covenant
1
is
a lien upon
to his daughter the right of living in part of a house, of
which the whole was afterwards sold by the residuary deis
such paramount right was held to be a breach of the
visee,
So
covenant against incumbrances made by the latter.
the covenant is broken by the existence of such easements
as a
dam up and
to
paramount right
use the water of a
4
stream running through the land conveyed, or of a right
Long
272
Moler, 5 Ohio State R.
v.
Mitchell
v.
Pillsbury, 5
Of course, taxes assessed
consin, 410.
after the execution of the
not within the covenant

v.
deed are
Hutchins
Moody, 30 Vermont, 657
son
v.
Wis-
Jack-
Sassaman, 5 Casey, (29 Penn.

but if the lien of the
State R.) 109
taxes has attached before that time,

the
covenant
is
broken
Long
v.
Had
estimation.
the
proceeds of
pews exceeded the

cost of the house, the plaintiff would
have had his proportion of the benethe sale of the
The
loss therefore is properly

In a late case in Maine, (Clark
Perry, 30 Maine, 148,) the defend-
fit.
his."
v.
ant conveyed to the plaintiff ten

shares in an incorporated company.
The
were not equal

which a general law of
assets at the time
Moler, supra. In Spring v. Tongue,

9 Mass. 28, the subject of the sale
to the debts,
was a pew, which the seller covenanted to be free from all incumbrance.
and it was held that this liability

was a breach of the covenant against
incumbrances, and in referring to
ment which it might be necessary to

make, and the plaintiff had been
Spring v. Tongue, the Court said,

" It does not
appear but that the
pews at the time of the sale to the
By the act of incorporation,

the pews were liable for any assess-
obliged to pay a certain sum assessed

for the deficiency of funds in building the church, the money arising
sale of the
from the
made up
that purpose.
held
"
:
We
The
Court, however,
cannot consider this as
an incumbrance
fendant
facts
is
pews not having

amount for
the requisite
for
liable in
which the de-
The
known
damages.
must have been equally
each of the parties. The damage

to the plaintiff arose from the diminto
ished value of the pews in the general
10*
the State
made
the shares liable for,
were equal in value

amount of the expenses. But
plaintiff
to the
in the
present case it is stated, that the assets were not equal to the liabilities
at the time of the conveyance."
2 Reasoner v.
Edniundson, 5 Indi-
ana, 394
(Me.) 94
Bean
Pickering, 44 7
2 Metcalf, 510.
3
4
Jarvis
v.
Mayo,
Shearer
v.
v.
Norton
Buttrick,
Morgan v. Smith,
Ginn v. Hancock,
5 Greenleaf,
Ranger, 22
v. Babcock,
Metcalf, 480.
11 Illinois, 199
31
Maine, 42.

of
way
to
a spring upon
course,' or to cut timber,
it,
or to clean an artificial water-
or to erect a party-wall,
and the
like.
however, every easement whose existence will

5
constitute a breach of the covenant against incumbrances.
It is not,
as are either expressly or impliedly excepted from the

grant will, of course, to the same extent be deemed to be
6
Such,
excepted from the covenant which accompanies it.
Such
conveyed, or which as
also, as constitute part of the estate
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.
setts, it
was held
Thus,
that the
in a late case in
rigjjt
Massachu-
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 con8

veyance of the land below, and consequently that the inciSee Fitch v. Seymour, 9 Metcalf,
466, and Ballard v. Ballard Vale
Company, 5 Gray, (Mass.) 458.
i Mitchell v.
Warner, 5 Connect,
Harlow
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-
Thomas, 15 Pick-
tee should erect a house within a
ering, 68.
9 Prescott v.
Williams, 5 Metcalf,
year, which condition was complied

with, the mere existence of the con-
433.
dition was held to be no breach.

" The condition as to the
erection of
497
v.
Cathcart v
Bowman,
Barr,
(Pa.) 319.
4 Giles v.
Dugro, 1 Duer, (N. Y.)
331.
5
In Parish
v.
Whitney, 3 Gray,
a house
made
the estate defeasible,
but this was not an
(Mass.) 516, where a grantee of cer-
estate
would
keep up a partition fence between
them and the adjoining property, and
subsequently sold them with a covenant against incumbrances, it was
held that this stipulation was no
that condition."
tain premises stipulated that he
breach of that covenant, because it

was neither a reservation, nor a con-
incumbrance
within the meaning of the covenant

against incumbrances, nor has the
823
been defeated by breach of
Pettee
;
Hawes, 13 Pickering,
v.
Griswold
v.
Allen, 22 Connect.
89.
^
Dunklee
v.
Wilton Railroad Co.
4 Foster, (N. H.) 489.

8 Prescott v.
Williams, 5 Metcalf,
429, and see Prescott v. White, 21
115
dental right to enter upon the land below to clean out the
stream arid remove obstructions was no breach of such a
strictest limits
exercise
its
covenant, although
was
to be confined within the
compatible with the enjoyment of the princi-
So
pal easement.
in
the
same State
it
was subsequently
held that where an upper and lower dam and mill had been
conveyed by their owner to different parties, the existence
dam
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 conof the lower
1
veyance to the purchaser of the upper mill.
Some conflict of authority has existed, and
as to
still
prevails,
whether the existence of a public road or highway
It has
over the property is a breach of this covenant.
such
a
that
been
mentioned
is no breach of the
way
already
covenant for seizin, inasmuch as, although the public may

have the right of passage, the freehold still remains in the
owner of the
private right of way may certainly

be deemed to be a breach of the covenant against incum4
brances, and the same may perhaps be said of any way
soil.
is not visible and patent, or whose

enjoyment is not
matter of public notoriety. But in Kellogg v. Ingersoll, 5 decided in Massachusetts in 1806, the same rule was extended
In an action on the covenant against into public roads.
which
" of a
cumbrances, the breach assigned was the existence
public town road or way duly laid out by the town of A.
for the use of all its inhabitants,"
which was held
to be
an
incumbrance.
" It
to exercise that
dominion over the land, to which the lawful
is
Dunklee
Pickering, 341
Wilton Railroad Co., supra,
;
same
1
2
3
a legal obstruction to the purchaser,
v.
is
The
to the
effect.
Gary v. Daniels, 8 Metcalf, 466.

See supra, p. 51.
Unless perhaps
it
be a way of
necessity, so as to come within the

principle of Prescott v. Williams, 5
Metcalf, 433, cited supra, p. 114.
4
Supra, p. 113.
Mass. 101, per Parsons, Ch. J.
5 2
116
owner

entitled.
is
a great
damage
An
incurnbrance of this nature
may
damage may
to the purchaser, or the
be
be
The amount of
very inconsiderable, or merely nominal.
is a
of
consideration
for the jury
damages
proper subject
who may
assess
them
but
it
cannot
the
affect
question
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 not

decided
in the case of Whitbeck v. Cook,
directly
yet a
strong doubt was there expressed whether a public road
could properly be deemed an incumbrance ; l while in Pennwhere the question was presented
sylvania,
2
Arthurs,
it
was decided
in the negative.
in Patterson v.
The Court
ex-
surprise that a
pressed
highway should ever have been
imagined an incumbrance within the covenant, and the belief
that it had been the universal understanding of both sellers
its
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
15 Johnson, 483. " It must strike
any one with surprise," said Spencer,
" that a
who
a
i
J.,
person
purchases
farm through which a public road

runs at the time of purchase, and had
so run long before, who must be presumed to have known of the existence of the road, and who chooses
to have it included in his purchase,
turn round on his grantor and
complain that the general covenants
in the deed have been broken by the
existence of what he saw when he
shall
purchased, and what must have enhanced the value of the farm." And
it was added, the case of
Kellogg v.
" has been cited to show
Ingersoll
that the existence of a town road is
a breach of the covenant of incum-
brances.
case
on no
is,
The
answer
first
to that
that the plaintiff here counts

such contract and the second
is,
that
we
should choose to consider
the point further before we consented

to the doctrine of that case."
2 9
Watts, 152, per Kennedy, J.

however, was not an action
brought on a covenant against in-
The
case,
cumbrances, but an action by a vendor for the first instalment of the
purchase-money of certain lots, covenanted to be conveyed clear of all

incumbrances, and the purchaser
claimed a deduction because of a
public road, which passed diagonally
over the ends of the lots, and had
been
in use for thirty years,

instead of a benefit to the holder or
which
owner of the land upon
located, and therefore tends
it is
117
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

its
and the
locality,
quently,
and made himself acquainted with

and condition of it and conse;
highway open and in

he must be taken to have seen it, and to
there be a public road or
if
use upon
it
state
it,
own mind
the price that he was willing to give for the land, with a reference to the road,
either making the price less or more, as he conceived the
have fixed in his

1
road to be injurious or advantageous to the occupation and

The existence of the highenjoyment of the land.
.
way could not be regarded as an incumbrance that came

within the meaning of the parties, when they used the
term
'
incumbrances
tion of covenant
'
.in
their contract
*
;
and hence an
could not be sustained on account of
for a breach of the covenant

against incumbrances."
1
So
in
the
case of Dobbins
v.
2 Jones, (12 Penn. State R.)

" It will
80, the Court said
scarcely
Brown,
be thought that a covenant of warranty extends to an entry by the authorities of the State, in the exercise
of its right of eminent domain. Like

any other covenant, it must be re-
what was supposed to be

the matter in view, and no grantor
who warrants the possession, dreams
that he covenants against the entry
strained to
of the State to
make a
railroad or a
canal, nor can it be a sound interpretation of the covenant that would

make him liable for it," and to the
same
7
effect is Bailey v.
Miltenberger,
Casey, (31 Penn. State R.) 41.
2 " It
be, however," the Court

to say, " that if a
person
may
went on
purchase land without having seen
acit,
upon the representation of the

vendor, where its value is materially
lessened by a public highway being
located upon it, which circumstance
it,
is
concealed or not
made known by
the seller to the purchaser, the latter

might obtain redress by an action on
the case in the nature of a deceit
an action brought against him

for the purchase-money, might have
compensation made, by a deduction
or, in
But it will lie upon him,

before he can claim compensation on
such account, to remove, by the proof
therefrom.
of circumstances at
least,
the pre-
sumption that he knew of the existence of the highway, at the time he

bought, and that the seller concealed
from, or did not disclose it to him."
it
case
somewhat
similar to this
was
decided by Lord Rosslyn in 1800,
118
But whatever weight may be due
to this decision,
it
can-
not he 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
which lessened its value,
Chancellor decreed a specific
across
the
it,
"
performance with costs. He could
not help the purchaser who did not
choose to inquire. It was not a latent defect."
Vesey, 508.
Oldfield
v.
Round, 5
But Lord Manners sub-
sequently observed of this case, in

Elland v. Llandaff, 1 Ball & Beatty,
250, that he believed the bar were
not very well satisfied with this de-
although certainly the purchaser was very negligent. Had he

used ordinary caution he would have
cision,
It
was originally agreed by Penn, at
of this colony, that

"
there should be laid out great roads
"
and as the wild
from city to city
the formation
state of the country
rendered
this
be done otherwise than

very gradually, it became the custom
of the proprietaries, and afterwards
impossible to
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

**
without just
applied to public use
this, infra,
it was
compensation being made,"
held that an Act of the legislature
have been in a great degree based

upon what was considered to be the
to
authorizing a turnpike company
without comlay out and open roads,
of
pensation, was no infringement
" such
the constitution,
compensation
discovered the easement.
(See, as to
Chapter XIII.)
It seems proper to remark that the
opinion in Patterson v. Arthurs seems
to
general understanding as to this point

throughout the State, and the case of
Kellogg
v.
was referred to,

have proceeded upon
Ingersoll
and supposed
to
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 opinion in Patterson
v.
Arthurs,
why such
a general understanding should have

arisen in Pennsylvania, so far as respects public roads in the country.
having been originally made in each

"
(Mcpurchaser's particular grant
3
v.
Clenachan
Curwin, Yeates, 373,)
and from this circumstance, and the
" it had been considered
fact that
;
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 decision.
THE COVENANT AGAINST INCUMBHANCES,

public
highway does
constitute at
119
law a hreach of the cove-
nant against incumbrances.

Some doubt has, moreover, been
Ilcrrirk
313; Ilayiu's
Pritrhard
335
r.
Butler
v.
v.
Maine,
li)
Moore,
Young, 36
Id.
Atkinson, 3 N.
v.
Hamp.
Williams,
Gale,
560;
(Verm.) 742; Parish v. Whitney, 3

(iray, (Mass.) 576 Ilubbard v. Nor;
In
ton, 10 Connect. 431.
this case,
atU'i-
quoting the remarks in Whit-
beck
v.
Cook, supra, p. 116, note,

Williams, Ch. J., said: "Upon the
principle upon which the Judge proceeds the evidence would be unnecessary, because he presumes knowledge in the grantee. He also pre-
at
times
expressed
Redfield, Ch. J., in delivering the

" The
opinion of the Court, said
:
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
must have understood, and

could not really have intended to
indemnify against, with the dry law
parties
sumes that the value of the farm
will
of the case, and to appeal to the
be enhanced by the road. This

be so, or it may not be so. If
may
merely popular opinion, as to the

extent of such a covenant, he might
very readily convince some persons
it is,
damages could be recovif 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
very
ered
little
might excite surprise,
will
it
not ex-
more
surprise that the grantor

should convey these lands, with the
cite
knowledge he must have of these

incumbrances, without making an
exception of them, unless he was
willing to sustain the
might
arise
from them
recollected that this
damages that
?
is
When
it is
the deed of
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 calthe grantor,
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
accustomed to consider
much
that, if an-
other really possess any rights in our

it is, so far forth, an incumbrance upon our title. Whether it
be small or large in amount, whether
larid,
it
be a mortgage or a right to flow
culated to induce a belief that the
a portion or all of the land for a

shorter or longer period during the
year, or to draw water from a well
party grantor could not have intended what he has actually covenanted for."
In the very recent
or spring, or to water cattle at a

brook, or to pass across the land
on foot, or with teams, or to draw
case of Butler
wood
v. Gale, supra, the

subject was carefully considered, and
in winter only across the land,
or to build
and maintain a railwav
120
whether an inchoate right of dower was such an incumhrance as would cause a breach of this covenant. In a case
perpetually, or a highway, is certainly 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
If the question of an incumbrance were to be determined by its
not.
notoriety, or
what
is
the same thing
being known to the purchaser,

it must, to
preserve consistency, be
extended to all incumbrances. And,
by
Mr.
the Massachusetts Circuit,
in
its
in that view, the grantee could not

recover upon this covenant, for paying a mortgage which he knew ex-
the time of his purchase.

But the contrary is perfectly well
isted at
And
Justice Story appeared
the exclusive evidence of the con-
But in such a case, the party

must resort to a court of equity, to
restrain the other party from claiming indemnity against an incumbrance, which was intended to be
excepted from the covenant. And
the same is no doubt true of a covenant against incumbrances so far as
tract.
highways are concerned.

"
Ordinarily a
court
of
equity
would readily suppose the incumbrance of an existing highway, or

railway, or any other known and
notorious right, of a similar character, as a right to draw water from a
spring, exercised
by another
at the
in regard to these
if they existed only in
time of the conveyance, could not

have been intended to be indemni-
to the grantee at the time of purchase, no one could claim that they
fied against, and therefore should

have been excepted from the operation of the covenant, and would, no
established.
rights of
way,
a prior grant, and were not known
did not constitute a breach of the cov-

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
was the intention of the parties to treat it as an

incumbrance, or not. And the same
into this,
whether
it
rule should equally apply to a mortgage which the purchaser agreed to
pay.
But no lawyer
will
contend
such a case, if the grantor

covenants against all incumbrances,
he is not liable to refund the money
that, in
paid upon the mortgage by the grantee.
That
This
is
parties,
is,
he
is
so liable at law.
the written contract of the
and
it
cannot be
set right in
a court of law where the writing
is
doubt, so require the parties to treat

the deed. But a court of law could
not do
without confounding all

between the equity and
this,
distinctions
law jurisdiction upon the subject.
The
case of Patterson
v.
Arthurs,
in
9 Watts, 152, relied
upon
ment by defendant's
counsel, seems
to us to
argu-
have been decided upon this

being no chancery
ground, there
jurisdiction
tent.
It
in that State to
is
the
common
any expractice
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
we
can bo maintained, unless
are prepared to determine questions of law according to the popular

to incline to the opinion that
conclusion might he
and the probable underthe parties, at the time

of
standing
of making contracts, which sounds
absurd to alarm even the
sufficiently
most desperate reformers. The case

of Whitbeck v. Cook, 15 Johns.
483, is not an action upon any covenant against incumbrances, but upon those of seizin and good right to
convey and the Court held a highway no breach of the covenants sued
;
The argument of the Judge

more plausible than sound, when
upon.
he attempts to show that a highway

is no incumbrance upon the land.
It
might,
indeed,
be a
benefit to
might, in some
sections of country, the right (and
the
land,
and
so
the exercise of
it)
and a similar
not,
drawn from some ohservations subse-
opinion,
is
was
it
to cut the
wood
and timber growing upon the land.

But it could scarcely be claimed
that such a right is no incumIf a highway is no incumbrance.
brance, neither would it be if the
whole land were covered by a highway, or a public common. The case
v. Ingersoll, 2 Mass. 97,
directly in point and sustained by
the opinion of Chief Justice Parsons,
husband and wife for an assigment of

dower in land which had been previously
to the defendants
conveyed
by
a former husband of the wife, with

a covenant against incumbrances. In
conveyance she had not joined.

seems to have been contended by
this
It
the
defendants, that
the
covenant
against incumbrances implied a contract on the part of the husband to
procure the wife to release her dower,

and that this must raise a presumption that the
deed actually conveyed
that right. It was properly observed

" it would be danby the Court that
gerous to bolster up imperfect instruments in this way, by conjectures

"
but it was added,
and inferences
;
" I
am
not prepared to admit the

doctrine contended for at the bar,
the
that
brances
is
covenant against incumbroken by the mere exist-
ence of a possible incumbrance.
possibility of
dower
not, within
is
the meaning of the covenant, ^n incumbrance, for that means a settled,
and
the result
of Kellogg
fixed incumbrance,
is
of the Massachusetts authorities on
who never stumbled

is
adopted
in
in the law,
Connecticut,
and
New
Hampshire, and Maine, as the cases

read at the bar show, and we feel
if
has not been mistaken by

me, taking them collectively, they do
this point
not sustain the doctrine
tended
for."
The
now
con-
authorities thus re-
ferred to were Marston
r.
Hobbs, 2
compelled to say that the question

admits of no doubt that a public
highway across land is an incum-
Mass. 433, and Bickford v. Page, Id.

461 but on examination they do not
brance upon the title, the amount of

which may be more or less according
former case
to the circumstances."
i Powell and
wife v. The Manson
and Brimfield Manufacturing Co. 3
Mason, 355.
bill
was
filed
11
by the
fully
bear out
this conclusion.
In the
was merely said by

The defendant did
Parsons, Ch. J.,
not covenant against all interrupit
tions of the plaintiff's possession,
nor
against all possible incumbrances. To

these covenants the breaches should

1
in Ohio it seems to have
quently made in that State, while
been decided that even a right of dower, made perfect by
the death of the husband,

the scope of the covenant.
was not an incumbrance within
be specially assigned, showing the

nature of the incumbrance and interruption complained of. No exas to
press case has been produced
covenants for quiet enjoyment
and
the entries the incumbrance
in
is
"
be deemed an incumbrance, is a queswhich must depend upon the con-
tion
and the circumstances. It is

it is no estate or interest, but
tract
true that
only a possibility.
which
ity
But
it is
a possibil-
may give the wife an
estate,
while
specially alleged in the count
in the latter case, which was an action
upon the happening of a contingent
brought on covenants of good right

to sell, against incumbrances, and of
without any
lawful claims,
warranty against
with a general assignment of each
all
breach by negativing the words of the

covenant, the same learned Judge
observed " The covenant against incumbrances, 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
recover
alleged, the plaintiff cannot
damages for any supposed breach of
these covenants." In the case of Prescott
Trueman, 4 Mass. 629, decided

it was said that every right
v.
goon after,
to
an
interest in the land granted, to
the diminution of
sistent with
its
value, but con-
the passing of the fee,
must be deemed in law an incumbrance
" of this nature
dower, which
plaintiff's
in one third of
In Fuller
a claim of
new
Upon a
right to be acquired.
contract by which one for a certain
sum should engage to transfer land
or procure for another a transfer of
land by a good and indefeasible title,
and incumbrances,
would be reasonable to consider it
free of all claims

it
as the intention of the parties that

sum named the covenantee
for the
should have a complete title free of

actually existing claims of dower.
But we think no general
down
rule can be
determine absolutely
whether such an inchoate right of
laid
to
is
it must
an incumbrance
depend upon many and various circumstances and considerations," and
it was held that under the contract
dower
in question the intention of the parwas merely to give such a title as
ties
partially defeat the
the parties could convey without the

wife's joining to release her dower.
2
Nyce's Executor v. Clark, 17
it."
Wright, 18 Pickerhowever, was not an

action on the covenant against incumbrances, but an executory agreement,
l
the death of her husband,

new act to be done or
by taking a freehold
may
title
is
event,
v.
ing, 405, which,
the Court said (per Shaw, Ch. J.)
"Whether under all circumstances an

inchoate right of dower, \\ln-ic Imband and wife are both living, shall
Ohio, 71.
It
was there averred as a
breach of a general covenant against

incumbrances that the 'widow of a
owner of the premises had, after

her husband's death, filed her petition for dower, which was assigned
and valued at a certain sum, which
prior
the
covenantee
was
compelled
to
123

More
settled
it has been
distinctly and finally
recently, however,
Massachusetts that a right of dower, whether
in
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 covenant. The Supreme Court took a distinction between the effect of the
covenant as expressed in that case
(which was in the short form already
" that the
premises are
clear
of all incumbrances
free and
referred
to,
whatsoever,") and
in
as
expressed
English conveyances, and held that
the former was strictly a covenant in
"
Suppose," said the Court,

"
by contract, A should bind himself, for a consideration to be paid,
presenti.
nor could
Mabson, 20 Id. 137
damages be recovered at law against
the purchaser for a refusal to comply
v.
with the contract
Sumpter, 3 Strobhart, (S. Car.) 81.

one of the most settled principles
of the law of vendor and purchaser,
v.
It is
a general rule, the right of

the latter to a title clear of all claims
that, as
whatsoever, present and future, fixed

or contingent, is one of which he
cannot be deprived but by his own
Judges, given by
avoid the performance of the con-
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 covenants.
The case would be different, however, should he, after making 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
not,
this
proposition.
Equity would
under the circumstances imaginperformance
ed, compel a specific
Ligon, 10 Smedes
&
Marshall, (Miss.) 615; Barnet

Gaines, 8 Alabama, 374; Fuller
v.
Greenwood
v.
v.
Wright, 18 Pick. 4 05; In re Hunter,

1 Edwards' Ch. (N. Y.) 1
Parks v.
Brooks, 16 Alabama, 529 McLemore
;
Noyes, 2
observed
tract
v.
to convey to B by deed containing

covenants of warranty and against
incumbrances, a tract of land could
;
Porter
Greenleaf, (Me.) 26 Jones y. Gardiner, 10 Johns. 266 Bitner y. Brough,

1 Jones, (11 Penn. State
R.) 1 3 7; Polk
acts.
It is
right, as has
by
the
been often
greatest equity
the law and not
springing from the contract of the

It would be affectation to
parties.
The very
cite authority as to this.
put by the Court in
point, however,
Ohio, was thus answered in a recent

" The covecase in Pennsylvania
:
nant was broken by the defendant's
comply with the contract,

was not bound to receive a deed, even with general warrefusal to
for the plaintiff
ranty, unless the wife joined in the

conveyance, extinguishing her con"
Bitner v. Brough, 1
tingent interest
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 dower, he pays the

purchase-money and goes into possession, in which case he will not, of
course, be allowed to rescind the con-
of the right

covenant, which,
and
it
was
said, extends to all adverse claims
on the estate conveyed whereby the same
liens
may
be
defeated in whole or in part, whether the claims or liens be

l
and such would
uncertain and contingent or otherwise ;
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 contradiction 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 covean incumbrance
tract because of such
Barnett
1
Gaines, 8 Alabama, 374.

Shearer v. Ranger, 22 Pickering,
v.
The
But
sum.
in
Henderson
v.
son, supra, the purchaser

entitled to recover what he
Henderwas held
hadj)aid
question was considered to

be finally settled on the authority of
to extinguish a right of dower, although the husband was living at the
Porter
time of the execution of the deed.
447.
26
v. Noyes, 2 Greenleaf, (Me.)

Jones v. Gardiner, 10 Johnson,
266.
2
Porter
v.
diner, supra
1
Fairfield,
Noyes; Jones v. GarDonnell v. Thompson,

(Me.) 170; Smith v.
Cannel, 32 Maine, 126; Carter v.

3 Zabriskie, (N. J.) 273;
Jeter v. Glenn, 9 Richardson's Law
Denman,
Henderson v.
R. (S. Car.) 376
Henderson, 13 Missouri, 152. In a
;
(Blair v.
Rankin, 11 Missouri, 440,) the whole
recent case in Missouri,
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
denied,) such a covenant would
not be broken by the existence of a
it
been comright of dower which had

promised by payment of a certain
The
supposition that an inchoate

of
dower is not an incumbrance
right
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
years as she should live,

and then to his son. The wife pur-
for so
many
chased the inheritance and then sold

with a covenant that the land
it
was discharged of all former incumbrances, and sealed an obligation to

perform that cavenant The wife
then died and the son claimed the
term, and
it
tion of debt
possibility
because
also
it
was adjudged in an acon the covenant that the
was a forfeiture of the land

was an incumbrance. See
Haverington's case, Owen, (28
Eliz.) 7.
125

nant
not broken by the mere existence of a right of
is
dower, whether inchoate or otherwise. But where the form

" are free from all
of the covenant is that the premises
incumbrance," then the covenant is as certainly broken by
the existence at that time of a right of dower, although it
be inchoate and contingent; though at the same time,
if the
purchaser then sue upon the covenant, his damages
would be but nominal. 1 The distinction between a verdict
may
for the defendant,
nal
damages,
account for
is
its
and a verdict for the
with nomi-
plaintiff
apparently so slight a one as easily to

It is
having been sometimes lost sight of.
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
to
the
title or indeed
plaintiff
specify
paramount
refer to
tion.
it
any way, either in the declaration or replicadifferent rule, however, prevails with
respect to
in
the covenant against incumbrances. It is not sufficient that

the plaintiff negative the words of the covenant
generally;
he takes upon himself the responsibility of
the in-
proving
cumbrance, and must

contrary rule
tive.
It is
set
it
forth in
his
would oblige the defendant

not,
declaration.
to
prove a nega-
however, necessary or prudent, either
in
suing upon this covenant, or that for quiet enjoyment or of

1
Donnell
v.
Thomps6n,
1 Fairfield,
(Me.) 170; Carter v. Denman, 3 Zaand see the cases cited

briskie, 273
;
In the same way it has

been held that a prior lease was clearly an incumbrance within the scope of
infra, p. 134.
damages would
Grice
Marston
v.
the covenant, but that if the right to

the rent reserved had passed with the
Bickford
v.
reversion, under the statute of
v.
Hen.
VI1L, or a similar enactment, the
11 *
be
but
nominal;
Scarborough, 2 Spears, (S.

Car.) 249; so in Clark v. Perry, 30
Maine, 148, cited supra, p. 113.
2 Dummer v.
Birch, 1 Comyns, 147 ;
v.
Catlin, 22
Hobbs,
Page,
Id.
Mass. 437;
461
Vermont, 106
Leete, 16 Johns. 122;

Pease, 10 Missouri, 473.
Mills
De
v.
Forest
Shelton
v.
126
warranty, that the incumbrance or paramount title should

be set forth more than substantially, since if it were particularly alleged,
and
being" so alleged
might not have the means of proving
plaintiff'
The damages
2
it
exactly.
should, however, be laid with reasonable
As, according to well-settled authority,
certainty.
1
2 Williams' Sauuders, 181 a,
note 10; Foster v. Piorson, 4 Term
Rep. 617
Young y. Raincock, 7
;
Com. Bench, 310 Duval v. Craig,

2 Wheaton,45 Morgan v. Smith, 11
;
Illinois,
3
were traversed, the
200.
aforesaid
ises
incumbrance
it
is
were not free from all

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
;
De Forest w. Leete, 16 Johns.

122; Funk v. Voneida, 11 Serg. &
Rawle, 109 Tufts v. Adams, 8 Pick.

549 Pillsbury v. Mitchell, 5 WisconThe following form is given
sin, 22.
by Mr. Greenleaf in his Treatise on
;
in extinguishing the said paramount and lawful right and title of
the said E. F. to said premises."
The
" The de244.

Evidence, Vol. 2,
claration by a grantee by deed of
cise.
bargain and sale, against his grantor,

for breach of the covenant of free-
found in 2 Chitty's Pleading, 548559 5 Wentworth's Pleading, 53, 63;
dom from incumbrance by
and in Carter
the exis-
tence of a paramount title, is in this

in a plea of covenant
form
'
for that the
said defendant,
day of
indenture
it
by
deed
his
on the
(if
by
should be so set forth,)
duly executed, acknowledged, and

recorded, and
by
the plaintiff
now
here produced in court, for a valuable consideration therein mention-
above form
however, very conOthers more elaborate will be

is,
v.
Denman,
3 Zabriskie,
a very carefully-drawn declaration where the incumbrance was a

273,
is
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
which the damages have been susIf the covenant be limited

tained.
in
ed, bargained, sold
to the acts of the grantor, the declaration must, of course, show that the
incumbrance was made or suffered by
with the appurtenances to the plain-
murrer
and conveyed to
the plaintiff (here describe the premises), to have and to hold the same
tiff, and his heirs and assigns forever;
and therein among other things, did
covenant with the

said premises
plaintiff that the
were then
free from
incumbrance whatsoever.
Now
all
the
plaintiff in fact says that, at the time
of making the said deed, the prem-
him, otherwise
142.
It
it
will
be bad on de-
Mayo v. Babcock, 40 Maine,

has been recently held in
Connecticut that an amendment of
declaration,
setting forth a
by adding
new and
a count
distinct in-
not objectionable as
is
the
ground of action, within
changing
the statute which authorizes amend-
cumbrance,
127
general rule that the mere existence of the incumhrance,

without more, will entitle the plaintiff to but nominal damages, 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 sustained, or he will not he permitted to give evidence of it on
1
The damage may arise in various ways. The

purchaser may he obliged to extinguish the incumbrance, or
the
he
trial.
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,
2
by so much, diminish the amount coming to the plaintiff'.
ments which do not change the form
Spencer v.
ground of action
or
Howe, 26 Connect. 200.

There are cases where the
tiff
plain-
has extinguished the incumbrance
after suit brought, and been held entitled to recover the amount
paid for
that purpose Kelly
Lord, 1 8 Maine,
Burnet, 10 Ohio, 317;
v.
244 Foote v.
Brooks v. Moody, 20 Pickering, 475
Moseley v. Hunter, 15 Missouri, 322.
In a recent case in the Queen's
;
Bench, the plaintiff declared on the

breach of an agreement to assign a
lease, and alleged that he had been
"
to great
expense amounting to
a large sum of money," &c., in input
Richardson
Bench, 756.
pay."
bury
2
v.
Chasen, 10 Q.
PillsChitty's Pleading, 338

Mitchell, 5 Wisconsin, 22.
;
v.
Haire
Y.) 361.
v. Baker, 1
Selden, (N.
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 purchaser got to be publicly known,

his creditors
becoming anxious
for
their security, pressed him, and the

property was sold at a sacrifice, and
the Court said, " If the plaintiff
had laid the consequential damages

he offered to prove, the evidence
should have been received
but as
On the trial it
vestigating the title.
appeared that he had not paid the bill
of costs until after suit brought, but
they were not laid, and not confessed

by the plea of covenants performed,
was, nevertheless, held that he was

"
entitled to recover.
If," said Lord
If he had
erly overruled.
discharged the mortgage, this ought to have
it
'
a plaintiff chooses to allege in his declaration that he had
Denman,
paid money, he must prove that he

had paid it; but if he merely says
it is
evident the evidence was prop-
been stated
as the actual
gravamen.
So, if by a judicial sale he had sustained, as was alleged, the ultimate
expense,'
damage which he ever could have

sustained, this gracamen ought to
allegation is satisfied by proof

that he has incurred a liability to
have been laid." See also Batchelder v. Sturgis, 3 Gushing, 204.
that he has
the
been 'put
to
128
THE COVENANT AGAINST 1NCUMBRANCES.
known incumbrances of any kind subwhich

the
ject
purchaser agrees to take the property,
these should, for the vendor's
protection, be specially and
from
the
expressly excepted
operation of the covenant, as
In case there are
to
otherwise the fact of their being known to the

purchaser
will, according to the weight of authority, be no bar to his
1
Thus, in an old case where a grantor

recovery upon it.
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

it must be considered as settled that mere
and
followed,
notice of an incumbrance cannot affect the

right of recovery
4
the
It
covenant.
is evident that the
upon
only
presump-
1 In
considering these remarks
upon the subject of the purchaser's
notice, the reader will of course ob-
serve the
distinction
different rules of
between
the
law which govern
some
special covenant against
incumbrance.
this
was no part
of this case that he had actual notice, but if he had, it could make
no difference. The purchaser covspecific
It
the contract before its consummation by the execution of the deed,
enanted against
and those which apply
So let the vendor take

emptor.
care of the covenants he enters into.
after
that
See infra, Chapter XIII.

Witherington, Lutwyche,
317. This reference is to the French
time.
2
Levit
folio
of
11.
In Nelson's translation
704.
(octavo, 1718,) the case

3
Funk
Voneida,
v.
is
1 1
omitted.
Serg.
&
Rawle, 112 Hubbard v. Norton, 10

Grice v. Scarborough,
Connect. 431
2 Spears, (S. Car.) G49; Snyder v.
Lane, 10 Indiana, 424. In the two
;
a plea of the plaintiff's

notice of the incumbrance was held
bad on demurrer. " It is no
latter cases
answer,
to the
purchaser's complaint," said

Duncan, J., in delivering the opinion
in Funk r. Voneida, supra, " to say
it was his
duty to search the record,
and
to
have protected himself by
The
all
incumbrances.
rule as to the vendee
is
Notice of the mortgage would
caveat
make
no difference, as was determined in

Levit v. Witherington." So in Hubbard v. Norton, supra, it was said,
" How can the
plaintiff'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 the nature of the covenant
for seizin ?
If not,
by what
rule can
such knowledge impair a covenant

of warranty against incumbrances?"
*
422
Ilubbard
v.
Norton, 10 Connect.
Sargent v. Guttcrson, 13 N.
Ilamp. 473; Lloyd v. Quiuiby, 5
;

tion to be
drawn from the purchaser's notice
129
is
that he
the incumbrance, or in other

agreed to run the risk of
was intended to be excepted
incumbrance
words, that the
from the operation of the covenant but if this be really the
;
case,
power of the vendor to make it so appear
on the face of the deed, and if he neglect to take this prein the
is
it
caution, he cannot be allowed to repair his
carelessness at
the expense of settled principles.

If, indeed, the agreement of the parties has been improperly or imperfectly set
forth in the conveyance, the familiar jurisdiction of equity
the reformation of deeds on the grounds of fraud and
1
may be successfully invoked by the covenantor, or
in
mistake
omission has been occasioned by fraud, he
if the
may have
a remedy at law by an action on the case in the nature of a

Ohio State R. 265 Taylor v. Gilman, 25 Vermont, 413 Harlow v.
Thomas, 15 Pickering, 70; Grice v.
have chosen as the repository and

evidence of their purpose, and not
Scarborough, 2 Spears, (S. C.) 654
This presumption may,

however, be rebutted in equity by
proof of fraud or mistake in the pre-
Medler
v.
der
Lane, 10
v.
Hiatt, 8 Indiana,
Id.
424
1
;
73
Sny-
Dunn
v.
Alabama, 645
Suydam v.
Jones, 10 Wendell, (N. Y.) 1 85 MorWhite,
on one
side of
it,
in extrinsic facts or
allegations.
paration of the writing, by which its

terms have been varied or made dif-
Selden, (N. Y.)
ferent from what they were intended

and believed to be, which necessarily
360; Busby v. Littlefield, 11 Foster,

(N. H.) 199; Taylor v. Oilman, 25
Vermont, 413 Butler v. Gale, 27 Id.
and that the meaning

of the parties must be sought else-
Smith, 11
v.
gan
Haire
v.
Illinois,
Baker,
200.
"
744.
Where no
question of fraud
involved, the rule with
respect to the admission of parol evidence to vary a written contract is
or mistake
the
same
is
in courts of equity as in
common law. The rule

common sense and reason
those of
one of
is
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
shows that the written contract
is
not
the true one
where.
And
tled that this
it
is
equally well set-
may be done by every
species of evidence, and by oral testimony 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
if
for the detection of the fraud,
Mr.
Hearne, 2
fraud has been committed."
Hare's note
to
Woollam
v.
Leading Cases in Equity, (3d

670.
ed.)
ISO
1
writ of deceit, but every court of law which enforces the
rule that parol evidence is not admissible to control or con-
tradict the effect of written instruments must, in
an action
on the covenant against incumbrances, exclude evidence to
show
that
was the agreement of the
it
parties that the cove-
nant was not to extend to a particular incumbrance not expressly excepted from
1
v.
Sargent
Gutterson,
Hamp. 473; Funk

Serg.
&
its
v.
13
operation.
N.
Voneida, 11
llawle, 112.
there was
any mistake or fraud com-
mitted in introducing the covenant

of general warranty into the deed
;
Townsend v. Weld, 8 Mass. 146

Harlow v. Thomas, 15 Pickering, 70;
the evidence therefore
Donnell
one, nor the purpose of correcting

the other.
The evidence offered
v.
Thompson,
Fairfield,
(Me.) 177 Batchelder v. Sturgis, 3

Collingwood
Gushing, (Mass.) 203
v. Irwin, 3 Watts, (Pa.) 306 McKen;
nan
dam
185
Penn. 417; Suyv. Jones, 10 Wendell, (N. Y.)

Long v. Moler, 5 Ohio State R.
v.
Doughman,
v. Scarborough, 2 Spears,
649.
In Collingwood v. Ir(S. Car.)
win, supra, the covenantor offered to
271
Grice
show that at the time of the execution

of the deed it was agreed that the assignment of a certain j udgment should
be the only security of the covenantee, and that the former was not to
be held liable on his covenant. But
the Court said, "It
avoid
seeing
that
is
to
impossible to
admit
such
proof would not only be admitting

evidence to contradict, but to alter
change most materially the

character and effect of the deed.
Instead of being a deed with cove-
and
nant of general warranty as it purthe

ports on its face, it would, by
operation of the evidence proposed
be given, become a deed without

any engagement whatever on the
to
part of the grantor for the goodness

of the title. It is not pretended that
is
not offered
with a view to obtain relief from the
then being oral,
falls
the general rule that
directly within
it
shall not
be
admitted to contradict, alter or vary

the written agreement between the
The Court was thereparties to it.
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 converse 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 intended to be included within it, and it

has consequently been held that an
action of assumpsit cannot be sustained upon a parol promise alleged
to have been made at the execution
of a deed containing covenants limited to the acts of the grantor where-
by the latter agreed to discharge an

incumbrance not created by himself,
and therefore not within the cove-
THE COVENANT AGAINST INCUMHRANCES.
131
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
It has,
nant
Howe
Walker, 4
v.
(Mass:) tS18; Blair

nio,
v.
Gray,
Duncan, 5 De-
(N. Y.) 196.

is, however, a class of cases
There
as
were known
to the
purchaser at
the time of the contract, and which

he agreed to pay or discharge himself,
in addition to, or as part of the
(which the student will find collected

in the note to Woollam v. Hearne, 2
Lead. Cas. in Equity, 670), which,
consideration-money from him to the
while professing to observe the rule

which prohibits the introduction of
consideration paid for the land,

think such facts may be given
parol evidence to contradict or alter

written instruments, still recognize
evidence
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 understanding cannot be violated with-
vendor; and where the question is,

as in this case, what was the true
without
in
contradicting the terms of the written 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 payment of a note given for the purchase
money
and
in the
case of Medler
classed the recent case in Indiana, of
adhere to Allen
Allen
"the rule of decision on
i?.
Smith, 12; S. C.
Lee,
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-
was unnecessary to mention it in the deed, as he was about

to undertake to keep the tenant for
life and wished to have the whole
tract,
but
it
in himself.
Smith, J., in delivering the opinion of the Court, said,
title
somewhat
more broadly than was
necessary,
"A
general covenant of
warranty does not, at least conclusively, extend to such incuinbrances
in
any manner
out a breach of good faith. With

ihese cases must, it would seem, be
Carter, 58, where evidence was held

admissible to show that at the time
we
v.
subsequent
Hiatt, 8 Indiana,
Court, while professing to

v. Lee, said that
173, the
as evinced
by various
this subject,
authorities,
is
some extent unsettled. None of

these however sustain the position
that mere notice to the vendee, at the
to
time he receives his deed, of an existing incumbrance, excludes it from

the operation of an express covenant
against incumbrances."
Harlowu. Thomas, 15 Pickering,

Keith v. Day, 15 Vermont, 670;
Jacques v. Eslcr,*3 Green's Ch. (N.
Long v. Moler, 5 Ohio
J.) 463
State R. 274.
"It is true," said
the Court in that case, " there are
cases which countenance the doctrine
that known incumbrances are presumed to be excepted from the oper1
70
ation of the covenant.
But a major-
that
ity of the Court are of opinion
132
some cases the vendor may be expected to discharge

1
out of the purchase-money.
For all these reasons, therefore, whenever the contract is
that in
it
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
obtained
liable.
The same
a sealed instrument to that
if
result
effect
would be
were executed
cotemporaneously.
the weight of reason and authority
alike are clearly the other way.
Rawle on Covenants for Title, p.

149.
Nothing is more common than
for parties to make and accept cove-
withstanding,' &c.
That part of the
covenant which deserves the most

attention
is
the
exception,
if
any,
knowl-
against incumbrances : such exceptions, as often as there are any, and

the incumbrances there noticed, as
edge of existing incumbrancts, the

covenantor relying on his ability to
far as they are material to the title,

should be stated in the words of
discharge them, and the covenantee

which the covenant
the covenant, and at least so full as

to show the nature and extent of
and the fact of a purchaser

having notice of an incumbrance, is
those
nants of this kind with a
full
in the security
affords
incumbrances."
Preston
on
the very reason for his taking a covenant, within whose scope it is in-
Abstracts of Title, Vol. 1, p. 153.

In Foster v. Woods, 15 Mass. 116,
where the conveyance was made,
cluded."
"
excepting from the covenants
Grice
Scarborough, 2 Spears,
(S. Car.) 654; Dunn v. White, 1
Skinner v. Starner,
Alabama, 645
v.

2 Potter v.
Taylor, 6 Vermont, 676
Van Rensellaer v. Kearney, 1 1 How;
Sanbornv. Woodman,
Mr. Preston,
to
which therefore came within the ex-
Foster
v.
Woods,
5 Gushing, (Mass.) 36.

in
his
duly recorded," evidence was

held admissible on the part of the
defendant to show that a recorded
are
deed from the intestate, absolute on

face, was in fact accompanied
with an unrecorded defeasance, so
that the two constituted a mortgage,
ard, (U. S.) R. 321
16 Mass. 116
all
mortgages made by defendant's intestate in his lifetime, and which
practical
instructions
the preparation of abtracts of
as
title,
after suggesting that in general they

need only set forth that there are
" the usual covenants for

" Sometimes the
title,"
adds
covenants are ex-
pressed more fully, by showing iliextent of the covenant and conse-
quently introducing the clause
not-
its
ception in the covenant.

3
Brown
v.
28
Staples,
Maine,
497; Robinson v. Bakewell, 1 Casey,

(25 Penn. State R.) 424 Morgan v.
In CopeSmith, 11 Illinois, 201.
;
v.
Copeland, 30 Maine, 499,
agreement, though reduced to
writing, seems to have been un-
land
the
133

It is true that there
seems
to
have been thought a neces-
of excepting the incumbrance, as

sity for this precaution
of the purchaser as that of the vendor,
well on the
part
Lord
for
1
Leonards has observed, "
St.
sometimes hap-
It
pens that a purchaser consents to take a defective

relying for his security upon the vendor's covenant.
Butler remarks that where this
title,
Mr.
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
is
be understood to have been the agreement of the purchaser

it, and that the covenants for the
to take the title subject to
should not extend to warrant
against this particular

It certainly has been very often argued that the
defect."
defect being known, it was understood that the covenants
title
it
were not
to
extend to
In Watts
sealed.
v.
it
but
Wellman,
was
incumbrance was, or was not written, but

as he demurred to the plea which set
up such an agreement in bar, he of
plaintiff
to discharge the
course admitted
in
it
Property,
to
its
is
said,
covenant against
without
generally,
" It
is
sufficient
incumbrances
any
particular
specification, unless the estate is sub-
ject to
it
a.
seems,
rely
known incumbrance
if
then,
the purchaser intend to
upon a vendor's covenants, they
should be
see
how
such
Savage v. Whithead is the case

by Lord St. Leonards as the
cited
authority for the observation in the

text.
That case (reported 3 Chan.
" Sir
is as follows
Rep. 14),
Thomas
Savage, the plaintiff's father, sold

land to the defendant's ancestors,
and covenanted
existence.
So
Hughes' Practice of Sales of Real
2
N.
458, the report does not state

whether the agreement by which the
Hamp.
is difficult to
it
made
that they were free

of incumbrances, and gave a collateral security on other lands also;
and the purchaser having entered on

the security for damnifications, the
was to have the collateral secur-
bill
ity
reconveyed
whereto the defend-
ants having set forth divers incumbrances on the purchased land and
(inter alia)
a lease
of twenty-one
expressly to extend
to such incumbrance, otherwise it
years of parcel thereof, the plaintiff

and at the hearreplied generally
may be presumed
ing, a
that he took the
reconveyance was decreed on
estate subject to such incumbrance,
satisfaction of the damnification
and
upon the report
this
should be added at the end
of the covenant, as follows: 'and particularly of, from and against a certain quit rent, &c.'
"
Vol.
2, p.
205,
12
and
ed against
no incumbrance, because they had
proved the purchaser had notice of
it
(2d.ed. 1850).
the plaintiff exceptthe lease, that it was
at the time of the purchase,
where-

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
The covenant
as general propositions, to be very simple.
being treated as a covenant of indemnity, it is settled that if
the incumbrance has inflicted no actual injury upon the
and he has paid nothing towards removing or extinguishing it, he can obtain but nominal damages, as he is
plaintiff,
not allowed to recover a certain compensation for running

1
the risk of an uncertain injury.
Thus in Delavergne v.
to the defendants insisted that the
William Grant, however, observed
notice was not issue in the case
in Ogilbie v.
Lord Keeper Bridgman

conclude the infant by a
yet
would not
;
her
slip of
counsel, in not putting it in issue upon the replication, but ordered a
whether the purchaser agreed

to take the lands, charged with the
The eminent reputation of
lease."
Sir Orlando Bridgman as a commontrial
law Judge, gives great weight to any

decision he is reputed to have made
in that capacity.
lor his reputation
But
as a Chancel-
was
less
eminent.
Roger North in writing of him said,

" he was timorous to an
impotence,
and that not mended by his great
age.
please
He
labored
everybody
very much
...
if
the
to
case
admitted of divers doubts, which the

lawyers call points, he never would
give all on one side, but either party
621,
"Even
Foljambe, 3 Merivale,
in
cases
where there
has been a covenant against incumbrances, it has been sometimes
whether that
would extend to protect a
against incumbrances of
had express notice." This
doubted
covenant
purchaser
which he
was probably in reference to the case of Savage
v.
Whithead.
Vane
v.
Eq. Rep.
7,
v.
Mayo,
Randell
Lord Barnard, Gilbert's

per Lord Cowper Bean
v.
Greenleaf, (Me.) 94
Mallet, 14 Maine, 51
Moore, 19 Id. 313 Clark

y.
Read v. Pierce,
Perry, 30 Id. 151
36 Id. 455 Richardson y. Dorr, 5
Herricfc
v.
Vermont, 20
Willson v. Willson, 5
;
Foster, (N. H.) 235; Davis v. Lyman, 6 Connect. 255 ; Prescott t>.
Trueman, 4 Mass. 627
Wyman
v.
should have somewhat to go away

with;" 3 Campbell's Lives of the
Ballard, 12 Id. 304 ; Jenkins v. Hopkins, 8 Pickering, 348 Leffingwell v.
Chancellors, 231. This case seems

an example of the criticism, and is
Elliot, Id.
pra, p. 101)
not supported by any other authority

that I have been able to find.
Sir
Brooks y. Moody, 20 Id. 476 Coinings

v. Little, 24 Id. 269
Pitcher v. Liv-
457
;
(S. C. 10 Id. 204, su-
Tufts
y.
Adams,
;
Id. 549;
135
the plaintiff proved the existence of several mortgages on the premises conveyed, on which he had paid the
sum of $1,165.44, and the sum of $835.30 still remained
1
Norris,
due on the mortgages and unpaid hy the plaintiff, but for

2
which he claimed to recover, hut the Court held that judg-
ment should he entered only for the amount which he had

"If the plaintiff when he sues on a covenant
actually paid.
the incumbrance, he is
against incurnbrances has extinguished
But if he has
entitled to recover the price he has paid for it.
not extinguished it, but it is still an outstanding incumbrance,
he ought not to recover

the value of an incumbrance on a contingency where he
damages are but nominal,
his
for
This is the reasonable rule;

never be disturbed by it.
for if he was to recover the value of an outstanding mortgage,
may
the mortgagee might still resort to the defendant on his personal obligation and compel him to pay it ; arid if the pur-
chaser feels the inconvenience of existing incumbrances, and

ingston, 4 Johns. 10
Delavergne v.
v. Dean, 13
Norris, 7 Id. 358; Hall
105
Stanard v. Eldridge, 16 Id.

Baldwin ?;. Munn, 2 Wendell,
405; Stewart v. Drake, 4 Halsted,
(N. J.) 141 Patterson v. Stewart, 6
Watts & Serg. 528 Foote v. Burnett,
10 Ohio, 317 Whisler v. Hicks, 5
Blackford, (Ind.) 102 Smith v. Ack-
Id.
254
ennan, Id. 541 Pomeroy v. Burnett,

8 Id. 143
Pillsbury v. Mitchell, 5
;
Wisconsin, 21, where the text was

In Reasoner v. Edmondson, 5
cited.
Indiana, 393, where
paramount
mortgage had been foreclosed,
this
course of decision was carried so far
See passim as to covenants of

indemnity generally, Chace v. Hinman, 8 Wendell, (N. Y.) 452 Rocked."
afeller
618,
v.
Donelly, 8 Cowen, (N. Y.)
questioned
Blackmar,
in
Aberdeen
6 Hill, (N. Y.)
324
v.
Gil-
bert
v. Wiman, 1 Comstock, (N.

Y.)
563; Jeffers v, Johnson, 1 Zabriskie,
(N. J.) 73. In the first of these cases
covenant
the
was
for
indemnity
against liability, which distinguishes

it therefore from the others.
The
student
will,
difference
of course, observe the

of
between a covenant
indemnity against incumbrances, and

a covenant to discharge of incum-
as to hold that although "the mortgage did constitute a breach of the

covenant, that the property was unin-
brances.
cumbered, yet for this breach only

nominal damages were recoverable
ant was insolvent and unable to pay

any part of the mortgages,
till
after the purchaser has
been
evict-
2 it
See infra,
p. 153.
Johnson, 358.
a lso appeared that the defend-
136
the hazard of Waiting until he is evicted, he

may go and
1
the
and
then
to
his
resort
covenant."
The
satisfy
mortgage
rule that nominal
damages only are
to he
recovered for a
breach
of the covenant against incummerely

brances is supported by the entire weight of authority. 2
When, however, the incumbrance has inflicted an actual
technical
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
that the
servitude, an existing lease, or the like,

damages are to be estimated by the
said
jury according
to the injury arising
The same
is
it
suggestion,
from
its
that the
holder of the incumbrance might resort to other remedies against the
covenantor 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, 474. In Stan;
continuance.
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-
Eldridge, 16 Johnson, 254, it

was said, "It is supposed that this
fence as against the covenant of warranty, of which there was no breach

until eviction, and therefore no ex-
principle is not applicable here, for

it is stated in the case that no bond
missioner
ard
v.
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 covenant against incumbrances the cove-
nantee must pay and satisfy them."

2
See the cases cited in note, supra,
p.
134.
good
course of decision
y.
illustration of this
is
afforded in
Read
Pierce, 36 Maine, 460, where the de-
isting claim provable before the
Bush
v.
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
Harlow
69
v.
Batchelder
v.
seizin, of right to
Foster, (N. H.) 329
Pickering,
Sturgis, 3 Gushing,
Hubbard
(Mass.) 205
Connect. 422
in-
15
Thomas,
fendant had conveyed to the plaint ill'

certain premises with covenants for
convey, against
com-
of bankruptcy
(S. P.
Cooper, 26 Mississippi, 612) ;
Willson
;
v.
v.
Norton, 10
Willson, 5
Giles
v.
Dugro,

But while
Thus,
application.
be easy to lay
may
it
propositions, there
down
137
these
general
seems considerable
difficulty as to their
New
York, the purchaser
in a case
in
evicted by the holder of an unexpired term of years,

and it was held that " the extent of that term, and the
was
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
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 rethis rule
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 practical, it seems impossible to establish any more precise general
was held
that
the diminished value of the land by reason of the lease

not the measure of damages, unless the estate were
was
rule in this class of cases,"
and
1 Duer,
(N. Y.) 335 see Dexter v.
Manley, 4 Gushing, (Mass.) 14, infra,
;
In the recent case of Mills
p. 142.
Catlin, 22
v.
Vermont, 106, the incum-
brance consisted of a
life
estate in the
premisesof which the purchaser found

the holder in possession, and it was
held not to have been error to admit
in
evidence certain tables of calcula-
tion
as
to the
duration of
life,
on
which the jury could base their estimate of the value of the incumbrance.
1
Rickert
423.
u.
Snyder, 9
Wendell,
The jury
had, on the trial,

been directed to assess the damages
by the consideration-money paid
12*
for
in that case
it
pur-
that part from which the plaintiff had

been evicted, which the Supreme
Court said would have been correct
if a breach of the covenant for seizin
had been proved, but that the evidence went to the possession and not
to the right of property.
There was
not, in fact, a covenant against in-
cumbrances
in the deed, the covenants being for quiet enjoyment and

of warranty, but the case is here in-
troduced as illustrative of the principle.

2 Batchelder v.
Sturgis, 3
(Mass.) 201.
Cushing,
138
chased for the purpose of a re-sale, and that fact were communicated or known tp the grantor.
If the character of the
incumbrance be such as
to
admit
of removal, the plaintiff is entitled to recover the amount

which he has fairly and reasonably paid for its extinguishment. 1
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
which, on covenants for quiet enjoyment and of warranty,
the limit of damages is the same as on the covenant for
in
This was decided
seizin.
the
application
2
Lockwood, where
was one of some hardship.
Dimmick
in
of the rule
v.
The premises had been conveyed by two
tenants in
common
He made
250.
to the plaintiff, in consideration of
im-
provements which increased the value of the land to $,000,

and afterwards one half of this property was sold under an
execution upon a judgment for $3,344, which was held
one
against
of
the
brought an action
tenants
in
common.
The
plaintiff
covenant against incumbrances.

The defendants in their plea tendered the sum of $125,
-on
his
the consideration-money paid, and contended

The plaintiff
must be the limit of damages.
half of
his
that
this
urged that he was entitled

1
Reed
Willson
235;
255;
150;
v.
to recover
v. Pierce, 36 Maine, 455

Davis
v.
6 Connect.
Lyman,
Wyman v. Brigden, 4 Mass.

Wyman v. Ballard, 12 Id. 304;
Chapel
Adams,
Tufts v.
Bull, 17 Id. 221
8 Pickering, (Mass.) 549
v.
475; ComBatchelder
v.
Sturgis, 3 Gushing, (Mass.) 205
Waldo v. Long, 7 Johns. 173 Dela-
Brooks
ings
v.
Moody, 20
v. Little,
Id.
24 Id. 266
Hall v.
vcrgne v. Norris, Id. 858
Dean, 13 Id. 105; Stanard v. El;
an amount
sufficient
dridge, 16 Id. 254; Baldwin v. Munn,

2 Wendell, (N. Y.) 405
Stewart v.
;
Drake, 4 Halsted, (N.J.) 141 Funk

v. Voneida, 11
Rawle, (Pa.)
Serg.
112; Brown v. Brodhead, 3 Whar;
ton, (Pa.) 104;
Cane v. Allen,
Dow,
Hender296, per Lord Redesdale

son v. Henderson, 13 Missouri, 162;
;
Snyder v. Lane, 10 Indiana, -l'_M.

to payment of the incumbrance
As
after suit brought,

note.
2 10
sot-
aitpra, p. 127,
139
indemnify him for the damages he had sustained, and

inasmuch as, under all the authorities which have heen
to
that
quoted ahove, 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 consideration
It
money.
was
found
by the Court that no similar case was to be

Those arising on covenants against
said
the books.
in
incumbrances had been cases where the incumbrance was

than the consideration-money, and in them there was
less
little
difficulty.
But
that
it
had been often and conclusively
purchaser could not increase his damages by

reason of improvements, which the plaintiff would indirectly
" It
seek to do by the doctrine contended for.
may be
settled that a
asked," said Savage, Ch. J., who delivered the opinion,

" to what extent
may a purchaser go under such circumstances in creating a claim against his vendor 1
Suppose
the
plaintiff',
had paid $3,000,

be reimbursed, he would bring
instead of building a house,
and brought
this suit to
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
two persons are tenants in common

of an acre of ground worth $100, one a wealthy man and
real state of this case,
the other insolvent
being tenants in common, they unite in

can the purchaser
a conveyance with the usual covenants
pay a
of $3,34*4, a debt due by the insolvent, and

from his tenants in common, who may have no
lien
recover
it
I state this case hypothetiearthly connection with him ]

the plaintiff'
cally, to show how the rule contended for by
may work
Among
the height of injustice to a mere stranger.

all the cases cited, there is none in our own Court
14-0
where the purchaser has been permitted
to recover
There
the consideration, and interest, and costs.
beyond
none
is
in Massachusetts, where under the covenant against incurnbrances the purchaser has recovered any more, though
there the rule allows a recovery for the value at the time of
All the reasons of our
eviction.
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
to
principles
be
established
may
lead
to
great
in-
justice."
subsequent case in Ohio was decided upon the same

2
The consideration paid was $1,020, and the

had
purchaser
extinguished an incumbrance amounting to
$1,773.9<5, which sum he claimed as his measure of damaprinciple.
ges.
But
it
was
said
" If
by the Court,
covenant, a recovery to
be correct,
this
much
then upon
greater
amount may be had than upon the covenant of warranty,
which is ever considered the principal covenant in a deed.
this
If,
in
the
present
action,
he can recover
this
amount with interest he recovers more than he would

There would
have done had he entirely lost the land.
seem
to be
some inconsistency
then, to the case of
" After
full
Dimmick
v.
Lockwood,
was
it
consideration and careful examination,
been led to the conclusion, that the law

this case.
After referring,
in this."
is
as laid
That the true measure of damages
in
said
we have
down in
an action
for the breach of the covenant against incumbrances, is the
amount paid to remove the incumbrance, with interest, provided the same do not exceed the purchase-money and inBut in no case can a purchaser recover greater
terest.
l In Cox v.
Henry, 8 Casey, (32
Penn. State R.) 21, this decision was
approved. In Willson v. Willson, 5
Foster, (N. H.) 229, it was referred
to with approbation, but the point
was not decided,

2 Foote v.
Burnet, 10 Ohio, 334.
14*1
the breach of any of the ordinary covenants

for a breach of the covenant of warthan
deed,
damages
in his
for
ranty."
It
seems
Dimmick
to
v.
have been correctly stated in the opinion in
Lockwood,
had been, at that time, no

Massachusetts where the purchaser
that there
case actually decided in

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 be)tond the
consideration-money and up to the value of the land, and
however this might be in case the covenant against incumbrances were the only one in the conveyance, there would
be
little
doubt that
if it
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
1
allowance for improvements.
Norton v. Babcock, 3 Metcalf,

(Mass.) 519; (see this case, infra, p.
149) Elder v. True, 32 Maine, 104.
1
Mr. Sedgwick, in that part of his

" Treatise on the Measure of Dam"
which refers to these coveages
nants, (p. 187,) considered the case
of Dimmick v. Lockwood to be open
to
much
observation,
and greatly
to
diminish the value of the covenant

"
agninst incumbrances.
By surrendering the property to the previous
ed.
case may, however, easily be
imagined, where the incumbrance is

well known, where the considerationa fair representative of the
the
incumbrance,
money
is
value
without
where the grantor agrees to remove

and the covenant against incum-
it,
brances
is inserted for the

express
of
making it certain that he
purpose
will do so.
In such a case, the application of this principle would be
extremely inequitable.
For
it
must
incumbrance, a valid claim may always be created, to the extent of the
not be forgotten that the severity of

the arbitrary rule which declares the
consideration-money, and to ihis it

seems the .recovery under this cove-
consideration named in the deed to

be the actual price paid, is but little
mitigated by the permission given to
nant
is
in every instance to be limit-
When
the incumbrance
is
such as entirely to defeat the

have not caused an
estate conveyed, but its consequences

the parties to contradict
the
breach assigned of the implied covenant was, that the defendant had so
lapse of a few years, will generally

be difficult of production, in many
cases impossible, and the mere bur-
room, as to hinder the plaintiff in

the manufacture of pails and the
Such
proof.
it
den of proof
is
It
responsibility."
by parol
after
evidence,
always a serious
may be
observed,
however, that when the incumbrance

is
greater- than the consideration-
money, the damage to the purchaser

can never exceed the amount of the
latter, unless, as in Dimmick v. Lockwood, he has made valuable improvements, or the land has increased in
in* both of which cases, we
value
;
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 exists.
The
case
of
Dexter
4 Gushing, (Mass.) 14,
v.
Manley,
may be
used the machinery in the reserved
proved that after the lease,

the defendant commenced in this
plaintiff
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 defendant, 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
of the rent reserved,

which was the painting of part of the
at
the
house.
rate
The Court below
instructed
to in this connection, as,

the
covenant sued upon was
though
the jury that the words of leasing

did import a covenant for quiet enjoyment, that the breach was suffi-
an implied covenant
ciently set forth,
re-
ferred
for quiet enjoy-
and
that the defend-
ment, yet the assessment of damages

was the same as if it had been a cov-
ant had a right, by the reservation,

to use the saw which had been before

The
plaintiff had been the owner of a
used in the room reserved, to carry

on any proper business to which the
manufactory for making
pails, which,
the tools and ma-
property so reserved was adapted,

and that the previous mode of using
chinery therein, he sold to the de-
power reserved in the excepted

room, was one means of ascertaining
the reasonable limitation of the right
together with
fendant,
all
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 cerThe
tain painting on the premises.
the
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 measured
that
where the lessee was en-
143
eviction within the scope of the covenant of warranty, the

are measured hy the consideration-money and
damages
deprived of the use of the
tirely
property leased, the rule of
damages
or what
was the value of the lease,

the property would fairly rent
be limited to one
dollar.
(See Haire
v.
Selden, (N. \.) 361). This

therefore, peculiarly a case
1
Baker,
was,
for;
where the question was what direct
that on this subject, the rent reserved, the amount of the business, and
damage the plaintiff had sustained by

it, and it seems to us that there was
the profits of it, were proper evidence to be considered in estimating
no error in the Court in admitting the

modes of estimating the damage and
the damages that there being only

a partial disturbance of the plaintiff
in the enjoyment of the lease, he was
the
entitled only to a just proportion of

the value of the lease according to
evidence tending
to
establish
some approximation to it, which

were allowed in the present case."
In Kelly v. The Dutch Church of
the extent of the injury, and that the

jury should take into consideration
Schenectady, 2 Hill, (N. Y.) 116, the

Court said, however, " Under a general covenant for quiet enjoyment,
the fact that the property was leased

with the restriction expressed. Upon
the rule of damages is settled in relation to a purchaser who has been
writ of error, this charge was held to

be correct, the Supreme Court say" This is not a case in which the
ing,
law fixes any precise rule of dam-
evicted.
He
sideration
money paid
recovers back the confor the
land,
with interest on the amotmt for a
the
period not exceeding six years. The

price agreed upon by the parties is
taken as the true value of the land,
rent of the premises had been fixed

and certain.
But in this case the
without any reference to the actual

value.
Following that analogy, the
This
of the
rents reserved in a lease, where no

other consideration is paid, must be
premises, for a short period, seems to

have been one element in the adjust-
regarded as a just equivalent for the

use of the demised premises. The
ages
being a case of partial disturb-
ance and interruption, even
if
difficulty is greatly increased.
partial
lease
of
a portion
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
have agreed so to consider it.

In case of eviction the rent ceases,
parties
and the lessee is relieved from a burden which must be deemed equal to
the benefit which he would have de-
be put
in possession; and in what

condition the house should be put
rived from the continued enjoyment

of the property. Having lost noth-
and
ing he can recover no damages. He

is, however, entitled to the costs he
by painting. Suppose, theredemise had

been made on the nominal reservation of the rent of one dollar, it
would not be reasonable to hold, that
left
fore, that this particular
the
damage
for a disturbance
must
has been put to; and as he is answerable to the true owner for the
mesne
profits of the land for a period
not exceeding six years, he
may
re-
144

1
Thus
Chapel v. Bull, while proceedings in

were
partition
pending between tenants in common, one of
interest.
them
The
in
sold his purpart, covenanting against incumhrances.

sheriff having returned to the writ of partition that
premises could not he divided without spoiling the

whole, and none of the parties taking the land at its appraisement, it was, under an order of sale, exposed to sherthe
and a deed made
iff's sale
circumstances,
it
was held
Under these
was a manifest breach
to the purchaser.
that there
of the covenant against incumhrances, and that the measure

of damages was the whole consideration-money and interest.
This case, therefore, decided, as has been subsequently said, 3
" on a breach of the covenant
that
where the incumbrance was changed into a title adverse
and
indefeasible, the plaintiff
was
entitled
to recover
money he had paid for the land, with interest.
For
in
the
such
conveyed is entirely defeated, and the purchaser cannot remove the incumbrance, nor can he enter
case, the estate
upon and enjoy the land
him
and
it
would be
idle to require
he might be entitled to his

the
the
for
breach
of
covenant against incumdamages
brances.
Indeed, such a state of facts comes very near
to purchase
it,
in order that
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.
between cases of
gage,
And
this kind,
attachment,
or
rights
If this rule will not always
of
286.
v.
Bull, 17 Mass. 221;
may
Barrett
Willson
2 17
3
349.
v.
be
Pickering,
be the case
where there has been an actual
often said in relation to a purchaser,

he should protect himself by ivquir-
Chapel
Hopkins, 8
v.
A fortiori, this will
349.
tion
ing other covenants."
which
dower,
Jenkins
aflbrd a sufficient indemnity to the

lessee, I can only say, as has been
a difference
and the common cases of mort-
cover back the rent he has paid during that time, with the interest
thereon.
constitutes
this
evic-
v.
Porter, infra, p. 145;

Mass. 221.
Jenkins
t>.
Hopkins, 8 Pickering,

removed by the grantee, and the amount of
his
damages
The principle which constitutes

ascertained in that way.
a difference 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
enjoyment, and may remain so ;

whereas, in the former case, and that now before us, the
estate, is undisturbed in the
in possession,
plaintiff is not
nor can he enter without being

has the title, and who is pre-
a trespasser upon one who

sumed to be in possession according to his title."
A fortiori, 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 consideration
power
amount
money be
affected
by the
fact that
it
was
in
his
purchase or extinguish the incumbrance for an

less than the
consideration-money, nor even that he
to
had refused so
to
purchase or extinguish
it.
" It
is
true,"
case in Ohio, " the grantee, while

said the Court
the prior mortgage remained only an incumbrance,
might
in a late
Thus in Wyman v. Brigden, 4

Mass. 150, the covenantee had defeated the levy of the covenantor's
l
by paying the amount of

it was held that he
creditor,
the judgment, and
was entitled
to recover as
damages
the amount thus paid.
Waldo
v.
173; Barrett
143
Stewart
;
Long,
v.
v.
Porter,
Johnson,
14 Mass,
Drake, 4 Halsted,
(N. J.) 142.

3 Stewart v.
Drake, 4 Halsted, (N.
Miller v. Halsey, 2 Green,
J.) 143
ton
v. Babcock, 2
Metcalf, (Mass.)
510; Lloyd v. Quiinby, 5 Ohio State
R. 265. " If the incumbrance," said
the Court in Chapel ?>. Bull, " went

only to diminish the value, the amount
of the diminution would be the measure, or the sum paid for extinguishing the incumbrance, if reasonable
and the grantee had chosen to ex;
tinguish it
land.
But
tiff's
by purchasing of Kirkit
power
not being in the plain-
to
compel Kirkland
to
True, 32 Maine,
neither should he be
obliged to
buy, and if he has been deprived of
104, (see this case, infra, p. 148);

Chapel v. Bull, 17 Mass. 221 ; Nor-
the fruits of his bargain, he should

be restored to the price he paid."
(N. J.) 48
Elder
v.
13
sell,
146
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,
no way bound to do
that the grantor would do
was
in
bound
to
do
covenant."
The
it,
it,
it,
and had a right
to expect
while he, the grantor, was
bound by the obligations of
his express
laws in Massachusetts and some of the other
local
New
England States regulating the foreclosure of mortgages provide, however, that even after entry by the mortgagee upon the land for that purpose it may still be redeemed,
within three years, by payment of the mortgage debt and
and hence, although the purchaser may have been
costs
;
actually evicted
by the mortgagee, yet
if
the latter hold the
or if it be
possession only under a conditional judgment,
otherwise defeasible by payment of the amount due on the
mortgage with costs, &c., the damages will be limited to

in other words, so long as the purchaser has
that amount
;
a legal right to regain the estate by payment of a cer2

as othertain amount, he can recover no greater damages ;
wise he might recover the consideration-money, and then
still
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
obtain the estate
" But it
put in possession by a writ of habere facias.
"
that the
does not necessarily follow," said the Court,
damages should be assessed to the value of the land be;
Lloyd v. Quimby, supra.

would seem to be also the law
2 It
382
Foss
(Me.) 390.
v.
Stickney, 5 Greenleaf,
This was one of the
that although a right of redemption

may exist, yet that if the incumbrance
points urged in the argument for the

1
plaintiff in Blanchard v. Ellis,
binds several properties, a party has

no right to redeem less than the
the
whole
Bond
v.
Bond, 2 Pickering,
Gray, (Mass.) 199, supra, p. 87, with

MSS. brief of which I have been
kindly furnished by the reporter.
147
open, and the plaintiff may

himself to possesdischarge this incumbrance, and restore
the debt and interest and the costs of suit.
sion
cause the right of redemption
is
by paying
Indeed, there seems to be no reason why, on such an eviction, which, at the election of the plaintiff, may be defeated,
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
the mortgage, and thus hold an indefeasible title, which
by
It aphe has a right to exact from the defendant.

that for this breach of the covpears reasonable, therefore,
1
enant of warranty, the proper rule of damages should be,
is all
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
to give the
of the defendant.
If he should not redeem, but suffer the
then if there shall be any loss, he

equity to be foreclosed,
2
3
will have no right to complain."
So, in a subsequent case,
" If the
right of redemption is not foreredeemed for less than its value,
be
the
land
closed and
may
the Court held,
the
the amount
to be paid for such redemption
will be the measure of damages,
amount
due on the mortgage

because
it
will
afford
the
plaintiff*
a complete indemnity.
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
Cases
may
covenantee, yet being very small in amount in comparison

with the value of the estate, it would be plainly for the interest of the
to redeem.
owner and holder of the equity of redemption

In such case, it would be quite unreasonable
to hold that the
The deed
covenantee, on
such an eviction, should
nant against incumbrances, but the

breach was defectively set forth in
Tufts v. Adams, 8 Pickering,

(Mass.) 547, Parker, Ch. J.
3 White v.
Whitney, 3 Metcalf,
the declaration.
(Mass.) 89.
also contained a cove-
148
recover damages to the full value of the estate."

In a
more recent case 2 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
open on his part, his damages will be limited by the
still
amount of the redemption-money. 3

But it seems to be also settled, in accordance with a
prin-
that the purchaser is under no obliif

he let the time necessary for that
to
and
redeem,
gation
purpose elapse, and the incumbrance thus becomes changed
ciple heretofore stated,
title, his right to measure the damages by

the consideration-money will not be impaired by his not
5
having availed himself of his right to redeem.
into an absolute
Citing Tufts
v.
Adams, supra,
p.
147.
2
Donohue
v.
Emery,
Metcalf,
debt
True
(see
v.
Haley, 24 Maine,
297).
The mortgage was then
closed,
and the three years allowed
fore-
(Mass.) 68. The covenant in this

case was for quiet enjoyment, but the
for equity of
same principle equally
covenants, (Elder v. True, supra,)

and the Court held him entitled to
applied.
3 The
foregoing cases were cited
with approbation in the recent case
of Willson
v.
H.) 236.
4
Supra,
5 Elder
p. 145.
v.
a covenant
of warranty, the
damages were held to be measured
by the value at the time of eviction.
This case was a hard one upon the

vendor. He sold covenanting against
redemption passed by,

,
the purchaser sued
damages
above
as
This case
Willson, 5 Foster, (N.
True, 82 Maine, 104.

As the deed in this case contained
also
when
is
had he chosen so
could have thrown all the
fact the purchaser,
to
do,
mortgage
debt
by the same mortgage
in
L';i'_ <>r,
in tin-
to
do so, that the morthaving no longer an interoi

land, had no standing in Court
compel acceptance of the mnrtgagt;
from his own

had been a sub-
sequent purchaser from his vendor,

of another part of the land, bound
outstanding mortgage still existed,

he tendered the amount to the mort-
to
off
shoulders, as there
ing to the rule
compel him
stated.
indeed one of the
strongest instances of the application

of the rule stated in the text for in
incumbrances, but finding that an
gagee, who refused to receive it, and

the Court held, upon a bill filed to
upon the
New York and
first
and accord-
established in
afterwards adopted
States, of
Maine and many other
subjecting property thus sold, to the

lien of the
incumbrance according
to the inverse order of
its
alienation,
(Clowes y. Dickinson, 5 Johns. Ch.

235 Holden v. Pike, 24 Maine, 427,
;
and see
all
the cases collected in the

The remarks and
note to Aldrich v. Cooper, 2 Leading 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 v. Babcock, 2 Metcalf,

(Mass.) 510, it appeared that the defendant had acquired the estate by
means of a judgment against its for-
mer owner, by
the chapter on
the
covenantee
by
authorities submitted in
the covenant for seizin, as to the recovery
virtue of which,
local laws, the land
149
had been
under
set off to
of his intention to
upon the
redeem
plaintiff, in
good
where-
and
faith,
in order to discharge that right to

redeem, and enable himself to retain
the estate, paid $602.89, in order to
The
extinguish such incumbrance.
value of the estate at that time, as
found by the jury, was $1,200
the value of the improvements
upon
made
$500.
it,
" It
and
is
that the
contended for the
plaintiff,
amount thus paid by him
to
extinguish the incumbrance, is the

measure of his damages. But we
think this cannot be laid
down
as a
him, leaving however, in the judgment debtor, an equity of redemption.
rule of damages, without considerable qualification.

Where the incum-
Under these circumstances, the defendant sold the premises to the plaintiff, "with the usual covenants of seizin
brance
and warranty, and against incum-
guished for
brances."
Subsequently, the equity

of redemption was levied on and sold
under another judgment against the

same original owner, and the purchas-
if
is
of such a character, that,

it would take the
not extinguished,
whole
estate,
and
less
it
can be extin-
than the value of the
estate, so that the
amoumt paid
for
extinguishment would bring a less

onerous burden upon the covenantor
than he would have to sustain by an
its
er of this equity gave notice to the
eviction,
purchaser of the property of his intention to redeem, to prevent which the
well as that of the owner to extin-
him $602.89, (being the

amount, with interest, for which the
equity had been purchased,) and
latter paid
then
nants.
J.,
upon the coveappears," said Shaw, Ch.
brought
"by
" It
suit
the statement of facts re-
ported as found
by the jury, that,

more than a month before the expiration 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*
it
being for his benefit as
guish it, the amount paid for extinguishing would be the measure of
damages, because it would afford the
plaintiff a perfect indemnity.
Other-
amount thus paid exceeds

the amount which the covenantor
would have been bound to pay if
the plaintiff had been evicted.
" For
instance, we will suppose the
wise, the
case of a conveyance with the usual
covenants against incumbrances, and

cpvenants for warranty. There is an
outstanding mortgage, and the mortis about to close and oust the
gagee
grantee.
He
must redeem or be
150
of interest, and of the costs and expenses paid by him to

If he is evicted, he will
evicted.
have a remedy on his covenant, and
then to apply
recover the value of the land at the
the
time of the eviction, and interest.

Now if the value of the land be
plaintiff to
$2,000, and the amount of the mortgage with interest, $2,500, should
the grantee redeem and pay $2,500
to extinguish the incumbrance, he
case,
sum
$602.89, paid by the

extinguish the right of
redeeming, was less than the defendant would have been liable for, had
the plaintiff permitted Phelps to redeem, then that is the measure of
for
damages
now liable.
warrantor, although the incumbrance

could not be extinguished for less;
because the covenantor is liable only
then he
But
if
the
mortgage should amount to $1,500,

and the grantee should pay that sum
to redeem, it would constitute the
because it
measure of damages
;
would afford an indemnity to the

on
plaintiff, and bring a less charge
the covenantor than
if
the grantee
had permitted the mortgagee

close.
...
In
Wyman
v.
to fore-
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,
Before the year expired,

(it should be plaintiff,
for $1,800.
the defendant
shows), never having

been put out of actual possession,
redeemed by paying the $1,800, it
as
the case
being found that the estate was worth

$3,000. It was held that the plaintiff having derived from the defendant
all his
estate in the land, includ-
the present
result will be, that if
of
could not recover that sum of his
for the value of the land.
this rule to
and the
is
which the defendant
is
If it exceeds that amount,

liable only for the smaller
amount.
"
Had
the plaintiff declined the
what would have been

amount of damages? As the
estate granted by the defendant to
the plaintiff actually passed by the
offer to pay,
the
defendant
being
and having good right
to con-
conveyance,
seized,
the
vey, subject only to redemption by

amount of damages
his creditor, the
he would have been liable for on his

covenants, was the value of the land
Gore v.
at the time of the eviction.
The value
Brazier, 3 Mass. 543.
of
the land, independent of the improvements, was then $1,200, and the value
of the improvements $500
making in
round numbers $1,700.
By improvements, we here understand buildings

or betterments, other than repairs,
made by
the defendant or the plainafter the levy, and before the expiration of the year allowed by law for
tiff
The
the redemption.
probably
arises
great difficulty
fact of these
from the
ing the right to redeem, at a less sum

than the actual value of the land, for
which he might have been liable on
expensive betterments made upon a
eviction, the difference should enure
creditor after the levy, the del.tnr

could not be charged \\ith them on
to the benefit of the covenantor,

that, therefore, the
sum paid
;md
for such
redemption should be the measure

of the plaintiff'* damages.
We
are
defeasible estate.
ion, that if
We
they were
are of opin-
made by
the
redemption, for the reasons above

stated.
realty,
And being annexed to the

and having become part of

extinguish the incumhrance,
1
applying* to this covenant.
It
be asked,
may
may
be referred to as equally
there no case in which one entitled to
is
the benefit of a covenant against incumbrances
may
recover
damages by reason of an incumbrance, which,

has not yet inflicted actual loss, is yet morally
substantial
although
151
it
For it is not always convenient for a purdo so 1

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
certain to
may not have
the incumbrance to evict him, or the latter

to
power
do
so, as in the case of
there were no other remedy, it seems hard

if the
purchaser do not pay off' the incum-
In these cases
to say that
the
a mortgage not yet due.
if
the freehold, they would have constituted a part of the actual value at
"
We
think there must be a
more
Suppose
exact statement of the account, and

assessment of the damages, upon
them made by the plaintiff, they

were made by him after he had ac^
If the sum paid by

these principles.
the plaintiff for a release of the right
purporting to be abso-
of redemption, was less than the defendant would have been liable for
the
time of
quired a
title
redemption.
and indefeasible under the defendant's deed of warranty and we

are of opinion, that as between the
must
plaintiff and defendant, the loss
It arises from
fall on the latter.
lute
want of caution
deed,
when
giving such a
in fact he had only a de-
u-asihlc estate.
in
It follows, that if the
on redemption, then the sum thus

paid by the plaintiff would give him
a complete indemnity, and would be
but if
the measure of his damages
he paid more, in order to redeem the
estate, than the defendant would
have been liable to him for, upon an
;
paying the sum

he did, to extinguish this right of
redemption, had yielded to it, and
o-ivi-n
up the estate, his right on the
defendant's covenant would have
actual redemption, then the

on this breach of covenant
been
447, supra, p. 145, is, that in the former the plaintiff had the legal estate
plaintiff instead of
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 redemption.
exceed
The
the
mentioned
cannot
sum."
difference between this case
that of Tufts
temporarily
latter only
1
last
damage
v.
and
Adams, 8 Pickering,
suspended, and in the
an option of purchase.
See supra,
p.
93
et seq.
152
brance or be not evicted under
nominal
it,
his
damages
improvements on the property

and during the time he is waiting
for his
course, cease,
be but
shall
will,
of
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 incumbrance, would seem to be at variance with the construc-
which we have already seen has been given to this covenant, in treating it, so far as the measure of damages is
tion
concerned, as a covenant of indemnity.

If indeed the covenant be treated for
of indemnity,
it
would seem
purposes as one
accordance with
all
to follow, in
the familiar principle which governs such covenants, that a

time would be no bar
recovery of nominal damages at one
to a subsequent recovery for an actual loss.
i
Where, indeed, the incumbrance
has become an indefeasible

to
title
so as
extend to and defeat the entire

it has been seen that
estate of his
But, although
vendor
liable, it
was ob-
jected that the former judgment was

an estoppel. The Chancellor held
agreement was intended

and unconditional
pay to the vendor the
estate conveyed,
that if the
the damages may be measured by

the consideration-money, (supra, p.
as
promise to
cases
142,) but there may be many
where the incumbrance falls short of
principal and interest on the mortgage, so as to enable the latter to sue
this effect.
and recover upon that promise in

his own name, even although he had
not been compelled or required to
Supra, p. 134.
3
Thus, in Halsey
Paige, (N. Y.) 446,
v.
Reed, 9
one who pur-
an
absolute
pay anything thereon
to the holders
chased land subject to a mortgage,

by a clause in the deed assumed, as
of the mortgage, then the whole contract was merged in the judgment
a part of the consideration, the pay-
upon that contract, although the damBut if,

ages had been but nominal.
ment of the principal and interest

due on it. On this covenant the
vendor sued, and recovered but nominal damages, as no evidence was
as the Court held, the true construction of the agreement was, that the
purchaser should assume the pay-
given of his having been compelled

to pay anything on the mortgage
ment of the mortgage to the then

holders, it was a mere contract of
He
indemnity, on which the vendor

could recover nothing till he had
himself been compelled to pay some-
since the sale.
compelled
to
pay
afterwards was
interest
on
it,
and
having again sought to render the
153
the course of decision has certainly treated the covenant as

one of indemnity so far as the damages are measured, yet
cannot be said, at least on this side of the Atlantic, that

there is authority to sanction more than one recovery for a
it
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."
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
of a thing certain at a certain time.
is
the accomplishment
Thus, in Lethbridge
the
which
was
an
action
trustees of the deMytton,
by
fendant's wife, on a covenant to pay off, within a twelvemonth, certain incumbrances to the amount of <! 9,000, no
was laid or proved, and judgment having
special damage
2
V.
gone by
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
"
and
shilling damages, the covenant becomes of no value
" the trustees were
entitled to have
Patterson, J., added,
;
this estate
unincumbered
at the
end of a year from the mar-
how could that be enforced, unless they could recover

riage
the whole amount of the incumbrance, in an action on the
"
and the same principle has been recognized and
covenant 1
;
enforced in
many
other cases. 3
thing on the mortgage, and that he

could recover as often as he should
be compelled
to
make payment on
that account.
1
Per Chancellor Kent, 4 Com-
mentaries, 472. This expression is

used with reference to the capacity
of this covenant for running with

the land, as to which the difference
between the English and American

authorities
is
noticed
the
in
8th
chapter of this treatise,

2 2 Barn. &
Adolph. 772.
3
Carr
u.
Roberts,
Barn.
&

Such a course of
decision, however, obviously depends
upon the peculiar construction of the covenant.

the ordinary covenant against incumbrances, it
that no
more than nominal damages
But, upon
would seem
can, under the circum-
stances referred to, be recovered in a court of law.
By
the
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
old
proved to be well founded, the judgment pro loco et tempore

bound all the lands of the warrantor from the date of the
is
But
unknown
The quia
writ.
in
in
modern times, such a course of proceeding

common-law courts.
timet jurisdiction of equity is, however, a very

Although its exercise is perhaps most genwaste or loss, in the
erally invoked in cases of anticipated
benefit of those in remainpreservation of property for the
familiar one.
der,
and the
Adolph. 78
nect. 249
or in the enforcement of a covenant that
like,
Booth
v.
Churchill
Starr, 1
v.
Hunt, 3
ConDe-
Y.) 321 Gardner v. Mies,

16 Maine, 280 Jennings v. Norton,
35 Id. 309 Lathrop v. Atwood, 21
Connect. 123 Dorsey v. Dashill, 1
Maryland, 204 Hogan's Executors v.
and see
Calvert, 21 Alabama, 199
nio, (N.
Mr. Hare's note
to
Smith
v.
Howell,
ton, but apparently without sufficient

reference to the peculiar nature of
the covenant.
l
Supra, p. 8 Fitzh. Nat. Brev. 134;
Co. Litt. 100
Crookhey v. Wood;
ward, Hobart, 217; and see the re-
marks of Duncan,
neida, 11 Serg.
2
&
J., in
Funk v. Vo-
Rawle, (Pa.) 116.
See, passim, Story's Eq. Jurisp.
Fisher v. Wor6 Exchequer, 739.

rail, 5 Watts & Serg. (Pa.) 4 78, is an
obvious exception to these cases, it
Redd v. Wood, 2 Georgia

chap. 21
Decis. 174; Green v. Hankinson,
being there held that although a

joint owner who covenanted to pro-
4 Monroe, (Ken.) 439
cure the joinder of the other owner

in a deed conveying the land, was
liable in
damages
for a failure to
do
yet their, amount was not necesgarily measured by the consideration.
BO,
Mr. Sedgwick, in his Treatise on

the Measure of Damages, p. 190, has
seriously questioned the correctness
of the decision in Lethbridge v. Myt-
Walker, (Miss.) 487
Gates
;
v.
Loftus,
Peebles
v.
Marshall, (Ken.) 408

Lejfven v. Stone, 8 Alabama, 485 ;
Patterson v. Smith, 4 Dana, (Ken.)
Estill,
153
7 J. J.
Bradley
v.
Commissioners,
Humphreys, (Tenn.) 428.

3 Chisholme
v.
Starke,
(Va.)
25
Yancey
v.
Call,
Holladay,
Dana, (Ken.) 230 Lewis r. Hudson,

6 Alabama, 463; Henderson v. Vaux,
;
10 Yerger, (Tenn.) 30.
155

the purchaser shall use or abstain from using
1
ticular
it
it
in a par-
has,
particular cases, also enforced
Thus
of covenants to indemnify.
way, yet
the specific performance
in
2
Hayes, one who received the assignment of
several shares of the excise, covenanted to save the assignor
in Riinelagh v.
harmless touching the payments to the king, and afterwards

the king sued the latter for money which the assignee
have paid, and the Lord Keeper decreed that the

" it
being unagreement should he specifically performed,
reasonable that a man should always have a cloud hanging
to
ought
over him," and referred the case to a Master, with directions that toties quoties a breach should happen, he should
report the
same
to the
Court, which,
if
necessary, would
and the same prin-
direct issues of
quantum damnificatus ;
since
has
been
recognized on both sides of the Atlanciple
3
tic.
These cases must
however, be deemed as having a

It has been said of the
general and broad application.
of
timet
jurisdiction
equity, that though it is one
quid
" which this Court has often
it will be
not,
exexercised, yet
in so doing, because it
tender
varies
the
tremely
materially
4
It
agreement of the parties at the time of the transaction."
will be hereafter seen that a
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
left to his
at law, except
remedy
perhaps
in cases
but he
is
where the
insolvency of the vendor has, at times, been considered as

1
Cole
Tulk
v.
y.
2 Phillips, 774
Moxhay,
Sims, 23 Eng.
Law &
Eq. R.
584.
2 1
R. 52
Gibson
Law & Eq.

Brown,
Vernon, 189
S. C.
Chanc.
Cas. 146.
v.
v. Goldsmid, 27
Eng.
R. 588 Champion v.
6 Johns.
Ch. 406
McNeil, 2 Dev.
Car.)
&
Burroughs
Bat.
Ch. (N.
297.
'
3 Lee
Pember
v.
v.
Rook,
Mathers,
Moseley,
1
318
Brown's Ch.
Flight v. Cook, 2 Vesey, Sr. 320,

per Sir Thomas Clarke, M. R.
156
creating* or fortifying the equity of the purchaser,
the relief sought
is
or where
incidental to the administration of assets.

it
fortiori, therefore,
would seem
a general rule,
performance of any of the
equity will not decree the specific
that, as
except, as will be hereafter shown, of the

2
Thus in a case in
covenant for further assurance.
covenants for
title,
New
York, the complainant's bill set forth the existence of a quit

rent upon the land which had been conveyed to him with
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,
all
the covenants for
title,
which the defendant demurred, on the ground that the

purchaser's remedy was at law upon the covenants ; and the
to
" It is
said, however, that
saying,
a court of equity will decree the performance of a general
covenant of indemnity, though it sounds only in damages,
Court dismissed the
bill,
on which they entertain bills quia timet.

be so or not, the difficulty is, that there is
here no covenant of indemnity in the proper sense of the
upon the
Whether
term.
principle
this
In one sense,
all
the usual covenants in a deed
may
be termed covenants of indemnity; that is, they are designed to protect the purchaser to a certain extent against
or an eviction, or against incumbrances ;
but they afford an indemnity in no other way than every
other contract or agreement does, viz., by the right to re-
the failure of
title,
cover damages for the breach or non-performance, and this

deed contains no other than the usual covenants." So, in a
4
case in Ohio, where the defendant conveyed to the complainant with covenants that he was the lawful owner, had
good right to sell, and of warranty, and the latter filed a bill
setting forth that a
1
widow had
See infra, the last chapter.

See infra, Chapter VI.
obtained an assignment of
3
Tallman
v.
Green, 3 Sandford's
(N. Y.) 437.

Tuite v. Miller, 10 Ohio, 382.
S. C.
157
premises for the payment of which a certain

annual charge had heen imposed upon the land, and prayed
a specific performance of the covenants, the bill was dis" There is a well-established
missed, the Court saying,
The Chanchancery jurisdiction over certain covenants.
dower
in the
cellor
will
power where the cove-
exercise a restraining
the tenant by
his own act, and he will enforce the specific performance of
But we find no case
the covenant for further assurance.
his stipulation, disturbs
nantor, contrary to
of interference on this side the Court in relation to the cov-
enant of warranty," and other cases have proceeded upon

the
same
principle.
Mar-
also other circumstances in the case
(Ken.) 142, the complainant

had received a deed with covenant
which rendered the interposition of

equity necessary. Baruett and Wil-
of warranty, and filed his bill setting

forth that a suit was threatened by
liam
In Watkins
v.
Owens,
2 J. J.
shall,
adverse claimants, and praying that

their titles be examined and damages 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
The same
ineffectual.
m;i(U>
Bradford
in
(Ken.) 225.
In Barnett
decision was
Long, 4 Bibb,
v.
Montgomery,
Mon-
.327,
the covenant was pe-
There had been an
(Ken.)
exchange of land, with a covenant

giving to either party, in case of eviction, the election either to restore the
land received as the consideration or
to
pay the value
therefore,"
the*
thereof.
Court
the amount of the
warrantor
former owner.
" It did
not,
" leave
said,
liability
of the
to the conclusions of
law
upon the general expressions of the

covenant, but fixed the nature and
extent of his liability." There were
14
Montgomery died
without having completed the contract, leaving several children, of
whom Thomas Montgomery
entered
an
agreement with Barnett,

covenanting, on behalf of the other
heirs, to convey to him the one tract
into
as soon as all of
v.
culiarly framed.
roe,
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
them should be of
conveyed to him
age, while Barnett
and another brother the other

with the covenant that
evicted, he,
reconvey the
pay
its
Barnett,
tract,
they were
if
would either
first tract
to them, or
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

against his brothers
and
filed
sisters
bill
and
Barnett, whose object was, as respects the former, to obtain from
them a conveyance
of the
tract
158
There are cases, however, in which a specific performance of these covenants can, in substance, be decreed, when
incidental or necessary to the administration or marshalling
1
Thus in a recent case in England,2 a testator
of assets.
which, on their behalf, he had cov-
by
enanted to convey to Barnett, and
proper for Montgomery to exhibit
him
his bill in equity, shaped, as it is,

with an aspect to finally settle the
whole matter of contest."
as respects the latter, to compel

with his covenant. "
to
comply
Un-
der these circumstances," said the

Court,
to the
"
and especially
as the
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
title
land which was to be con-
him
to
comply with his covenant to Barnett,

and for the purpose of compelling
Barnett, under his covenant of warranty, to surrender his claim to the
land which Montgomery bound himself to cause to be conveyed, or to
each
Williamson
sey, 511
v.
Averall
was
it
party,
therefore
1 VeWade, Lloyd &
Codrington,
v.
Goold, (Irish Ch.) 252, per Sir E. Sugden, Chanc. Calvert v. Sebright, 15
Beavan, 156 S. C. 15 Eng. Law &
;
Eq. R. 125, (and see

p.
177)
this case infra,
Haffey's Heirs
11 Leigh, (Va.) 88
v.
Birchetts,
Adm'r
Kyle's
Fauntleroy's Adm'r, 9 B. Monroe,

(Ken.) 620 ; Higgins v. Johnson, 14
v.
Arkansas, 309. In Averall v. Wade,

a party seized of several estates, and
indebted by judgment, settled one of
them
for
pay therefor according
with
of the
warranty
deed.
The propriety
of such an ap-
brances, and subsequently acknowledged other judgments and it was
plication will be the more striking

when it is recollected that if, instead
held that the prior judgments must

be thrown altogether upon the un-
of bringing his
to the import
contained in this
bill in
equity,
Mont-
gomery had brought suit at law upon

the covenant of warranty and recovered compensation for the lost
land in damages, the judgment might
a valuable consideration,
against incum-
covenant
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
have been enjoined by bill in equity

by Barnett, upon the grounds of defects and difficulties in Montgom-
had no right
thereby drawing part of

the same matter now in contest be-
Leigh, (Va.)
ery's
title,
fore a court of equity for its consideration and decision.

To avoid this
circuity of action,
and
to enforce
specific execution of the

2
covenants
Cox
v.
judgment
to
make
creditors
the
settled
estate contribute.
In Haffey's Heirs
88,
v. Birchetts, 1 1
land which
been conveyed with covenants

seizin
and of warranty
pay the grantor's note
in
had
for
trust to
to the
Bank
of Virginia, of which the complainants
were
indorsers,
Bernard, 8 Hare, 310.
was sold under

made
had, before his death,
159
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
These assignments contained

remainder to the plaintiff'.
covenants for further assurance, and the bill, alleging that
was doubtful whether
it
the assignments
were
valid,
charged
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
that, if invalid,
created a debt, and that
if
the testator died solvent the cove-
nant must be performed, said that the court of chancery undertook to administer the estates of deceased persons, and
it was the
duty of the Court to do so, if practicable, without sending parties to courts of law, of which there was no
He did not say the Court would spenecessity in this case.
a prior deed of trust, which had been
made to secure a previous debt.
of by an issue at law, yet here that

could not be necessary, since the
The
damages were fixed and already cerThe damage was the value of
the land lost, and that value was
ascertained by what it sold for. The
debt was paid out of a trust, subject
to which the second incumbrancers
had title, and the grantor could not
complain, nor can his heirs complain
at reimbursing the second incumbrancers to the full value of what
had been paid for him to their prejudice.
In this view of the matter an
issue must have been superfluous."
ants,
grantor died, and the complainbeing forced to pay the note,
filed
to
bill
against his heirs, claiming

to the bank, and to
be subrogated
charge the heirs to the extent of the

descended to them for a breach
assets
of their ancestor's covenant, and a decree was made accordingly. " It is

" that
said, however," said the Court,
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.
ciple this
tiffs
is
true,
As a general prinbut here the plain-
having no rights
but by the
of
substitution,
equitable
could
principle
assert
no
remedy
at
law.
They could only get
relief in equity.
Moreover, although
it
is
generally
true that damages should be inquired
tain.
Higgins v. Johnson, supra, seems to

have been decided mainly upon the
" where
ground that in that State,
the creditor is compelled to resort to
the heir for
payment of
the debts of
the ancestor, his remedy

cery rather than at law."
is
in chan-
160
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
cifically
It was not necessary for him to decide, and he

did not decide whether, without the covenant for further
of law.
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
would not enforce the
that equity
specific
performance of a
covenant against incumbrances, when contained in A volun2

testator, in consideration of natural
tary conveyance.
affection,
made a conveyance
of certain land to the plaintiffs,
and covenanted that they were free from

It turned out, however, that there was a
all incumbrance.
mortgage on the premises, and the plaintiff brought suit
his grandchildren,
it off out of the

against the executors, to compel them to pay
" in the nature
"
assets of the estate,
being," the report says,
of a
bill
a specific performance of the coveOn a reference, the report was in favor
in equity for
nants in the deed."
of the plaintiffs, but this
was
set aside
by the Court, on the
would sustain voluntary confar

were
so
as
executed, yet that it would not
they
veyances
enforce executory agreements or covenants, and much religround
that although equity
ance was placed upon the case of Jeffreys v. Jeffreys (one

of the class that had overruled the well-known case of Ellis
Nimmo,
v.
in
decided by Sir E. Sugden, while Chancellor of

which a father had conveyed, by voluntary set-
Ireland),
tlement, certain freehold estates to trustees for the benefit of
and by the same instrument had covenanted

surrender certain copyhold estates, subject to the same
his daughters,
to
i
See, as to
rington, ami
this,
Williamson
Hall, y's Heirs
chetts, supra, p. 158.

3 Duvoll v.
Wilson,
v.
u.
CodBir-
S. C.
3 1
Barbour's
R. 487, and see Hervey
v.
Aud-
land, 14 Simons, 531.
Craig
Lloyd
&
&
Phillips, 138.
Goold,
333.
In that

trusts.
Upon
his death,
tion of the trusts,
it
on a
bill to
was decreed
161
specific execu-
compel
was
that the settlement
want
valid as to the freeholds, but void as the copyholds for
"
" This
decision," said the Court,
of a consideration.
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."
may, however, be doubted whether the rule laid down

this case did not go beyond that enforced in the authori-
It
in
which have overruled Ellis
ties
Nimrno.
v.
In
all
of them,
the subject of the executory part of the conveyance was separate from and independent of the subject of that which was
As
executed.
were intended
to the former, the deeds
to as-
sure the future transfer of estates and specific performance

was refused because the instruments were no more than exBut with respect to coveecutory agreements to convey.
,
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 ;
a post-nuptial
case
agreement
in
writing (not under seal), by which a

father undertook to make a
provis-
was specifically executed, being founded on a meritori-
ion for his child,
ous consideration.
The Chancellor
with great force, that inasnuK-h as equity did, before the stataro-iu'd,
ute of uses, enforce a covenant to
stand
based upon natural
seized,
alK'i-tiim,
which was at that time as
much a
contract in fieri as any executory contract at the present day, it
was impossible
to
refuse to decree
performance of such an agreement as

that before the Court, because of the
lack of
The
valuable
consideration,
cases which have overruled this
decision, are
Holloway
14*
v.
Heading-
ton, 8 Simons,
324
Jeffreys
Jef-
y.
Craig & Phil. 138; Dillon v.

but
Coppin, 4 Mylne & Craig, 647
see the more recent case of Kekewitch v. Manning, 1 De Gex, Mac.
freys, 1
& Gord. 176; S. C. 12 Eng. Law &

Eq. R. 120.
l This
expression must not, of
course, be taken as broadly as its
terms would seem to imply. The
"obligation of the covenants" was,
in a court of law, as
complete as if
the consideration had been a valuable
one; see Hervey v. Audland, 14 Sifor a consideration was

mons, 531
imported by the seal, and it will be
;
remembered that it was only in

equity that such a technical effect
was disregarded.
162
and that
if
equity will
it
deem
to be valid an executed volun-
will also lend its jurisdiction, 'in cases
tary conveyance,
otherwise proper for its exercise, to enforce the protection
It should also be observed
of the party claiming under it.
that,
in
a very recent case
whose authority
that in
New
the English decisions upon

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
in a subsequent part of this treaequity, will be considered

2
tise, while for a fuller consideration of the jurisdiction of
equity in enforcing the performance of covenants on behalf

3
of the purchaser, the student is referred to the last chapter.
1 Kekewitch v.
Manning, 1 De Gex,
Mac. & Gord. 176; S. C. 12 Eng.
Law & Eq. R. 120. The student
will find an able review of this case,
and of those which have preceded it,
in an article on " Voluntary Assign"
ments in the American Law Reg-
ister,
VoL
1,
p.
385
the author of
which, however, approves the decisions
which have been shaken by
this
recent case.
2
Chapter XII.
Chapter XIII. For the specific

performance of the covenant for further assurance, see infra. Chapter
VI.
3
163
CHAPTER
V.

materially from those we
have been considering, has been defined to be an assurance
1
a defective title.
against disturbance consequent upon
it is
sometimes called the sweeping
While in
THIS covenant, which
differs
England
covenant,
to a great extent, supplied

place has been here,
its
by the covenant of warranty, which seems
to
be considered
the principal or sweeping covenant in American conveyIt is, however, on both sides of the Atlantic, the
ances.
2
only covenant generally inserted in a lease, and, in Pennsylvania at least, and perhaps elsewhere, in ground rent
deeds.
Its
these words
form, when set forth at length, is usually in

" 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,
use and benefit, without any
is
in
Ho well
The word " demise "
v.
Richards, 11 East, 641.

in
lease,
generally held in this country, as

England, to imply a covenant for
and
to
let, suit,
for his
and
their
trouble, denial, eviction,
quiet enjoyment ; this is considered

in the chapter on " Implied Cove-
nants
"
;
infra,
Chapter X.
164"
interruption, claim or
demand whatsoever,
from or by
of,
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
and assigns, paying the said yearly rent and taxes or
extinguishing the same by purchase, and performing the
heirs
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 receive and take the rents and profits thereof, without
any
molestation, interruption or eviction of him, the said
(grantor his heirs, or any other person or persons whomor),
soever.
"
as
When, however,
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,
3
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
The form
of this covenant
taken from the statute 8

c.
119, already referred to,
&
is
9 Viet,
and may
be deemed to be the most approved

and modern form. It differs slightly
from that given by Mr. Platt. Platt
A very good
on Covenants, 312.
short form is as follows " And that
the said hereditaments and premises
shall be held and enjoyed accord:
ingly, without
let,
suit,
eviction or
disturbance by the said vendor, or

his heirs, or any other person whomsoever."
Hughes' Practice of Sales
of Real Property, Vol.
pendix.
2, p.
9,
Ap-
2 It is also
customary in
leases, as
well as in ground-rent deeds, to precede the covenant with the phrase,

that "he, the said (lessee or grantee),
paying the said rent hereby reserved,

shall, at
but
it
all
times, quietly enjoy
has been held that
this
"
;
does
not amount to a condition precedent,

and that the covenantor will be held
liable
on the covenant, even although
the rent should be in arrear.
son
v.
Dyer, 5 Barn.
&
Daw-
Adolph. 584
Hayes v. Bickerstaff, 2 Modern, 35.

3 For the
construction which has
been given
to these
see t'n/ra, p. 172.
concluding words,

in the briefest
manner.
it is
165
often, if not usually, expressed
Although the words of the covenant may purport to indemnify the purchaser from any interruption on the part of
the grantor, or any other person, yet this
stood to mean such interruption only as
must be undertake place
may
under paramount title. 2

There were several old authorities
which held that a covenant thus expressed extended to all
interruptions and disturbances whatsoever, whether lawful
or tortious ; 3 and although authority was not wanting in
4
opposition to this doctrine, the law seems not to have been
5
That case
Hayes v. Bickerstaff.
covenant, however generally expressed,
settled until the case of
decided that the
must be understood as applying merely to the acts of those

because, in the first place, the grantor
claiming by title
;
does not expressly covenant against tortious acts of strangers ; secondly, it would be unreasonable that he should do
so, as
he could neither foresee nor prevent them
the law gives the coven an tee a
thirdly,
against the
remedy
wrongdoer
the
covenantee
thus
have
a
double
fourthly,
might
and
one
his
and
the
satisfaction,
covenantor,
remedy
against
;
" to hold free

1
and clear
Thus,
from ine, my heirs, &c., and from all
citing Year Book 26

a miscitation for 26
title,"
VIII.
Hen.
Hen.
Year Book 22
3,
other persons whatsoever," was in

the recent case of Midgett v. Brooks,
12 Iredell, (N. Car.) 147, held to be
VUI. p. 11. So in
Hen. VI. (Pasch.) pi. 26, " If a lease
be made for a term of years by deed,
a covenant for quiet enjoyment.

2 Howell v.
Richards, 11 East, 641.
3 See
Mountford v. Catesby, 3
writ of covenant, if a stranger who

has no right oust the termor, yet he
Dyer, 328, and

referred to.
4
the
cases
therein
Brooke's Ab. Garranties,
shall
pi.
1.
ousted by wrong, he shall not have

covenant otherwise if it be by elder
whom
is
chargeable by
not have a writ of covenant

his
against
" If one lease for

years and covenant
to warrant the land, and the lessee be
so that the lessor
the
lessor.
right
But
if
he to
belongs oust
the
termor, then he shall have writ of
covenant against his

5
Vaughan, 118;
S. P., 2
Modern,
34.
lessor."
S.
C. but not
166
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
l
law on both sides of the Atlantic. 1
Tisdale
v.
Essex, Hobart, 85
Wotten v. Hele, 2 Saunders, 1 78, n.

Nokes v. James, Cro. Eliz. 6 75 Lewis
v. Smith, 9 Mann. Gr. & Scott, 610;
;
Folliard
v.
Wilcocks, 2 Johnson, 1;
y.
Greenby
v.
Wallace, Id. 402
Dutch Church,
Brick
Coster, 4
v.
(Pa.) 499
Spear
&
Watts
v. Allison,

Lewis, 4 Hen. & Munf. 395
ris,
v.
Kelly
2 Hill, (N. Y.) Ill;
Serg.
8 Har-
Yancy
Rantin
Robertson, 2 Strobhart, (S. Car.)

366 Beebe v. Swartwout, 3 Gilman,
v.
(111.)
180, (see a very elaborate arguin that
ment of counsel and opinion
case as to the nature of the covenant

for quiet enjoyment generally)
Davis v. Smith, 5 Georgia, 2 74 ; Sur;
v.
Arighi, 11
(Miss.) 96.
get
Smedes
&
Marsh.
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 confiscated
argued,
had no
first,
title
to
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
;
respected the first question, and

thinking it would lead to the discussion of improper topics, would not
it
permit it to be argued. And as to

the second question, they thought it
equally clear for even a general warranty, which is conceived in terms
;
more general than the present covenant, has been restrained to lawful
interruptions," and judgment was
given for the defendant.
In Frost v. Earnest, 4 Wharton,
(Pa.) 86, a lease had been made with
a covenant for quiet enjoyment without the molestation or interruption of

the lessor or any other person whomsoever, upon which the lessee, on be-
New York
ing evicted by the municipal corporation who opened a street through
The plainthat the defendant
the demised premises, brought covenant against his lessor.

But the
by the State of
during the Revolution.

tiffs
had subsequently been recognized

and secondly, that under the authority of Mountford v. Catesby, (supra,
the premises, they
having been lawfully confiscated by

the State of New York, whose independence, as a part of the Union,
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
167
is
subject to three exceptions
the
covenant extends to all acts of the
In the first place,
1
Thus
covenantor himself, whether tortious or otherwise.
rule,
however,
Maine, premises were conveyed in mortgage

with a covenant of warranty to one who neglected to record
in a case in
his
is
mortgage
until after the
designed to indemnify the vendee

by reason of de-
for a lawful eviction

fect of title in the
vendor and any
disturbance thereupon.
But if the
vendee lose the premises, not because
.
of defect of
in the vendor, but
title
on the very ground that the vendee

has a good title from the vendor,
which the State, by virtue of its sovereign power, authorizes to be taken
from him, stipulating to pay him for
it, on what principle can he have recourse to the vendor on such a covenant ? 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,
not depend on the vendor's

having received any compensation;
same premises had been conthis
by the mere fact of the eviction and loss of the property.

The
case then would present the aspect
arises
of a vendee,
tled to
who on
eviction,
is
enti-
be paid the value of his
loss
by the party evicting him, and at the

same time may recover from the vendor for breach of covenant.
cannot be
This
the covenant never
was
such an event, and is
designed for
not applicable to
it.
It
resembles the
case of eviction of the vendee bv a

third person who is a tort-feasor. He
may have
his action against
and therefore
cided that the vendor
feasor
such
tort-
The same reason
apousted by
the sovereign power of the State
under its right of eminent domain,
when
or under
the vendee
is
the
reservations in
first
settlement of the country, exercised

according to the constitutional in-
junction of compensating every man

whose property is taken for the public use.
The remedy of the vendee
is
to look to the legislative provisions

for his indemnity, and not to
made

which was introduced into convey-
the
ances for purposes entirely different." The same point had also been
previously decided in Ellis v. Welch,
6 Mass. 250.
1
does
it
covenant.
plies
360
v. Brookesby, W. Jones,
Andrews's case, Cro. Eliz. 214
Cave
;
Corus
v.
Young,
Id.
544
Shower, 425
Crosse
v.
Lloyd
v.
Wotten v.
Tomkies, 1 Term, 671
Hele, 2 Saund. 180, n.; Sedgwick u.
Seaman
Hollenback, 7 Johns. 376
;
&
Leonard, 157;
Mayor of New York v. Mabie, 3 KerO'Keefe v. Kennan, (N. Y.) 156
Browning's case,
nedy, 3 Gushing, (Mass.) 325. In

Crosse v. Young, Shower reports a
long argument of his own on this
point,
"which
had
prepared to
urge, but was prevented by a ready

judgment for the plaintiff by the
it
has been de-
whole Court."
is
not liable on
2 Curtis v.
Peering, 12 Maine, 499.
168
in
veyed
fee
by the mortgagor
to a purchaser,
who, by
recording his deed, took the title clear of the mortgage.
covenant
Upon
urged
titles,
brought against the
mortgagor,
it
was
that the covenant extended

only to elder and better
to those then existing and not to those
subsequently
1
but the Court
general covenant
claims was limited by construction of law to
against
lawful claims, because the law is a sufficient protection
acquired,
held
that
all
against wrong-doers.
are derived from the
But
lawful claims, except such as

within the terms and
plaintiff, were
all
should be within the operation of the covenant.

There was
no propriety in applying the rule that there should be proof
title, to evictions founded upon the subsequent acts
of the covenantor which could not be resisted. 2
of elder
It is obvious, that the acts of the servants or agents of
the covenantor are, if committed at his
command,
as
within the scope of the covenant as
they were
his
if
much
own
acts.
1 Such
is undoubtedly the
law.
" All the
Judges agreed that when a
man bound himself and his heirs to
sippi of Surget v. Arighi, 11 Smedes

& Marsh. 96, the breach laid in an
warranty, they are not bound to

warrant new titles of action accruing
joyment, brought by a lessee against
action
on a covenant
for quiet en-
the lease that nothing therein contained should be construed to imply
was the destruction of the

and
premises
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 equivalent to an eviction by the lessor himself; but the Court held that it was
not sufficient that the mob were induced to do the act, but that the lessor must do the act or excite others
to do it, not indirectly but directly.
He must be the agent who acts with
a covenant for quiet enjoyment.
a view
through the
after
such
feoffee,
or
any
other,
the warranty made, but only

are in esse at the time
titles as
of the warranty made."
Executor
y.
Greenleaf 's
Dyer, 42
a.
This decision was cited in the recent case of Maeder v. City of Caron26 Missouri, 114, where the
were somewhat similar, but
there was an express provision in
delet,
facts
157.
Seaman
his lessor,
to that particular result.
This
Leonard,
was the necessary consequence of the
Li the recent case in Missis-
principles stated in the authorities in
v.
Browning,
169
however, that the acts of the covenantor must

be done under assumption of right, as distinguished from
It is said,
mere
Thus
it seems to have been

thought, that
the
demised
enter
if a landlord should
upon
premises for
the purpose of sporting, the tenant could not maintain cove-
trespasses.
nant for such an act
2
;
but where one sold a house with
a covenant that the purchaser should enjoy it without the

let of the
grantor, and the latter locked up a pew appertaining to the house, it was held that this was as strong
lawful
an assertion of right as could well be imagined. 8

So in
a recent case in New York, where the corporation had
it was held that the
entry upon
the premises by the agents of the corporation, and the assumption by them of the control of the berths and locations
leased a certain wharf,
which ships were to occupy thereat, was a breach of the

that if
implied covenant for quiet enjoyment in the lease,
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 enjoyThe language employed in

ment.
Hele, 2 Saunders, 180, n.; Sedgwick

y. Holleiibeck, 7 Johns. 376
O'Keefe
the covenant in
v.
(supra,
than in
Kennedy, 3 Gushing, (Mass.) 325.

2 Per
Ashurst, J., in Lloyd v. Tomkies, 1 Term, 673, and per Ld. Ellenborough in Seddon v. Senate, 13 East,
Dudley v. Foliott,
p. 166,) was even broader
the present case and yet it
;
was held only
to
be a covenant for
It was not suffiquiet enjoyment.

cient that the mob were actuated by
72.
feelings of malice or revenge against

the defendant; and unless, therefore,
should appear that the acts of the

constructively those of the
it
mob were
lessor
himself, the
case would
fall
within the rule that the covenant

did not extend to the tortious acts
of others.
1
Corus's case, Cro. Eliz. 544 Crosse

Young, 2 Shower, 425 Lloyd v.
;
v.
Tomkies,
Term, 671; Wotten

15
v.
Lloyd
Mayor
v.
Tomkies,
of
Kernan, 151.
New York
Term, 671.
v.
Mabie, 3
The
question whether
the acts complained of as a distur^><
ance of the rights of the lessee were

done in the lawful exercise of a power
to regulate the disposition of vessels
in the public docks, under any ordi-
nances upon the subject, did not arise

upon the evidence in this case, and
was expressly reserved.

The law upon this point
is
thus
170
Secondly, if the covenant be expressly against the acts of

a particularly named person, it will not be restrained to his
latvful 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. 1
stated
by the late Baron Platt in his

on Covenants. "In a case
treatise
v.
"
Palmer, Lord Ellenborough said

rule has been correctly stated
:
The
cheverell, p. 429, pi. 7,) it is laid down

that a covenant by I. S. that his les-
at the bar, that where a man covenants to indemnify against all persons, this is but a covenant to indem-
and
see shall enjoy the lands peaceably

quietly, without any lawful let,
And the
nify against lawful title.
reason is, as it regards such acts as
disturbance, ejectment or molestaI. S., is not broken
may
may
in Rolle's
Abridgment (Davie
v.
Sa-
tion of the said
by
his
entry on the lessee as a mere

and without any lawful
trespasser,
from rightful claim, a man

well be supposed to covenant
against all the world ; but it would
arise
be an extravagant extension of such

a covenant, if it were good against
all the acts which the folly or malice
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 covenant only stipulates for quiet enjoy-
of strangers might suggest, and therefore the law has properly restrained
ment without the
ferent
subterfuge that his entry was unlawand he, therefore, a trespasser, to
may therefore reasonably be expected
title.
lawful interruption
of the covenantor, his heirs, or assigns,
yet he cannot avail himself of the
ful,
avoid the consequences of his own

wrong for, as against the party him-
it
within
its
to rightful
reasonable import, that is,

title.
It
is,
however,
where an individual
dif-
named,
for there the covenantor is presumed
to know the person against whose
acts he is content to covenant, and
is
word
any disturbance
from him, whether from lawful title
or otherwise." And where in a covenant for quiet enjoyment, an excep-
to
tion as to the acts of certain specified
self,
the Court will not consider the
lawful, nor drive the covenantee

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
v.
Mapes, Cro. Eliz. 212
Edwards, 1 Strange, 400
Foster
Perry
Nash
v.
v.
Palmer, 5 Maule
&
Selw.
Barn. &
Kennedy, 1 A. K.
Marshall, (Ken.) 389 Pence v. Duval, 9 B. Monroe, (Ken.) 49. In Nash
874; Fowle
Cress. 29
v.
Patton
Welsh,
v.
to stipulate against
persons
is
introduced, the covenant
apply to the acts of all others

not included in the exception as in
will
Woodruff v. Greenwood, Cro. Eliz.

517, where a tenant in tail with reversion to the
for
Queen
in fee, leased
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

intention of the covenant, maniThirdly, where the plain
fested hy express words, is to protect the covenantee against
claims of every description, as where it is against all claim1
ing or pretending to claim.

At one time there seems to have heen some doubt as to
whether a disturbance or interruption by reason of a suit in

of a covenant for quiet enjoyequity came within the scope
2
This question is now
disturbances
ment against
generally.
well settled in the affirmative,
" It
remarked,
is
but Lord St. Leonards has
to expressly
customary
extend covenants
for title to equitable charges, disturbances,

like caution,
Mr. Preston has observed, 5
that
With
&c."
it is
also usual
" without
any lawful let," &c., so as to
of the
preclude the possibility of question as to the extent
The law is now, however, so well settled as to
covenant.
to insert the
words,
both these points, as to render these precautions apparently

unnecessary, and in the more modern conveyances they are
not observed.
as expressed by -the words, " without
any
let, interruption, &c., of the vendor or any person or persons whomsoever," is what is termed a general, absolute or
The covenant
"unlimited one.
is to
vel
But when
it is
reginis Anglice,
granted
the
and the Queen
reversion
to
another,
who, upon the death of the tesant in

tail
without issue, evicted the lessee,
who brought covenant and obtained

" for none are
excepted
besides the Queen and her succes-
judgment,
sors,
J
and not her patentee."
Chaplain
v.
Southgate, 10
Selby
Hunt
Chute,
Brownlow, 23
see, however, the remark
made
in
Dan vers, T. Raymond,

;
371,
and
in
Winch's Entries, 118, will be found

a declaration in which a disturbance
by a chancery suit is assigned for

breach, and Winch was himself one
of the Judges at the time
v. Chute was decided.
3
54
v.
v.
as to the report of this case
Mod-
ern, 383.
2
intended that the covenantor
be responsible only for the acts of himself and those
Calthorp
Hunt
4 2
v.
when Selby
v. Heyton, 2 Modern,
Danvers, T. Raym. 370.
Shep. Touch. 166, Preston's ed.

" or
claiming under him, the following clause is added,
any
person or persons whomsoever claiming", or to claim the
1
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 decisions 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
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
lease, in
alleged ignorance of the condition,

of an auctioneer, and the original
was held
covenant
that the eviction

;
the
word "
acts
commenced
the business
landlord re-entered,
it
was not within the words of the

"
meant something done by the
the covenant was made, and the
person against whose acts

"
word " means had a similar meaning, something proceedThe eviction was not
ing from the person covenanting.
produced by anything proceeding from the covenantor, but

from the person in possession of the premises, and judg-
ment was given

The word "
1
It
for the defendant.

"
default
was once held
must be observed, that
"
land, the words
in Engby or through his
or their acts," &c., are not usually

inserted after the covenant for quiet
enjoyment, but at the close of the

covenant against incumbrances, which
is
there, as
it
were, annexed or sup-
plemental to the former see supra,

This IB not the case here,
p. 109.
;
to extend
to
an
the covenant against incumbrances
generally precedes that for quiet enjoyinent, and the words referred to
are,
when employed,
serted at the
generally iulatter cov-
end of the
enant.
8
Spencer
Cress. 457.
v.
Harriot,
Barn.
&
COVENANT FOR QUIET E*NJOYMENT.
Tilt:
arrear of quit-rent whicli the purchaser was obliged to discharge, although not accruing while the covenantor was
It was said that if it happened to
the premises.
he in arrear in his lifetime, it was a consequence of law
owner of
that
was of
it
his default in respect of the party
he covenanted.
observation.
l
Howes
v.
But
this
Brushfield, 3 East, 491,
solid "rounds, that to
make
dor liable to the arrear of
under
his
the venthis
rent
covenant would be tanta-
to a decision that the cove-
nant, although limited, should extend

the world.
The
to the acts of all
clear intention
that
the
of the parties
vendor should
was
covenant
against his own acts only, and yet it

should seem that the argument of
would apply as well to a

mortgage or any other incumbrance
created by a prior owner, as to an
the Court
of quit-rent
arrear
payment of
;i
fault.
how he
arising
him
in
former occupier made deThe reader should be cautious
which
much
to
per Lord Ellenborough.

8 Lord St. Leonards has said of it
" It was
argued by the counsel for
the vendor, and apparently on very
mount
whom
with
seems open
decision
applies this decision to cases

practice, as it may lead
in
Hamond
be otherwise.
Corny n, 180.
course,
Hill, 1
v.
The same author remarks, that

care must be taken to distinguish this
case from Cavan v. Pulteney, 2
Vesey, Jr. 544, where the covenanwere evicted by reason of their
tees
covenantor not
having
suffered
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
to
make
required
good the
title was within the compass of his
own estate, and within his own pow;
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
er
as his
own
acts or defaults extended,
be seized in
to
fee.
In
Howes
v.
draw conclusions not author-
Brushfield the seller assumed in like
i/.ed by
2 Sugden
prior decisions."
on Vendors, 518. It certainly never
was imagined in Pennsylvania, where
manner to be seized free from incumbrances, but he did not assume

to be entitled free from ineumbran-
ground-rents are and quit-rents were

formerly common, that a vendor was
ces
ever
to
held
liable
to
his
purchaser
by whomsoever created
the two
cases would have been similar, had

it not been in the seller's own
power
under a limited covenant against inemulirances, by reason of arrears of
to
ground-lent, accruing for a longer

period than he himself possessed tin-
had been necessary, which the seller must have purchased, and that had been deemed
obligatory upon him within his cove-
though if the covenant

were a general one, it would, of
premises,
15*
have suffered the common recov-
ery in Cavan
v.
Pulteney.
party's concurrence
If a third

In a subsequent case, 1 one
ant for
life
and
his son,
who had
received from a ten-
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 persons lawfully claiming under them, "or by or with his or
1
means, consent, neglect, default, privity or proThe tenant in tail and his son both died, and
curement."
their
acts,
who thereThe Court said
the next remainder-man evicted the underlessee,
upon brought
his action
on the covenant.
the eviction being by a paramount title could not

be brought within the covenant unless by means of the
"
or default
of the
words "
who certhat
covenantor,
neglect
tainly might have required his lessors, the tenant in tail

and his son, to have suffered a common recovery ; but
that
could be assigned on
before a breach
these words,
must be averred that the covenantor had the power

it
or means of procuring such common recovery, and that
" With such an allehe neglected or omitted to do so.
gation made and proved, an action of covenant might possiIt
bly be maintainable, but not without it.
may, indeed,
show a want of discretion in the covenantor that he took
leases under such a defeasible
but a neglect and a default seem to imply something more than the mere want of
discretion with respect to his own interests
something like
title,
the breach of a duty or legal obligation existing at the

time ; these words, in their proper sense implying the not
doing some act which he ought to have done, and which

he had the power to do, and the not preventing or avoiding some danger to the
vented or avoided."
So,,in a recent case,
title,
where a
nant, then the case would have been

same as Howes v. Brushfield."
the
2
Sullen on Vendors, 518.

i Woodhouse r.
Jenkins,
which he might have pre-
ham, 481, and 2 Moore
&
Scott,
599.
2
9 Bing-
lessor covenanted against
Stanley
Bench, 1015.
v.
Hayes,
Queen's
175
" or
any other person or
any interruption of or by himself,
to
claim
or
by, from or under
lawfully claiming
persons
him, them or any of them," and the premises were disfor arrears of land-tax, due by the defendant
trained
upon
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
before the
from the injury here complained of, those

words implying a claim of title from the lessor. Here the
claim was against him."
So, in a case in Massachusetts,
different things
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
1
it
In Ireland
v.
was not a claim " by or under" him. 2

Bircham, 2 Scott,
207, the eviction was by the original

grantor of a lease for non-payment
of rent by the lessee, who had assigned the term to the plaintiff, cove-
nanting for quiet enjoyment. The

question whether this was a disturb"
ance
by, from or under them,"
although argued by counsel, was not
decided, as the case went off upon another ground
2
556.
see tw/ra, Chapter X.

Spaulding, 11 Metcalf,
West v.
The case of Blatchford
v.
The
Mayor of Plymouth, 3 Bingham, N.
the lessors should already have contracted with, or should thereafter contract to supply, provided that such a
quantity should be
left as would be
supply the mill for twelve
hours a day, with a covenant that
the lessee should enjoy without inter-
sufficient to
ruption of the lessors, or any persons

claiming by their acts, means, consent, default, privity or
procurement.
The breach
assigned was that the

defendants, at divers times between
the execution of the lease and the
691, seems to have been principally

decided upon the insufficiency of the
bringing of suit, caused and procured

to be drawn off large quantities of
But on the trial it apwater, &c.
breach assigned, though, from

pressions used by the Court, it
peared that nothing had been done

since the making of the lease, but
C.
ex-
may
be doubted whether they thought the

covenant was broken at all. The defendants demised a mill stream, except so much water as should be sufficient for the
supply of persons
whom
that there were, outlets to the stream,
granted to the parties many years

before by Acts of Parliament.
It
was held that upon this evidence the

breach was badly assigned. The evi-
THE CbVENANT FOR QUIET ENJOYMENT.
176
Where, however,
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 appointing a remainder, and the husband then made a lease
not warranted by the power, covenanting against
interrup-
by him, or any one claiming by, from or under him,

and the lessee was afterwards evicted by the remainder-man
on account of the defective execution of the lease, it was
tions
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 under a power claim under the one who creates, and not under
the one who executes
the remainder-man took his estate
it),
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
were created by one of his acts."
new
limitations
So, in a later case, where one, upon his marriage, setan estate upon himself for life, with remainder to his
tled
first
and other sons
in
tail,
with a power to the tenant for

determinate on three lives,
grant leases for years,
life to
dence might have suited a breach that

persons having rights under prior
grants had diminished the quantity of
the
water. If the plaintiff meant that he

was injured by contracts entered into
by the defendants, previously to the
persons claiming under them, and

acts occasioned by their means and
di-misr,
he In-each should have been
framed accordingly; and Tindal, Ch.

J., remarked, that the evidence did
not
fall
within the triple condition of
covenant, the terms of which
were made
to guard against acts of

the defendants individually, acts of
See Dexter
default.
Gushing,
Swasey
i
v.
Hurd
14,
cited
v.
Manley, 4
supra,
p.
142.
Brooks, 30 Vermont, 692.

1
v.
Fletcher, Douglas,
-I, ).
177
and afterwards granted a lease of part of the estate for the

lives of three persons, and covenanted that the lessee should
said term without the interruption
quietly enjoy during the
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
an
in
action brought by the heirs of the latter against the former

as heir of the lessor, that the defendant could not be said to
own
right as tenant in tail

under the marriage settlement; but the Court were clearly
of opinion, 1 that the defendant was a person claiming under
claim under his father, but in his
the lessor, within the
meaning of the covenant
for quiet en-
joyment.
8
So, in a very recent case, lands were, on the marriage
of a lessor, settled in execution of a power reserved to his
convey to his father for life, remainder to

with remainder to his first and other sons
father, in trust to
himself for
life,
The
tail, with power of leasing for twenty-one years.
lessor subsequently demised part of the
premises for three
in
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-
lives,
*sons claiming by, from or under him or them."

death of the lessor, his eldest son
brought an
On
the
ejectment
against the tenant, under which the latter was evicted, and
the Master to whom the matter was referred found that the
lessor's estate
1
Upon
the
was not subject
authority of
Hurd
v.
Fletcher, supra.
2
Evans r.Vaughan, 4 Barn. &
261
Dowl.
& Ryl.
Cress,
was
by the words "during
the said term," was understood the
;
S. C.
also held that
349.
It
to
any
liability
by reason of
term which the
lessor purported to
grant by his deed, and not, as contended for the defendant, a term con-
tinuing only for the life of the lessor,

3 Calvert v.
Seabright, 15 Beavan,
156
15 Eng.
Law &
Eq. R. 125.
178
On exception to his report, it was urged on

the covenants.
behalf of the estate, that the eldest son did not claim under
the lessor, but
father.
But
under the creator of the power,
the Master of the Rolls asked,
was
viz.,
it
his
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
If he held that the covenant only affected such
that term ?
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
In
covenant.
many
security for the
title,
cases
such a covenant was a great
and he was of opinion that those words

and
to be construed in their largest possible terms,
ought
when a person having a power
appoint, executes that

"
by,
power, the appointee does, in fact, obtain the estate
"
the appointor, and consequently, that any
from or under
that
to
by the appointee comes within the terms of a covenant for quiet enjoyment as against all persons claiming
"
"
So in another very
the grantor.
by, from or under
eviction
the defendant assigned a term of 1,000 years

to trustees in trust to raise by way of mortgage a sum of
recent case,
the payment of his debts. The trustees accordingly

the
term on mortgage, and the defendant subse-'
assigned
quently granted a lease of part of the lands, covenanting with
money for
the lessee for quiet enjoyment during the term, without the
1
There was
also another
ground
of defence.
Sir John had covenanted " so far as in his power lay, or he
lawi'ully
urged
might or could," and it was

the covenant was then
that
qualified
by
this clause.
See the case
noticed on this point and classified

with others, infra, Chapter X.
2
Carpenter
v.
Parker, 3
Common
Bench, (New Ser.) 206. The Court

seemed to entertain some doubt
whether the facts in this case amounted to an eviction, (see in/ra, Chapter
VII.), but none whatever that they
constituted a molestation and disturbance within the words
nant.
of the
cove-
179
trouble, denial, eviction, molestation or disturbance
let, suit,
of the lessor or any person claiming by, from or under

The lessee was afterwards compelled to give up pos-
him.
session to the mortgagee,
and the Court had no hesitation
deciding that there was a disturbance by one claiming

through and under the defendant within the meaning of the
in
covenant for quiet enjoyment.

As to the words " means,
or procurement," in an
old case, a fine having been levied of certain lands to the
husband and wife and his heirs, the husband made a lease,
title
"
covenanting against interruption or disturbance
by him
or his assigns, or by any other person or persons by his
means, title or procurement." After the death of the hus-
who brought covenant
band, the wife ousted the lessee,
On demurrer it was objected

against her as his executrix.
that the title which the wife claimed was not by any title or
means derived from the lessor, but from the cognuzor of the
" The
is if these words
But the Court
fine.
said,
question
of the covenant (by any person or persons by his means,
title or
procurement) are to be referred to the act, viz., the
disturbance, or to the
ance
made
is
and not
for if
title
it
under color of which the disturb-
is to
be referred to the disturbance
to the title, the entry of the wife cannot be a
of the covenant, for the disturbance
he
is
breach
not by means of the
dead, nor by his 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
husband, for
is
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
to the
title
title acquired
by his means, and so
covenant."
it
is
a breach of the
286
Butler
;
v. Swinerton, 2 Rolle,
Cro. Jac. 657.
Palmer, 339
;
The
and
report in Cro. Jac. is less clear

than in either Rolle or Pal-
full
180
So a recovery of dower by
the wife of the covenantor
within the covenant for quiet enjoyment against

1
ing from or under him.
is
As
all
claim-
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
it
we cannot
lay
breach.
its
down a
universal rule as to
what
will cause
has been constantly confounded with the
It
covenant of warranty ; so much so, that in some cases a

covenant has been spoken of as a covenant for quiet enjoy-
was in fact a covenant to warrant and defend. 2

somewhat generally said in the United States, that
ment, while
It
is
it
" the covenants for

quiet enjoyment and of warranty are
mer, and of these the report in the

former is the better. Lord St. Leonards has said of this case
" It
may
from other reports of Swan's case,

74, pi. 204; Dy. 257, pi. 13;
Mo.
pi. 208; and And. 12,

appears that there was no
actual covenant in the lease, but
Bendl. 138,
be proper to mention, that the case

of Butler v. Swinerton which (to
pi. 25, it
borrow an expression of Lord Ken-
merely a covenant in law on the

words " concessit et demisit" and,
the
is
yon's)
magna
charta of the
liberal construction of covenants for

title,
is
also
stated
in
Sheppard's
Touch. 171, which goes onto

" and so
it is
also if
state,
A purchase land
A
A
for
of B, to have and to hold to
life, the remainder to C the son of
therefore, the
Judges thought the
action did not
lie
because the cove-
nant determined with the estate of

the lessee."
517.
As
Sugden on Vendors,
to the covenants
from the words concessit
A doth make a lease

D for years, and doth
see m/ra, Chapter
covenant for the quiet enjoying, as

in the last case, and then he dieth
pard's Touch. 171.

was said, "if the
and then C doth oust the lessee,

in this case this was held no breach
of the covenant," and for this position Swan's case, M. 7 and 8 Eliz.
is cited, and no reference is made to
manded dower had been
in
tail,
and
after
of this land to
any other report of the case. Now

this case is in direct opposition to the
case of
Butler
v.
Swinerton
but
et
implied
demisit,
X.
Anonymous, Godbolt, 333 Shep;
of the lessor
"
Otherwise,"
woman who
it
de-
the mother
the action would not
then have lain against the heir because she did not claim by, from or
under the lessor."

u Martin v.
Martin,
(N. Car.) 413;
2 Id. 388.
Coble
1
v.
Devereux,
Wellborn,

broken only by an eviction,"
but in order to show this not
to be universally true of the former,
refer
"
to
its
181
it
is
only necessary to
form, as constantly used, stipulating against
2
any let, suit, interruption, disturbance," &c.
There would seem, however, to be little (Joubt 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
reference to the law upon the

same person.
which
is
of
eviction,
attempted to be treated in the
subject
3
of
warranty, will, it is hoped, show
chapter on the covenant
acts of the
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 advantage of by the heir, the devisee or the assignee of the
land to which it relates, an attribute of considerable importance, which
covenants for
As
is
title
treated in considering the extent to which

run with the land. 4
respects the pleading in an action for a breach of this
covenant,
it is
not sufficient that the plaintiff should

merely
Chapter VII.
'-'
Su-li a distinction
held to be a breach of a covenant
was noticed by
the late Ch. J. Gibson, in a recent

"
covenant for quiet enjoy"
ment," said he, which resembles the
case.
modern covenant of warranty,

from
it
in
this,
differs
that the former
is
that the defendant would do

nothing
to molest, hinder or
prevent him in
the quiet possession or enjoyment of

the lands, Andrews v. Paradise, 8
Modern, 318;
of
way
of
so of
an interruption
necessity
through
broken by the very commencement

of an action on the better title "
house, Morris v. Edgington, 3 Taunthe building of a house on

ton, 24
Stewart
part of the premises, Kidder

3 Levinz, 167, &c.
West, 2 Harris, (14 Penn.

State R.) 338.
So the erection of a
gate in a lane through which the
plaintiff
r.
had a right of way, was

16
3
4
Chapter VII.
/n/ra, Chapter
VIEL
v.
West,

1
negative the words of the covenant, and the case of Hayes

2
already cited, sufficiently illustrates the importance of averring that the disturbance was under lawful
title, as otherwise there would be nothing to show that the
V. Bickerstaff,
defendant was
a mere trespasser, and the declaration

would be bad on demurrer. 8 It is also well-settled that the
ijot
must
declaration
state the
paramount
title
to
have existed
4
before and at the time of the execution of the conveyance,
otherwise non cons tat that the interruption was not under
title
derived from the
plaintiff'
himself.
Of
course,
how-
ever, these rules do not apply to an interruption made by

6
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

before
and at the time of the conveyexisting
ance to the covenantee, it is not necessary that that title
lawful
title
should be set forth particularly, 7 for although

1
Blanchard
378
Wait
v.
Hoxie, 34 Maine,
Maxwell, 4 Pickering,
v.
and see passim all the cases

ferred to infra, under this head.
87,
Vaughan, 118 see supra,

;
Claiming
Norman
title is
re-
p. 165.
not sufficient;
Foster, 1 Modern, 101;

titulum would have done
v.
" Habens
your business," said Hale, Ch. J.

4 Frost v. Earnest, 4 Wharton,
(Pa.) 86
Naglee v. Ingersoll,
Barr,
(Pa.) 205, 206.
Kirby v. Hansaker, Cro. Jac.

Skinner v. Kilbys, 1 Shower,
315
70
Jordan v. Twells, Cas. Temp,
;
Hardw. 172;
S; Hinders,
181,
Wotton v. Hele, 2
and see the authorities
collected in the note
Fraser
v.
Skey,
2 Chitty, 647; Kelly v. The Dutch

Church, 4 Hill, (N. Y.) 105 ; Naglee
v.
Ingersoll,
Barr, (Pa.) 205.
is in
gen-
Supra, p. 167, &c.

7 Proctor v.
Newton, 2 Levinz, 37 ;
Buckley v. Williams, 3 Id. 325; Jor-
Temp. Hardw.
was earnestly contended in
Foster v. Pierson, 4 Term, 617, and
dan
Twells, Cas.
v.
161.
It
Hodgson
v.
The East India Company,
8 Id. 278, that the plaintiff should

have set forth the adverse title under
which he was expelled

Ch.
J.,
cases,
it
said, in
but Kenyon,
the latter of these
"I do not know how
it
was
possible for him to set forth the particulars of the titles of the persons
who entered upon him
such knowledge could only be acquired by an

inspection of title deeds to which he
could have no access."
to
Browning
Pull. 14.
v.
See
also note
Wright, 2 Bos.
&

eral necessary for the
plaintiff to
examine the
183
under
title
which the interruption was made, so far as to satisfy himit was not tortious, and that his
remedy must be,
self that
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 traversed by the defendant. 1
not against the party
On
upon the
There
it
the burden
the trial
directly
making
some
of proof is obviously thrown

in the first instance.
plaintiff,
conflict of
authority in
this
country as to
a
breach
of
this
covenant, as
damages upon
and
increased
value
the
of
respects improvements
subject of
is
the measure of
A form
of a breach of the cove-
nant for quiet enjoyment is thus giv243.

en in 2 Greenleafs Evidence,
" After
reciting the execution of the
deed and the covenant in its very
words,
'
Now the
said plaintiff in fact
he has not been permitted

possess and enjoy the said prembut on the contrary he avers,
provements,
sons claiming
be
will
so to
Pleading, 56,
that, after the
making of the
said
deed, to wit, on the

day of
one E. F. who at the time
,
of making said deed had, and ever

since, until the molestation of the
plaintiff hereinafter
mentioned, con-
tinued to have lawful right and title

to said premises, did enter into the
same, and did thence
eject,
expel,
and remove the plaintiff, and hold

him out of the 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
the
common
found
says, that
ises
as to
(see
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 perin
60.
of pasture,
Wentworth's
in
Another,
Wentworth's Pleading, 63, where,

on a covenant for quiet enjoyment
and against incumbrances, the breach
assigned was that the defendant suffered the ground rent to
fall
in arrear,
per quod the plaintiff was obliged to

pay it to avoid distress.
good form
be found in Lewis
will also
3 J. B. Moore, 35
Taunton, 715. See also
bell,
v.
Camp-
S.
C.
Dexter v.
Evans v.
Manley, 4 Gushing, 14
Vaughan, 4 Barn. & Cress. 261, and
the cases to which reference has
been made on p. 172, &c. Some old
;
forms
tris,
may
60
also
be found
in 2
Robinson's Entries,
Ven171
found in 2 Chitty's Pleading, 545,

546, containing also an averment of
Winch's Entries, 112-118; Hobart,

As to what will constitute an
34.
defending an ejectment, and also of expenses in im-
eviction
costs incurred in
and how
it
may be
see infra, Chapter VII.
set forth,
184
the purchase
haps none
and as there
is
no
exists, as to this point,
distinction taken
and per-
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 already, for greater convenience, been considered in the pre2
ceding chapter.
i
Chapter VII.
Supra, pp. 134, 142, &c.
CHAPTER
185
VI.
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
acter
in the
upon the inartificial charof early conveyances, than to any want of usefulness
covenant
itself
or difficulty as to
its
application.
In the more modern conveyances in England, this cove" And

nant is generally expressed in the following form
:
also that he, the said

(vendor), and his heirs, and all persons 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
and costs of the said (purchaser), his appointees,

make, do, acknowledge, enter into, execute
and perfect, or cause or procure to be made, done, acknowledged, entered into, executed and perfected, all such further
req-uest
hi'irs
or assigns,
acts, deeds,
l
is
conveyances and assurances whatsoever, for the
In Platt on Covenants, p. 340, it

" This
covenant is deemed
said,
and security of the

would seem, however, that
to the sufficiency
latter/'
It
of great importance, since it relates

both to the title of the vendor and to
this
the instrument of conveyance to the

vendee, and operates as well to se-
covenant for further assurance would

supersede most or 'all of the other
cure the
covenants for
performance of
all
acts
necessary for supplying any defect in

the former, as to remove all objections
16*
proposition is rather broadly

stated
as, if such were the case, the
;
m/ra,
p. 188.
title.
See as
to this,
186
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 aforesaid,
according to the true intent and meaning of these
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." I
presents,
The use
of such a .covenant
respects the
its
specific
recourse
is
remedy
obvious, particularly as
in a court of equity
upon a bill for
is
performance, to which, indeed, it would seem,

to an action for dam-
more frequently had than
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," 2 &c.
i
Hughes's
Practice
of Sales
of
however, as has been
It is evident,
said with respect to the other covenants, that any apt words showing the
Real Property, Vol. 2, p. 4, Appen.

The form given in Platt on Covenants, p. 341, is, as were all the cove-
intent of the
nants until recently, much longer.

In this country, the covenant when
strued as a covenant, as in Davis v.

Tarwater, 15 Arkansas, 288, where a
employed
is
not unfrequently in the
following form:
" And
will, at
any and
at all times here-
the request and costs of the

said party of the second part, his
after, at
and assigns, make and execute

any and every other deed or assurance in the law, for the more sure
and effectual conveyance of the said
heirs
will
be con-
deed, which was sufficiently formal

as a conveyance, with
further, that the said party

of the first part and his heirs, shall
and
parties
an habendum
the grantee
declaring
should hold the premises to his heirs
and assigns forever, but containing a
clause
that
covenant to make a good and suffideed with a warranty of title
cient
when
required,
was held
to
be a
present conveyance of the fee with

a covenant for further assurance,
and not a mere agreement
premises hereby conveyed with the

appurtenances, to the said party of
vey.
the second part, his heirs and assigns,

that the said party of the second
form in which
to con-
In the older and more verbose

this
covenant used
to
or assigns, or his, their,

part, his heirs
be expressed, the words generally

" all such further
lawful and
were,
or her counsel, shall or
reasonable acts," &c.
advise or require."
may
devise,
187
acts as the law deems necessary and practibe an unnecessary act, that is, one which, if
executed, would be useless, it is not such an act as the
meaning of the covenant requires. Thus, where the breach
is
meant such
cable
if it
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

1
not an act within the meaning of the covenant.
So, where
in a case
in
to execute,
Maryland, a
bill
was
filed
to
compel a vendor
virtue of his covenant for further assurance,
by
another deed to be prepared under the direction of the Court,

merely alleging that the deed already executed did not contitle to the land in
question with all its advanas
be
tages
they might
enjoyed under the original patent,
the bill was dismissed with costs, as neither in it, nor at the
vey a clear
hearing, had the complainant shown any specific defect or

2
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. 3
Nor
1
will the
Warn
v.
covenant be deemed to be broken
Bickford, 9 Price, 43
S. C. 7 Price, 550.
2
Gwynn
i>.
Thomas,
2 Gill
& Johns,
(Md.) 420.
3 Pet and
Callys' case, 1 Leonard,
304. So in an anonymous case, Moore,
" le
124, where
verity fuit que al
temps del request,
la feme fuit egrotant
sic ut Idborare
non
if its
potuit.
Et
per-
tout le
Court sembleront que malady excusera

cest obligation, car ne full reasonable
request en temps quant la feme ne fuit
able de traveller, et issint si la feme
soil
grossement enseint sic ut ne poit
traveller."
188
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

make further assurance within seven years,
lands and to
and the wife died within that time and her right descended
to an infant, so as to render performance impossible, the
Court held that
it
was the
plaintiff's
own
fault
that the
assurance should have been demanded in the lifetime of the

wife, and that her decease, which prevented the performance of the covenant, was the act of God. 1
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

2
be levied, or a judgment or other incumbrance to be re-
moved. 3
It
conceived, however, that this
is
proposition
must be taken with some
qualification, depending either,

of
the
on
the
other
covenants in the deed, or,
first,
scope
secondly, on the nature of the estate conveyed.
It
has been seen that
either general, that
is,
all
the other covenants for
extending to all
paramount
title
titles
incumbrances, or limited, extending only to defects of

1 Nash v.
Ashton, T. Jones, 195;
" But
Pollexfen, of
Skinner, 42.
the same side with Williams, showed
that the wife
another breach, viz.
:
was under age
at the time of the
covenant, as appears by the verdict

she then had no power to convey the
according to the covenant,

And this was held a manifest breach,
and therefore judgment given for the
estate
plaintiff,
nisi"
Middlemore
of
modern
are
and
title
authority, equity will not
decree a specific performance by a

husband, of a covenant made by him
to procure his wife to levy a fine or
otherwise execute any lawful conveyance to bar her right in his estate
own estate, nor consequentdecree specific performance

of a covenant for further assurance,
or in her
ly will
it
where the wife has not properly joined

See passim, 2 Story's
731 to 735.
in the deed.
v.
Goodale, Cro. Car.
503; Boulney v. Curteys, Cro. Jac.

251 Innes v. Jackson, 16 Vesey,
366. It should, however, be here ob;
served, that, according to the weight
Eq. Jur.
3 2
Sugden on Vendors, 542; Platt
on Covenants, 344, citing Heath, J.
in King v. Jones, 5 Taunton, 427.
18Q
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 limit is an
undertaking that the vendor will execute
such further assurances as may be deemed necessary by the
ited
purchaser.
If the other covenants in the deed are general,
breach will be caused by reason of an incumthen it is conceived

brance not created by the vendor,
if their
that the proposition above stated must be taken to be correct, and that the purchaser may, instead of suing at law
upon
move
his other covenants, invoke the aid of equity to re-
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
which decide that although the

be
may
general, yet when it plainly
that
the
appears
conveyance is but of a limited estate or
interest, the covenants will be restrained and limited by
hereafter to be
covenants for
noticed,
title
1
the subject-matter
Under such circumstances,
conveyed.
it would be
inequitable that the purchaser should, by virtue
of a covenant for further assurance,
require the
conveyance
to himself of
any greater
It is believed that
none
estate or interest.
upon examination of the
authorities,
be found to contradict these

Thus in
positions.
the old case of
Taylor v. Debar, "a purchaser of the crown
will
lands in the time of the late wars, sells

part to the
i
See
infra,
Chapter X.
plaintiff,
190
and covenants
make
to
further
He, on the
assurance.
king's restitution, for <300, had a lease for years made

to him under the king's title.
The decree was, he should
Here the original
assign his term in the part he sold."
contract obviously appears to have been that any confirmation which might thereafter be made of this then doubtful
So in
should enure to the benefit of the purchaser.
2
the recent case of Smith v. Baker, where one believing
title,
he had
the fee-simple, subject to his mother's life

estate, conveyed it to trustees for the benefit of creditors,
that
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
he must be
clearly held that
what
" It
convey the after-acquired estate.

" that he did
be," said Vice-Chancellor Bruce,
compelled to
his interest
was
at the time, but
not
may
know
upon the mere
cir-
cumstances which appear here, he cannot be allowed to

deprive his, creditors of an estate which he disposed to them
him
It is not sufficient for
for valuable consideration.
to
that he acquired subsay that he had no interest then ;

he
which
he
said
estate
had, and which he
sequently the
may or may not have supposed himself to have had at the
time of the execution of the deed.

isfy
sale
that there
of
v.
is
which
was a contract
from the
Debar,
effect
Chanc. Gas.
the entire report of the

is
also
reported
in
Chanc. Gas. 212, in the same words.

8 1
Young & Collier's Ch. 222.
3
And where
by a
I see
this specific estate to the creditors,
Taylor
This
case,
me
lieve the party
274.
specific
the estate
is
bound
covenant for further
for value,
enough
to sat-
by deed, for the

and I cannot re-
of that contract."
Edwards
v. Applebee, 2 Brown's Ch.

R. 652, note; Pye v. Daubuz, 3 Id.
595.
*
The
2 Sim.
&
case of Bensley
v.
Burdon,
Stuart, 519, will be found
on examination to harmonize with

One reciting that he
as-
surance, a purchaser may, in case of

the bankruptcy of the vendor require
further assurance from his assignees,
this principle.
was
entitled to
an
estate in
remainder^
it with an annuity, and to

secure the same conveyed it to trus-
charged
Leonards has remarked, " If

prove had, and the defect can be supplied by the
this subject
Upon
the
191
title
Lord
St.
vendor, the purchaser may file a bill in equity for a specific

1
for further assurance.
And a
performance of the covenant
vendor who has sold a bad

by deed of lease and release,
covenanting for further assurance.
He subsequently charged it with antees
other annuity, and conveyed the estate to another set of trustees, reciting
the former deed.
It
turned out that
he had, at the time of these conveyances, no estate whatever, but subsequently, a life estate descended to
him, which he conveyed to the second annuitant. The first annuitant
having become bankrupt,

ees filed a
his assign-
against the second
bill
annuitant and both sets of trustees,

praying that a deed might be executed by
all
charging the
ment of the
under such a cove-
title, will,
necessary parties, for

estate with the pay-
life"
first annuity
and it was
argued (by Sir E. Sugden) that it
;
was quite clear that if a person assumes 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 purchaser, compel him to execute a conveyance, and that a purchaser from
him with notice would stand in the
same situation as the vendor. But
the bill was dismissed by Vice-Chancellor Leach, (though without costs,
considering the nature of the defendant'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 by their bill, the first deed operating by way of estoppel as against
the grantor
him with
and those claiming under

This decision,
notice.
it
be perceived, went beyond the

position claimed by the complainwill
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 Right
v. Bucknell, 2 Barn. & Adolph. 278.
The case has, on the point of legal
estoppel, been since corrected by
Right v. Bucknell, and Lloyd v. Lloyd,
ants;
Connor & Lawson, 592, the latwhich cases was decided by

Sir E. Sugden when Chancellor of
Ireland, who had himself, in Bensley
2
ter of
v.
Burdon, argued
in
favor of the
equitable estoppel. The student will

find two articles in the London Jurist
this subject, Vol. 5, p. 859, and
1170, and see also infra, Chapter IX.
on
It has,
that a
however, been also held,

which carries an
contract
equity to have
it
decreed in
ought to be free from
all
specie,
objection,
and
specific performance of a covenant for further assurance was there-
where the estate, being

a reversion, was bought of an expectant heir, at an undervalue, in the
lifetime of his father, and the purfore refused
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
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

nant for further assurance
is
correct, if the cove-
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 implication limited or restrained by other covenants or by the
grant itself, then they would seem to have rather too broad
an application. 2
It is conceived, therefore, that the true
view
to
be taken
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
l
his
covenant for further assurance
support of
this,
In
the learned author
cites Taylor v. Debar, which, as we

have already seen, was clearly a case
in which the conveyance of the after-
was properly compellable, and refers to Seabourn v. Powell, 2 Vernon, 11, in which there was
no covenant for further assurance at
The case was, that Austin and
all.
his wife being assignees of a term of
Austin became
years, mortgaged it.
insolvent and ran away, and Haynes,
who had the real title, in compassion
acquired
title
for Austin's wife,
made a
lease in
whereupon the plaintiffs, who were sureties on the bond

which accompanied the mortgage,
trust for her,
filed
bill,
alleging
" that the mort-
therefore
the
plaintiffs,
is,
that
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 mortgagee;" and the Master of

the Rolls deeming the estate made
to be a graft into the old
stock, decreed the trustees to make a
by Haynes
new mortgage
a
That the
to the mortgagee.
effect 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
estate is conveyed with a
covenant of warranty, an after-ac-
where an
gagee had a plain equity to have the

benefit of that title which was but a
quired estate absolutely vests in the
graft into that stock from which he

derived, and that the defendant had,
this
purchaser by estoppel, and that
result must in general be denied to
since the taking of the estate, (and

so it appeared on proof,) paid the
any other covenant than that of warSee infra, Chapter IX.

ranty.
interest to the mortgagee,
and that
103
for title are not limited or restrained
where the covenants
acts of the vendor or by the particular estate

the
conveyed,
purchaser has a right, under the covenant for
further assurance, to require in equity the conveyance of a
either
by the
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 conveyance of any other estate, or the removal of an incumbrance not created by the vendor.
This question was
part presented in a late case in

Missouri, where the plaintiff sold certain lands by a deed
"
grant, bargain and sell," which in
containing the words
that State implies, by force of a local statute, covenants for
seizin, against
and
in
incumbrances done or suffered by the grantor,

1
In a suit on the last of these
covenants, the breach assigned was that a mortgage upon

the premises, which had been created by the defendant's
grantor had been 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
To
and possession.
defendant demurred, and the demurrer was sustained,

on the ground that the covenant must be taken to embrace
this the
such incumbrances only as were created by the grantor. 2

1
See
Chapter
infra.
covenants thus
that the grantor
implied
is
X.
are,
The
first,
seized of an in-
defeasible estate in fee-simple ; second, that it is free from incumbrance
done or suffered by him and, third,

for further assurance by the
grantor
and his heirs to the grantee and his
heirs and assigns.
;
517.
Armstrong
t\
Darby, 26 Missouri,
"The
question in this case,"

said Napton, J., who delivered the
17
"
opinion,
is
whether our statutory
covenant for further assurance obliges

the vendor to remove an outstanding
incumbrance. This covenant is substantially a
will, at
covenant that the vendor
the request
and
cost of the
deeds, conveyances and assurances," either by

fine, recovery or other form of assur-
vendee, perform
ance, which
confirmation
(Platt
may
of
all acts,
be wanting to the
the
on Covenants,
vendee's
p.
341
title,
Rawle,

It seems that, where in England a
purchaser having
taken his conveyance without the transfer of the custody
203). In King v. Jones, 5 Taunton,
418, Mr. Justice Heath said: "Under this covenant the heir might call
even to levy a
he certainly might have called
fine
for the removal of a judgment or
other incumbrance." The commentators seem to have adopted this obfor further assurances,
;
servation in King v. Jones. Platt

" The
levying a fine is included
says
under a covenant to do all lawful
:
and reasonable
surance.
acts for further as-
The removal
of a judg-
chaser
may
file
bill in
equity for a
performance of the covenant

for further assurance
and a vendor
specific
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
ment or other incumbrance may
declaration of the
likewise be called
Jones, and which has been adopted

without explanation by the text writ-
for."
(Platt
on
Covenants, 344). Rawle says "In

considering what acts may be reasonably required under this cove:
ers.
law in King
v.
If the defect in the vendor's
nant, the purchaser may, as of

course, require a fine to be levied,
or a judgment or other incumbrance
can be supplied by a conveyance from him, the covenant for further assurance would clearly protect
the vendee. But if the covenant for
be removed." Sugden says " Under a covenant for further assurance,
further assurance, as intimated by

Platt, applies to any defect of title in
a purchaser may, of course, require

the removal of a judgment or other
incumbrance." All these writers re-
the vendor, whether such defect can

be supplied by the vendor or not, it
to
fer to
ity
King
v.
Jones as the author-
on which these remarks are based.
It is
further stated
treatise, that this
by
Platt in his
covenant operates
as well to secure the performance of

all acts for supplying any defect in
the
title
of the vendor as to remove
objections to the sufficiency and

security of the instrument of conall
veyance to the vendee. Such language as this is very comprehenSir Edward Sugden says, in
sive.
-line chapter we have quoted
t!,.
from above, in speaking of the covenant for further
title
prove bad,
;i
-uraiM-c,
and
the.
" If
the
defect can
be supplied by the vendor, the pur-
title
greatly more comprehensive than

any other covenant for title, and may
is
be said
to
render most of them
superfluous.
Why
insert a
totally
covenant
against incumbrances, if the covenant 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 assurance
The
protection furnished a
purchaser by the covenants of seizin

and against incumbrances are known
be imperfect, and insufficient in

many cases to secure him against the
actual damage resulting from their
to
195
of the title-deeds, afterwards parts with his own deed to a

he may, unsubsequent purchaser of part of the property,
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
1
but whether a
otherwise be without any deed whatever
;
take with his conveyance

purchaser who has neglected to
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,
He
could compel the production

of the title-deeds themselves, but not, it would seem, of any
seems
at least doubtful.
papers not strictly within that category.

breach, by reason of the restrictions
which courts have imposed upon the
measure of damages.
Why
should
these covenants ever have been resorted to,
if
the covenant for further
assurance would furnish an equally
remedy at law for its

broach and a greatly more efficient
satisfactory
protection in equity
by an action
for
The docspecific performance ?

trine of Mr. Justice Heath and the
its
writers who have followed him must

be understood in a qualified sense to
with the practice and unThe

derstanding of the profession.
reconcile
it
judgments and other incumbrances

to which they allude, must be understood to be such as the vendor has
The reasoning
control of."
in this
case seems obviously just, and has

induced the alteration in the text
presented in
1
Napper
this edition.
v.
v.
&
bill
Stuart,
533, a
Of
Eq. Cas.
prayed in the alternative, a new covenant to produce title-deeds, or the

actual production of the deeds thema demurrer to the bill for
want of equity was overruled. ViceChancellor Leach said, "I do not
think that there has been a judicial
selves,
decision
upon the particular point
whether under a covenant
stated
that
the plaintiff had resold the property which he had purchased with a
for fur-
ther assurance in a conveyance, a

new deed of covenant to produce
may be required. But

whatever doubt there may be upon
title-deeds
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 enable the plaintiff to show a marketable
title
upon
his resale.
plaintiff's title,
sort of
Ayers, 2 Sim.
course, on
covenant for further assurance, and
ant's title-deeds
Arlington,
Abr. 166, pi. 4.

- AYhere in Fain
The
defend-
being the root of the

and in that sense a
common
property, (see BarSim. & Stuart, 449,)

I strongly incline to think that the
plaintiff has an equity to that ex-
clay
tent
v.
Raine,
and
am
informed that the
196
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,
England,
submit to the
to
latter
usual, at least in
is
it
a draft of the intended
assurance, with the opinion of counsel as to
its
necessity
A distinction, however,
and propriety.
between mere agreements to convey by reasonable assurance, which are held to carry with them a right to cove2
nants for the title in the deed of conveyance, and a right
1
is
Lord Chancellor has expressed an

But in Hal-
opinion to that effect."
Middleton, 1 Russell, 249, a

case which occurred about the same
lett v.
where one had conveyed
time,
to
the debts of a partin

which
he had been ennership
gaged should exceed a certain sum,
trustees to
and the
sell, if
trustees, reciting that
the
debts did exceed that amount, conveyed to a purchaser by a deed in
which the heir of this partner joined

with a covenant for further assurance, and the purchaser filed a bill
to be observed
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; (Rosewel's case, 5 Rep. 19 b;

Bennett's case, Cro. Eliz. 9
Baker
Bulstrode, 2 Levinz, 95,) but by

the form of the covenant, as usually
expressed in modern times, the asv.
may be
surance
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
and deliver the
praying either for the production of
bound by law
the accounts to show that the debts
assurance presently upon request,"

and without time to consult with his
did exceed that amount, or for a

covenant for their production, the
bill was dismissed by Gifford, M. R.,
"
to seal
seems
counsel,
Moore, 182,
the
by
pi.
326, to
report
in
be rather
was one of the most
broadly laid down
extraordinary attempts at relief that

a court of equity has witnessed.
case, Cro. Eliz. 9,
The covenant
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 y. Cooke, 3 Dyer, 337 b;
Symmes v. Smith, W. Jones, 314
who
said,
it
creates no obligations
in respect of which the documents
should either be delivered to him or
deposited in a place of security, inasmuch as they are not part of his

title."
the text
The
was
precise point stated in

not,
it
will
be observed,
settled in either of these cases.

1
Some
make such
as-
and
in Bennett's
said that " B.
not only to show him the assur-
S.
Andrews
Anderson, 122; Heron
C. Cro.
Eddon,
Car. 299
M.
v.
v.
Maymoiul, 750; Miller v. Parsons, 9 Johnson, 836.

* See
infra. Chapter XI.
Tivyiif,
old authorities held that if
the covenant be to
is
it is
'2

to the insertion of those
assurance
"
itself.
covenants
Where
197
the deed of further
in
Lord
the agreement," says
St.
"
no
is to
Leonards,
convey an estate upon sale, it admits of
would
in
at
law
and
hoth
douht that the purchaser,
equity,
conveyance with usual covenants, although
in the agreement ;
nothing was expressed about covenants
have a right to
But where the conveyance is really

that would he supplied.
a further assurance, the purchaser must he supposed to
have already obtained all such covenants for title as he was
and therefore could not require any new ones
And however
from the seller in the further assurance."
entitled to,
this
may
be,
clear that the
it is
vendor
is
not, in the absence
of an express agreement to the contrary, bound to covenant

but it would seem that
further than against his own acts
;
out of abundant caution a stipulation to this effect is some2

times inserted by way of qualification to the covenant.
It
would seem
that in suing
the constant course of pleading
upon
is
this
covenant at law,
breach in
to assign the
1
2 Sugden on Vendors, 545.
It
secms at one time to have been
fied is thus
thought that upon an agreement to

convey by reasonable assurance, the
surances, or any of them, shall not

contain or imply any other or more
vendor was not bound
general covenants or warranty on

the part of the person or persons
to insert
any
covenants, "although they be ordinary and reasonable* yet the agree-
ment not being
to
make
it
with rea-
sonahle covenants, but only reasonable assurance-, he is not bound to

seal
it,
for
assurance,
it
is
and
not any part of the

the assurance may
be without any covenants;" Coles v.

Kinder, Cro. Jae. 571
Sheppard's
;
Touch. KJS; Wye

Leonard,
case,
"2
&
1
Throgmorton's
oO
Tudsey
Newsam, Yclverton, 44
Lassels
v.
v.
Catterton, 1 Modern, G7, but such

not the law at the present day.
is
The form
of a covenant so quali-
17*
nants, 347.
given in Platt on Cove" So as such further as-
who
shall be requested to make or

execute the same, than for the acts,
deeds and defaults of himself, herself
and
and
his,
utors
themselves,
respectively,
her and their
and administrators
the person or persons
heirs,
exec-
and
so as
who
shall
be
requested to do such acts, or make

such further assurances, shall not be
compelled or compellable,
for the purpose of making or doing the same, to

go or travel from his, her or their then
dwelling or place of abode or respective dwellings or places of abode."
198
v
the words of the covenant. 1
Some
particularity
is,
how-
be observed as to the form of the declaration.
ever, to
Thus where
the defendant covenanted
upon request by the

further assurance to him, his heirs and
make
testator to
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
enure, or
New
in
had, or to whose use the release was to
plaintiff'
was to be a party to it. 2

York, where upon a covenant that
why
S. A.
So
in a case
the defendant
would, upon the reasonable request of the plaintiff', do and

execute such further and other lawful assurances for the
and more
effectually vesting and confirming the

as
the
or his counsel should be reasonpremises
by
plaintiff'
ably devised, advised or required, the declaration averred
better
that the defendant's wife would, on her husband's death,
have a right of dower in the premises, and that the defendant had been requested by the plaintiff to execute a reasonable 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
notice of
to give
and allow him a rea-
to the defendant
it
it.
As no particular assurance
the
covenant
and
none specified by the
specified
defendant
could
not
know
the
what assurance was
plaintiff',
sonable time
to consider of
was
in
required.
1
Per Burrough,
Dymoke,
in Blickc
J.,
2 Binghara, 105.
v.
pro-
ccdcnt lor a declaration on this cove-
nant
will
,
be
ol.'l
found
;
in
sec also
Chitty's
Lutwychc,
284
King
v.
Jones,
Taunton,
418.
2
3
King
u.
Miller
See also
v.
Jones, supra.
Parsons, J) Johnson, 336.
Warn
r.
IJirkt'onl, 7

The
breach of this covenant occurs,
technical
199
it
would
to exeseem, upon the neglect or refusal of the covenantor
550
v.
S. C. 9 Price,
Thomas, 2
cited
N/////V/,
Gill
43
and
& Johns.
p. 187.
Gwynn
(Md.) 420,
In Blieke
v.
Dy-
of exemption must be shown by the

"I
confess," said Best,
" that unaided
Ch. J.,
by the light of
covenantor.
Bingham, 105, one purchased

a house- which was the subject of a tenancy lor life Avith remainder to first
and other sons in tail, and the tenant
former ages, I should have thought

a perfect stranger to the defendant
son
interest in the property as would authorize him to call upon the defend-
moke,
lor life
covenanted that the
first
who
should attain the age of twentyone years should, at the request of
ought to have given him notice that

he was become possessed of such an
the
ant for the performance of his covenant but by a series of cases it has
such
been decided that it is not necessary

and in two
to show any such notice
purchaser, well and effectually

convey and assure the premises by
dud
common
recovery, fine or fines,

as counsel should
of /(>/ (inxitnince
In an action on this cove-
advise.
nant,
the
averred the
declaration
and death of the covenantee,

and the descent on and seizing of
sei/in
plaintiff' as
tlu-
his heir, the attain-
ment of the majority of the
son, the
request of the plaintiff that a common recovery should be suffered, and

the neglect and refusal of the defendOn demurrer, it was
ant so to do.
of the cases, the reason assigned

this
that giving notice
is
is
no part of
the provision ; by which I understand

that it is only necessary for the plaintiff to
show
all
the covenant
that brings
him within
any ground of exemption 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 necessary at all events, and that the words
;
have been
" as counsel should

advise," only re-
an averment that the defendant had
ferred to assurances other than a

" If a covenant be that
recovery.
a party shall execute such assurances
;cd that there should
title
having devolved
upon the plaintiff', and also that it
should appear that the suffering of
the recovery was advised by counsel,
notice of the
oi
15
which the defendant had notice.

ut
the
Court of
Common
Pleas
upon the authority of Reynolds

r.
Bos. & Pull. 625; Skip
Davit's,
r. Hook.
romyns, 625 Bristow and
r.risli)\v.-'s ease, Godbolt, 161
Hingi'M r. Payn, Cro. Jac. 475
Alfrey
held,
Blaekamore, 3 Bulst. 326, &c., that

the first averment was unnecessary;
that the plaintiff need only show all
v.
that might bring him within the words

of the covenant, and that any grounds
as counsel shall advise, the plaintiff
must show what has been advised

but that is not the covenant the
breach of Avhieh is complained of
;
here.
In the
first
instance the de-
fendant only engages to cause a recovery to be suffered, and he did

not want to be told by counsel that
such a proceeding was
necessary,
because, in the language of the deed,
it is
admitted to be necessary.
The
recovery he was to cause to be suffered at all events, but not to do
more
unless counsel should advise
200

Until such refusal, there can
cute the further assurance.
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
covenant in equity, there
is
little
authority to
this
guide us in
In
considering the question of the measure of damages.
2
a
woman
seized
of
certain
v.
Jones,
King
being
premises,
She subsequently married,

mortgaged them for ,300.
and her husband and herself, in consideration of
300 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-
This conveyance was of course inoperative to pass
ance.
of the wife by reason of no fine being levied for

3
After the death of the wife, her devisee filed
that purpose.
the
title
against the
bill
under
this
plaintiff,
who was
conveyance, praying to be
the heir of the grantee

let into
possession, and
convey the same to

him on payment of what might remain due of the 300
after accounting for the rents and profits, and a decree and
that the plaintiff should be decreed to
this is the strict
meaning of the
Ian-
guageof the covenant, and the words

" as counsel shall adoise" do not overrule the whole of the preceding sentence, but only the stipulation for
assurances
meaning
fMi.'iirc
other than
a recovery,
collecting the
of the deed from the Ian-
Therefore,
strictly
of the deed
itself,
our judg-
rnent must be for the plaintiff."

1 Sec
infra, Chapter VIII.
2 5
Taunton, 418.
3 It is
scarcely necessary to
tion that until the
statute 3
menand 4
Wm. IV. c.
74, the only mode in Kngland by which a married woman's estate in land could be passed was by
levying a fine, the simple process of
acknowledgment upon M-panite exanimation which
prevailed
in
this
country almost from its settlement,

not having been there adopted until
the statute ivf'envd
to.
201
reconveyance were made accordingly, upon which the plaintiff

brought suit against the executor of the husband, who
had been the covenantor

that the grantee
had
On
in the deed.
in his lifetime
and
the trial
it
appeared
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

so much of the purchase-money as the plaintiff
<S55,
of
had not been repaid as assignee of the mortgage under the

100 interest; upon which the defendant
and
decree,
in
arrest
of judgment on the ground that the
moved, first,
breach having been in the lifetime of the ancestor the damages belonged not to the heir but to the executor ; and
secondly, in reduction of damages, that the plaintiff was not
own
to the .100 interest, for it was the
plaintiff's
entitled
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
lent or greater
he would be entitled to an equivaanother name, it would be use-
sum under
1
grant a rule upon that ground, and upon the motion
arrest of judgment, it was decided that the ultimate dam-
less to
in
age not having been sustained
in the
the action remained to the heir

1
In the course of the

argument,
" In the
Mansfield, Ch. J., said
present case the ancestor might have
sued and could have recovered the
:
whole value of the estate
at this time
of day there could have been no

upon that point," but in
difficulty
delivering the opinion of the Court,

" The ancestor
Heath, J., said:
paid
time of the ancestor,
(who represented
his
purchase-money, relying on the

he required him
vendor's covenant
to
the ances-
perform
it,
but gave him time and
did not sue him instantaneously for

his neglect, but waited for the ac-
He
was
do so until the
was
sustained, for
damage
otherwise he could not have recovered the whole value."
count.
ultimate
to

tor in respect of land as the executor did in respect of
per1
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
entitle the plaintiff to
would not of
itself
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.
1
tion
is
This part of the case
the ques-
whether the heir or the executor
the party entitled to sue
upon the
covenant for
title is
Chapter VIII.
considered, m/ra,
203
CHAPTER
VII.
THE
constant use of this covenant in conveyances on this

side of the Atlantic, gives to it an importance which deserves
1
careful inquiry, as although it is sometimes used in addition to some or all of the covenants which we have been
it
considering, yet
is
not unfrequently, and in some States

2
almost invariably the only express covenant employed.

The origin and effect of the ancient common-law war-
it is
the subject of the first chapter,

ranty have already formed
where a sketch of its general character and incidents was
It was there seen that
warranty was, in its
attempted.
1
It
that
has been said from the bench
" few
subjects
understood by courts
tin-
action of covenant
of warranty."
Martin
&
Catron, J.
if,
were so badly
and lawyers, as
Yerger, (Tenn.) 62, per

But it may be doubted
practically,
censure
is
upon clauses
Randolph v. Meeks,
the
deserved
severity of this
as although the
subject has never, since
its
application
with truth, after a practice of more

than a quarter of a century, that I
never saw a deed containing, in so
words, definite and precise covenants of seizin
right to convey
many
enjoyment
against incumbrances, and for further assurance.
These are all designed to be included
in the general covenant of warranty
for quiet
of
title
against
all
claims."
Such
too
to
modern conveyancing, received a

connected and separate examination,
appears to be the course of conveyancing generally in the Southern and
yet the authorities exhibit far less

want of harmony than might reason-
Western
ably have been expected.

2 As an illustration of
in PennsylWest, 2 HarCaldris, (14 Penn. State R.) 336

well v. Kirkpatrick, 6 Alabama. 61
and infra, Chapter XI.
vania
States, as
see Stewart
it
is
v.
was
said by Lumpkin, J., in Lean* v.
Durham, 4 Georgia, 601, " I can say
this, it

relation between
origin, one of the incidents of the feudal
the lord and vassal, and enured to the latter as a necessary
consequence of or return for the homage by which the land
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
itself or
any of its
repelling the lord from claiming the land
was
and
held,
profits,
its
operation
except those which, under the feudal contract, were
justly due to him.
two centuries
that elapsed between the passage of the statute de donis? and the decision in Taltar urn's
3
from the reign of Edward I. to that of Edward IV.
case
During
the
the whole subject of warranty
was perplexed and entan-
gled, and it was during this period that collateral warranties were introduced as a means of barring estates tail, and
the original and natural effect of a warranty as an assur1
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
Co. Litt. 384
heirs of the feoffee.
b.
" an
Coke,
express warrantie shall
never bind the heirs of him that maketh the warrantie, unless (as hath
T)een
Litt.
said)
384
Hence
b.
Co.
they be named."
Fitz. Nat. Br. 312 a.
;
But when, by the introduction of

deeds or charters, a warranty was
thus expressed in them in words,
appears, that during the

period when warranties were implied
as incidents of tenure, their burden
although the estate might be given
bound the warrantor and his heirs,

and their benefit enured to the warrantee and his heirs, so long as the
feudal relation between lord and vas-
and
to the feoffee
there were u
his heirs, yet if
warranty to the
feoffee
his heirs,
only, without mentioning
there the warranty shall enure for
life
only, because
it is
taken
"
strictly
Executors of Grenelife v.
1 Dyer, 42 b.
Co. Litt. 47 a. and
while this was the rule as to the ben;
efit
was equally
if it were
d merely by the word war-
of the warranty,
so as to
rxpir
its
it
burden, since
ran/izo, without
I
In-
the
adding et herides mei,

warranty would endure only for
life
of the
warrantor, as says
sal
it
demanded from
ligation of
homage
the latter the ob;
but when war-
"
were " expressed by deed (as
"
warranties in
distinguished from
law,") their burden or benefit passed
no further than the words of the deed
ranties
strictly authorized.
2 13 Ed. I. c. 1.
Year Book, 12 Ed. IV. Mich.
case 25
sec supra, p.
6.
19,
205
ance to the purchaser was almost lost sight of in compariHence it is that

son with its operation by way of rebutter.
pages of Littleton, who wrote shortly after Taltarum's case, filled with matter which is not only unprofit-
we
find the
able at the present day, but which, even
at
the time
when
Lord Vaughan wrote, seems to have been but little appre1

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
practical means by
2
There
in fact simple.
The
were
law forms of
action, in
remedy
to the purchaser.
which a warranty was enforced,

were certain of the old common-
which
one
if
who had
received a
warranty were impleaded, he had the power by virtue of a

" summoneas ad warrantizandum" of
bringing in his warrantor as the real party to the action, and thus make him de-
and the process itself was* called "voucher."

But there were also many actions by which a title might
fend the
title;
be assailed, in which the warrantee had not the benefit of

3
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 operated as a
favor against the warrantor,

giva right to other lands of equal value to those which
ing him
had been
judgment
lost.
in his
Whether,
in case the
warrantor had no other
lands, the warrantee could recover
personal action,
See supra,
Such
seems not
to
damages, as in case of a
have been very uniformly under3
p. 7.
as mortdancester, writ of
rightofanadvowson,writofadmeasurement of pasture, &c.

Viner's
Abridg.
tit.
Voucher, Q.
18
Such
as a writ of dower, a writ of
assize, a writ of
of an
assize,
entry in the nature

a quare impedit, &c.
Viner's Abridg. supra,

Brev. 134.
Fitz.
Nat.
06
stood in later times.
By the
another
sal
feudal law, as
was obliged
continent, the warrantor
of equal value, or
fief
the value in money.
if
it
existed on the
to give his evicted vas-
he had none, to pay him
Dr. Sullivan, however, goes
to the
extent of saying that " our law went no further than to

5
give a recompense of equal value in other lands."
But
was also very frequently

warrantee was im pleaded in any action.
the writ of warrantia char tee
employed before the
In such case he brought his writ quia timet implacitari?

1
the land, then he shall have execution of land in value and damages,
Butler's note to Co. Litt. 365 b.
2 Sullivan's
Lectures,
cited for this
is
authority
119, but
no
and where no land
position.
is
to
be recov-
ered in value, there he shall lose his
In Fitzherbert's Nat. Brev. 135, it is

" If a man be
said,
impleaded in
a
writ of warhe
and
assize,
brings
warranty, as
voucher."
3
and counts that he is

and that he
impleaded by
rantia chartae,
"
assize, &c.,
upon recovery upon
Year Book, 24 Ed. IE.
And
man may
35.
sue forth this writ
the plaintiff recover
of warrantia chartas jbefore he be im-
warranty, he shall recover his

damages, and also to have the value
pleaded in any action, but yet the

writ doth suppose that he is implead-
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
ed
hath
lost, &c., if
his
damages
H.
6,
31."
(This
is
him
"
:
not
all
plaintiff
et
to warranty,
loseth,
and
judgment
to
and he entereth
warranty and pleadeth and

and that the defendant re-
cover in value, the defendant shall

have in value of the lands against
nor more than in vouchages tantwn,

The passage thus cited from
as follows
the defendant appear
into, the
the vouchee, which he had at the

time of the purchase of his warrantia
er."
Judgment and
recovery in warrantia chartae is to

have land in value and damages, and
if
recover his warranty, so as if the defendant be after impleaded and vouch
he shall recover damages only. But

it seemeth by Br. War. Char. 81, that
if he hath no land to be recovered in
value, that he shall not recover dam-
is
and
the plaintiff shall have
a mis-
reference, as is also the preceding

" It is holden that in this case
one.)
Brooke
say that he is not impleaded, by that

plea he confesseth the warranty, and
chartae
icy
and therefore
to bring
'
against
his
it is
good
pol-
warrantia charta?
him before he be sued,
to
damages, and where the
bind the lands of the vouchee which
in this action recovers pro loco
he had at that time," etc. Fitz. Nat.

Br. 134. In the first sentence of this
in
tempore, and has not lost any land,
if he shall have any

damages and it would seem not, for
he is not yet damnified but if he lose
query, there,
;
passage, the defendant first referred

to, means the warrantor, that is, the
defendant in the warrantia charte.

and
if it
less,
were found that
were not groundby means of a judg-
his apprehensions
he was assured from future loss
ment pro
207
The
loco et tempore.
of this judgment was,
effect
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
have prevailed as
to the
pore the warrantee

yet he has
lost
contrariety of opinion
damages on a warrantia
the authorities say that
all
some
shall
may
chartce, as
by a judgment pro loco et tern"

1
recover no damages, because as
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
2
judgment given, provided, however, that in case of a suit

brought after the judgment pro loco et tempore^ the warAfterwards
it
means the warrantee,
the defendant in the action brought

to recover the land.
Year Books, 24 Ed. III. 35

Br.
8 Ed. IV. 11
2 Hen. IV. 14
Warr. Ch. 31. The following case
l
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
what
effect
Common Bench,
judgment
of
in warrantia
and it
was moved that a warranty was no
more than a covenant, and that by
chartce
pro
loco et tempore
such covenant a
man
is,
should not bind
land to be bound in value afterwards

in
whosoever hands they might come
ment above."
12.
The
case
Viner, War. Ch.

It
is
much
M.
to
pi. 3.
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 conwhich they present, which
trarieties
would doubtless be
to
some extent ex-
of these
plained, could the contents
volumes be presented in a more famil-
be too great a mischief

but otherwise it seems by the special judg-
Roll
pi.
and is therefore somewhat differently rendered in the translation in

8),
iar shape.
2 Viner's
not quite correctly
copied into Brooke (Warr. Ch.
by purchase or otherwise, without

judgment in any action, for this would
.
See also 12 Hen. IV.

is
Abidg. War. Ch. M. 4

Fitz.
Osborn, Hobart, 25
Nat. Brev. 135.
v.
208
rantee had, as by analogy to voucher, notified the warrantor
and requested him
But
to
defend
it.
and of warrantia
was
chartce,
only capable of being employed when the
adverse title was one that affected a freehold interest in the
the machinery, both of voucher
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 incumbrance 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 chartce, for there
was no
was merely a
;
chattel interest, to recover which those actions would not
lie.
But, as it would be hard to leave the warrantee remeloss of
a freehold estate out of his land
diless in
such case, the
warranty as a
common law
it
allowed him to use his
mere personal covenant, on which he could
2
recover damages to the extent of his loss.
1
Per Markham, Ch.
J., in
Year
" If I recover
Book, 8 Ed. IV. 11.
from my warrantor a judgment pro
loco
et
tempore,
and
then'
am
im-
of years.
The
The only
class
lessee entered
upon
the grantees, who brought an action

of covenant on the warranty, in which
the warrantor pleaded a warrantia
pleaded in an action in which I cannot vouch, as for example, an assize
chartse brought against
proper for me to
request him from whom I have thus
recovered, to put in a plea for me,
demurrer, the question arose, whether

upon the warranty annexed to a freehold, an action of covenant would
or scire facias,
it is
and thus give him notice of the
ac-
which was
lie,
and "
still
it
him by them,
undetermined.
was agreed by
Upon
all
the
Exchequer Chamber
pending, as otherwise I
shall not be allowed to have execu-
Judges
tion on
because that though the warranty

was annexed to a freehold, yet the
tion that
is
my judgment."
2 This was decided in the case of

Pincombe v. Rudge, reported in Hobart, 3
Noy, 131 Yelverton, 139,

and affirmed on error, 1 Rolle, 25.
The defendant had granted a free;
hold with
warranty, having previously demised the premises for a term
in the
that this action of covenant will
lie
breach and impeaching was npt of a

freehold, but of a chattel (that is to
say), of a lease for years, for which
there could neither be a voucher, rebutter, or warrantia chartae ; so that
though there had been a judgment in
209
of cases, however, in which warranty was thus employed as a

personal covenant was where the loss did not draw away a
remedy was by voucher
In every other case the
freehold.
or warrantia char tee, 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," but 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 instance, recoverable.
Where
warrantia chartse in the case, yet

neither upon entry, nor upon recovery in eject, jinnee upon this lease,
there could be neither voucher, nor
rebutter, nor value
rantia chartse
warranty
is
upon
and therefore a
real
a covenant real, when
the freehold
is
But when a
lease
any other
the war-
loss
brought in question.
is in
question, or
that doth not draw
the covenant of warranty
was
pense and a covenant annexed to

the land which is to yield but damCo. Litt. 384 b. In Jacock's
ages."
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.
made a
J.,
" the law has
a personal covenant, whereupon damages may be recovered so it is both a
between a
covenant real and a covenant personal
and to a warranty alone in
and personal covenant

ends and respects.
And
was
the original and proper sense of the

term, has it imparted the effect of
adjudged for the defendant upon the

writ of error."
So, where the warranty was contained in a lease for
because he, and not the executor, is

bound to warrant and secure the land
away
the freehold,
it
may
be used as
real
years.
" If a
man
to several
so
it
lease for years with
clear distinction
intercepting the descent to the heir,
to the
covenantee (warrantee) and
against
The use and adoption of

the form in which the ancient war-
the lessor and against his heir also, if

the ancestor had bound the heir to
ranty is expressed, would indicate

the intention of the parties to avail
warranty." Brooke, Descent, 50 (citing 32 Hen. VI. 32), Covenant, 38.
themselves of such remedies as ap-
warranty, and the lessee

title, action of covenant
is
ousted by
lies
"
There is a diversity," says Coke,

" between
a warranty that is a covenant real which bindeth the party to
yield lands and tenements in recoin-
18*
his heirs.
pertain to the warranty only, and the

change of that form will justify the
that they deabide by the security which
In this
afforded by covenant."
reasonable inference
signed to
is
210
spoken of as a covenant real, it was so termed as distinguished from covenants which did not run with the land ;
seems
in other words, the old distinction
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
instance) as a recompense, was a covenant real, as

distinguished from those which bound executors, on which
the
first
damages alone were recovered, and which were,

termed personal covenants.
therefore,
Then, as the ancient warranty
warranty (which was however, by no means frequently used in England) was classed
with covenants to repair, to levy a fine, &c., which ran with the
fell
into disuse, the covenant of
land,
and which, though yielding damages, were sometimes

from those which had
called real covenants, as distinguished
not the capacity of running with the land. 1

From the comparative want of authority on the subject,
it is difficult to trace with
precision the introduction and
use of the covenant of warranty, as distinguished from the
itself.
The earlier settlers of America left
old warranty
their
mother country about the time when the modern syssaid to have had its rise at the
tem of law, which may be
end of the reign of Henry the Seventh, had, towards the

latter part of that of Charles the Second, assumed someit seems to have been doubted
whether a discontinuance did not
necessarily bar the issue in tail,
case
Such, however, was not the case,
says,
" the issues are not barred un-
is a common
recovery, or
with proclamation, or in some
special cases, a warranty." Preston's
less
there
fine
Although the issue might be obliged

an action in order to get
Law
action there
possession, yet in that
was nothing in the warranty of the
rebutter or estoppel when used in

modern conveyances, Chapter IX.
1 For
the consideration of tin*
to bring
ancestor, since the statute de donis,

to prevent a recovery ; Butler's note
to
Co. Litt 830.
tract of
Mr. Preston
So, in the able
"On
the effect
of fines, &c., by tenant in
tail,"
he
See further as to
Tracts, 29.
the effect of a warranty by way of
doctrine of covenants running with

land, so far as connected with core-
nants for
V11I.
title,
see
infra,
Chapter

1
Of the changes which marked
thing of a regular form.
this period, the discontinuance of real actions was one, and
the emigration to
America occurred about the time when
had ceased
their use
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 ProtecThe ancient warranty was nearly out of use, and
the modern covenants were not fully in use, and, at this
torate.
we may judge from
the scanty authority on the

of
warranty was introduced, and
subject,
seemed to hold a middle ground between the old warranty
period, if
the
covenant
on the one hand, and the more modern covenants on the

and although superseded in England by the latter,
;
was brought to this country by our ancestors, and has since,
other
throughout
its
breadth, been extensively used, and become,

2
perhaps, the principal covenant for title.

But its precise nature and attributes seem not to have
"
The
principal features of this
accurate note to the case of Foote
alteration
were the introduction of
Burnet, 10 Ohio, 322, Mr. Wilcox,

the reporter, seems to think that both
recoveries,
conveyances
to uses,
the testamentary disposition by wills,

the abolition of military tenures,
the statute of frauds
and
perjuries,
the establishment of a regular system

of equitable jurisdiction,
the dis-
continuance of real
the
mode
of trying
actions,
titles to
and
landed
property by ejectment. There is no

doubt that these have produced a
material alteration in the jurispruthis country ; but
they have
dence of
it not so much
by supersedby giving a new direction to
the principles of the old law, and
applying them to new subjects."
effected
ing, as
Charles Butler's Reminiscences, 116.

a In a
learned, and, in general,
v.
the old warranty and the modern covenants were used in our early con-
veyances.
His language
is:
"Our
who emigrated just about

time the modern covenants for
ancestors,
the
were coming into use in the

mother country, and before the warranty had been entirely abandoned,
seem to have brought with them both
title
modern covenants and the warand while the former alone

were soon found to be a competent
the
ranty,
assurance of
title
in
England, both
the warranty and the modern covenants continued to be used in our
and to have both

come down together to our own time."
early conveyances
On the one hand, it

been very consistently agreed upon.
to
been
have
appears
very generally thought that the modern covenant of warranty is neither more nor less than the
old
common-law warranty
stripped of
its
voucher and ivar-
rantia chartce, and turned into a personal covenant
and,
on the other, that it is synonymous with the modern covenant for quiet enjoyment. But the first of these conclusions
is
far
from correct and the second must be taken with some

;
The
origin of the former may be traced to

an expression in an early case in Massachusetts, 1 where it
was remarked, " The remedy to recover a recompense in
qualification.
other lands to the value existed very anciently, when the

principal consideration received on the alienation was the
The remedy might

services to be performed by the tenant.
then be proper, as any improvements of the land thus paid
must redound wholly
advantage of
the tenant, as his services to the lord remained the same.
for in services,
to the
But when lands were aliened for money, when improvements in agriculture became an important object of public
when the alienor might have no other lands to
policy, and
render a recompense in value, it became expedient that
another remedy for the purchaser on eviction should be
And it is certain that, before the emigration of
allowed.
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,
said to be true at
any time previously
and might have been

but if, as the whole
context would seem to imply, the idea is meant to be conveyed that with the change of the times and the frequent
money, the recovery on a warranty

money or land, and that the warrantee
alienation of land for
was
optionally
J
either
Gore
v.
Brazier, 8 Mass. 544, per Parsons, Ch. J.
213
either bring covenant or warrantia chartce at his pleas-
might
ure, the position will be found to be unsupported

This has been very clearly shown
in a note to the case of Pincombe
1
v.
Rudge,
American
port, 3,
guished
in
Mr. Justice Williams's

of Hobart's Re-
edition
u from the
pen of a distinwhom
the editor is not
jurist,
"
name
(by whom, howmeant the late Judge Story,)
which has been thus inserted, somewhat abridged, in the 10th volume of
" But
the American Jurist, 119.
at liberty to
ever,
is
Chief Justice Parsons, in Gore v.

Brazier, 3 Mass. R. 523-545, held
that a personal action
would have
England upon a covenant

of warranty annexed to a fee, and
where the ouster was of the freehold
lain
in
by title paramount. And he cited

1 Brownlow, 21
2 Id. 164, 165, as
;
The case cited, I suppose,

Waters v. The Dean of Norwich,
in point.
is
Brownlow, 21 S. C. 2 Id. 158,

&c. But there the plaintiff sued on
a covenant to save harmless, &c.,
during the term, which was for life
and the breach assigned was a disturbance by an antecedent lease to
one T. for years. So that the case
was not different from that in Ho1
the freehold not being

bart, 3
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
determined.
So, also, he
supposed, to express real covenants,
which extend to freehold or inheritestate
is
ance, as warrant and defend, upon

which a man cannot have an action if
he be not ousted by one which hath
This
title.'
last
by authority.
sentence
that
is
upon
which Chief Justice Parsons seems

to have relied but it is manifest that
Lord Coke was referring to the difference between a covenant in law
and an express covenant, and not
to the cases in which covenant would
lie on a warranty.
According to the
;
Pincombe v. Rudge (Hob. 3),

no doubt that covenant would
case of
there
is
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
lie, if
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, equivalent to a covenant for quiet enjoyBesides, the case in Brown-
ment.
low was decided in 10 Jac.

that
Pincombe
of
finally
decided
Chamber, by
Jac.
1
and
Rudge, was
the
Exchequer
the Judges, in 11
therefore, if there be
all
And
1.
in
v.
any discrepancy between them, the

principle established by all the Judges
in the last case,
seems to
it
me
is
the true one.
that there
is
And
a neces-
sary implication in this last case

against the doctrine of Chief Justice
Parsons.
he
At
all
events, the authority
on does not support his dicThe remainder of the note to
relies
tum."
the case of Pincombe y. 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

The
referred
expression
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 sup1
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
2
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 char tee can be
3
brought.
is another and more
important distinction between
modern covenant and the ancient warranty, than the
mere form of the remedy. Even if the law were that, with
the advance of time, warranty became gradually employed
There
the
has been
nected form on this side of the At-
erwise able argument, insisting that

because voucher and warrantia char-
lantic.
tae
title
Allison
treated
v.
in
con-
Allison,
Yerger,
Bell, 3 Bibb,
(Tenn.) 24 Booker u.
(Ken.) 173; Townsend v. Morris,
Rickets v.
6 Cowen, (N. Y.) 127
;
Dickens,
Murphey, (N. Car.) 343.
Townsend
Stout
v.
Morris, supra.
Jackson, 2 Randolph,
(Va.) 148, (see three elaborate opinv.
ions in that case)
Tabb
v.
Binford,
4 Leigh, (Va.) 132; Chapman v.

Holmes, 5 Halsted, (N. J.) 23 see
the remarks of Tilghman, Ch. J., in
Jourdan v. Jourdan, 9 Serg. & Rawle,
;
(Pa.) 276. In Chapman v. Holmes,

both the counsel and the Court seem
have overlooked the distinction

between a warranty and a covenant
the counsel, in an elaborate and othto
were the ancient remedies on the

still be so on the
former, they must

latter.
In Townsend
v.
Morris, 6
Cowen, 123, there was more room

for such an argument, for there was
no covenant in hcec verba, but the form
was as in the old charters, and the
Court, in deciding the obvious point
that the assignee of a vendee could
sue upon a covenant of warranty,

intimated that the tenant of the free-
hold always had his option to bring

covenant, or resort to the real action.
passage in Bac. Ab. Covenant, C.,

" in the eviction of a
freehold,
that,
no action of covenant will

warranty," was misquoted
v.
lie
upon a
in Pitcher
Livingstone, 4 Johns. 1 1, by the adcovenant of warranty."
dition of " a

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
between the warranty when thus

applied as a personal covenant, and a modern covenant of
The former had a much wider scope than
warranty itself.
was an obvious
distinction
We
have no reason to suphas been given to the latter.

pose that there was a different rule as to the breach of a
warranty when annexed to a leasehold, and when annexed
to a freehold.
Now, as respects the former, the covenant
word
demisi carried with it not only a covethe
implied by
nant for quiet enjoyment but also that of a power to demise,
and an eviction was not always necessary to its breach. 1 The
2
case of Holder v. Taylor, indeed, seems to make a difference between the breach of the covenant of warranty and
that for quiet enjoyment, while the
law seems
to
have recog-
nized no difference between a covenant of warranty of a

3
" The word
leasehold and of a freehold.
demisi imports a
letting, as dedi
power of
1
Pomfret
w.
Ricroft,
322, note; Holder
12
Line
v.
N. C. 183
Hainp. 219
Saunders,
v.
Taylor, Hobart,
Stephenson, 5 Bingham,
Crouch
Grannis
en, (N.Y.) 36
2
a power of giving," and although
v.
v.
Fowle, 9 N.
Clark, 8
CowX.
see infra, Chapter
Hobart, 12.
Holder v. Taylor, Hobart, 12.

" Holder
brought an action of cove-
whereupon
it
was objected that no

would lie, because
action of covenant
there was no expulsion.

But the
whole Court was of opinion that an
action did
lie
for the breach of the
covenant was in that the lessor had
taken upon himself to demise that
which he could not; for the word
;
demisi imports a power of

letting as
dedi a power of giving, and it is not
nant against Taylor and declared for

a lease for years made by the defend-
reasonable to enforce the lessee to
ant by the word demisi, which imand then shows

ports a covenant
enter upon the land and so to commit

a trespass. But if it were an express
that at the time of the lease made,

the lessor was not seized of the land,
covenant for quiet enjoying, there,

perhaps, it were otherwise." In the
but a
stranger,
and
nant in law broken.
so
the cove-
But he did
not lay any actual entry by force of

his lease, nor any ejectment of the
stranger, nor any claiming under him
;
previous case of Pincombe v. Rudge,

Hobart, 3, the action was on the war-
ranty implied by the word dedi. See

supra, p. 208.

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
And
even
tempore abundantly testify.
when used as a personal covenant by reason of being annexed to a leasehold, it seems still to have preserved these
judgment pro
properties,
loco et
though the means of enforcing them were
dif-
ferent.
But at the present day a covenant of warranty does not

It will be found to be .universally
contain these properties.
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 deciding that the covenant of warranty contains within it, each
of the five covenants for title, which would be a novel idea
for conveyancers
1
Patten
v.
and professional men." 1
McFarlane, 3 Penn.
R. 422, per Kennedy, J. In Jeter

v.
Glenn, 9 Richardson's Law R.
(S. Car.) 378, the Court seemed to
see infra, p. 219.

tration of the text
striking illus-
was shown in the
recent case of Dobbins
v.
Brown,
was " advancing the
2 Jones, (12 Penn. State R.) 75,

where one released to the Corn-
purpose of the legislature, promoting the usual intention of parties and
monwealth of Pennsylvania all damages which might accrue from its
answering the ends of
opening a canal through his land,

after conveyed the
land with a covenant of warranty,
consider that
that
it
it
contains
all
justice, to say
the
five
cove-
nants which -English conveyancers

usually insert in conveyances in
fee-simple," except, perhaps,
it
was
doubted, of the covenant for further assurance.

The construction,
however, which was from an early

day given to the covenant of warranty in South Carolina was peculiar,
ancf has not
been elsewhere followed,
and many years
and the canal being subsequently

opened,, the purchaser brought a suit
on the covenant, and obtained a ver-
But the judgdiet for a large sum.

ment was reversed by the Supreme
ourt, who held that the mere disturbance on the part of the
Common-
wealth, being in the exercise of its
rii:ht
TIIK
COVENANT OF WARRANTY.
217
has been often urged, in cases of

of warranty should, in
hardship, that the modern covenant
Although, therefore,
it
even
modern covenant of
of eminent domain, was no breach of
ness,
the covenant, and that the prior release of the damages, if an eviction
warranty has given place, in English

conveyances to the common cove-
of any right, was an eviction of the

grantor's right, as the grantee could
nants for
not be evicted of what he had not
Pennsylvania, it has been retained

by unprofessed scriveners as a nostrum supposed to contain the virtues
received
that " the claim to com-
pensation, being no more than the

benefit of a chance, was an ideal
and though of appreciable

value, it would not have fallen within the ancient warranty, which had
regard to things corporeal, and difthing,
fered
from
its
successor chiefly in
regard to the voucher to warranty

and the recompense in value
it
;
could not therefore
modern covenant."
fall
within the
It is
evident that
the conveyance had contained a

covenant for quiet enjoyment, in
the form heretofore expressed, supra,
if
this
title
which
fects,
it
against particular dedoes not reach. In
of the'whole five
but
its
potency has
not been recognized by the bench.

The writ of warrantia charts 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 warrant, the land by defending the action
;
the
modern
writ
of covenant
is
brought against the grantor to recover damages for a failure to do so.
The gravamen,
defect of
title,
therefore, is not the

but the eviction con-
the purchaser must have been entitled to recover.

" The
sequent on it."
In a note to the case of Paxton
ranty," said Gibson, Ch. J., in the
the
recent case of Stewart
porter, the
modern covenant of war-
v.
Lefferts, 3
Rawle, (Pa.) 68, from

pen' of the father of the re-
Harris, (14 Penn. State R.) 338, "differs from the ancient
warranty, not
difference between the

warranty and the covenant is thus
adverted to " Warranty, in its orig-
because the latter bound the feoffor

to defend the land, but because it
inal form, has long

both here and in
v.
West, 2
been abolished,
but
The
England.
more plain and pliable form of covenant has been substituted.
The
as well as the nature of the recom-
grantor, for himself, his heirs, &c.,

covenants, with the grantee, his heirs
bound him
to render, not
damages,
a recompense in kind for a
breach of it. The form of the writ,
pense in value, was different, but the

measure of the obligation was the
The
same.
warranty
feoffor
was bound
defend the land
1>\
his
the
bound by his covenant to

much, and no more, by defend-
grantor
do as
to
is
ing the grantee from eviction on a

superior title. By reason of its strait-
19
and
he and his heirs,

and administrators, will
warrant and defend the premises
assigns, that
executors
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
do more than protect against a mere ouster

of the possession, and should be made to partake of the
its
application,
nature of a covenant for seizin or of
such a construction
in
If
original nawas obliged to
its
warrantor
render land only, the covenantor
might, perhaps, be entitled to tender
ture, the
land as a compliance with his covenant, and might also avail himself of
the niceties and subtleties which
all
characterized the ancient doctrine.

" It
is
that in
true,
damages were
the
some
cases,
also recoverable
If a
warrantee.
convey, yet
been almost universally denied, and
lias
admit of a curious construction.
by the warranty
to
rig-ht
man
by
be im-
assize, &c., and he brings

a writ of warrantia chartae, if the
recover his warranty, he
pleaded in
plaintiff
shall recover his
damages, and also

have the value of the land lost.
But it would
Fitz. Nat. Brev. 315.
to
ment on illegitimate children, of real

and personal estate, with a covenant
to warrant and defend, Lord Hardwicke held, that the word warrant
must be construed
than warranty in
*
in a larger sense
its strict
legal sense
There being
as large as defend.'
personal property included in the

covenant was adverted to by his lordship,
but in reference to the real
was
estate, the distinction
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
See
to defend.*
Kent's Commentaries on American
Law, Vol.
4, p.
457
in
which the
'
seem that the same rule did not take

the warrantor was vouched,
place, if
'
and not sued by warrantia

Br. Warr. Chart. 31.
" We have no reason, to
chartae.
the praise it deserves.

" The result on the whole seems to
believe,
be, that a covenant to warrant
that, in this State,
a covenantor ever
learned opinion of Judge Duncan,

11 Serg. & Rawle, 109, is cited with
defend
is
to
and
be construed a covenant
attempted to discharge himself of the

covenant to warrant and defend, by
to
pleading that he was always ready*
running with the land, to defend the

covenantee, his heirs and assigns;
and that it precludes the grantor and
convey lands of equal value, or by

showing that he had no notice of the
eviction, and no demand of other
all his
land, &c.
enant
like
On
all
the contrary, the covother covenants, has
always been held to sound in damages merely, which, after judgment,

may be recovered out of the personal
or real estate, as in other cases.
admitted
iii'lrcd, the covenant
such a construction,
would be gained by
of Williamson
v.
little
it.
If,
of
advantage
In the case
Codringt(jn,
Vesey,
510, which was a voluntary settle-
heirs
the heir at
and
assigns, (not
common
merely
law,) from claim-
ivul
ing it; and it binds all his estate,
and personal, in case of eviction by a
stranger, to the amountof the damage!
sustained." See passim the remarks
in Rector
v.
Waugh,
17 Missouri.
-_M.
* It wns otherwise, however, by the

733): "It
old law, as Littleton says, (
sccMiifth that this word (defend), hath not
the effect of wan-antic nor roinpivhtMuU'tli
the cause of warrant ii'."
and note.
See </''"
!'
--'"'
19
well settled that a covenant of warranty cannot at the

as to import a covenant for
present day be so construed
1
seixin or of right to convey.
it is
In South Carolina, indeed, a course of decision, which

does not seem to have been recognized or applied beyond
2
the limits of that State, has enforced a different rule, and
1
Blydenburgh
v.
Cotheal,
Duer,
(N. Y.) 195; Caldwell v. Kirkpatrick,

6 Alabama, 62
Allison if. Allison, 1
;
Yi-rger,
Stump,
Crutcher v.
(Tenn.) 25
5 Hay wood, (Tenn.) 100;
;
overrruling. (said Catron,
dolph
v.
Meeks, Mart.
the case of Talbot
v.
J., in
&
Ran-
Yerg. 61,)
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
mode of redress, of quiet enjoyment;" Witty v. Hightower, 12

Smedes & Marsh. (Miss.) 478 Griffin
the
v.
Fail-brother, 1 Fairfield,
(Me.) 96
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-
But we regard a covenant
joyment.
of this description as something more

than one for quiet enjoyment. It is
a covenant to defend, not the possession merely, but the land and the
estate in it.
Upon this occasion, we
are to suppose the
derived from
title
the defendant to have been fairly

litigated
The
plaintiff
act
and adjudged insufficient.

ceremony of turning the
out of possession, being an
after
beyond the control of either of
these parties, and depending wholly

upon the pleasure of a stranger,
Vanderkarr v. Vanderkarr, 11 Johns.

122; Greenvault v. Davis, 4 Hill,
ought not to affect the present rem-
(X. Y.) 043
edy of the
Serg.
Clark
& Rawle,
In Drury
v.
v.
McAnulty,
He
plaintiff.
has the stip-
(Pa.) 364.
ulation of the defendant that he shall
Shumway, D. Chip-
forever hold this land,
man, (Verm.) 110, and Williams

r.
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 covenantor had notice
in other words
mere omission to " warrant

and defend" the land was a final
that the
in,
the character
which he purchased it, as a freeholder in fee-simple, and this stipulain
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,
Lanham,
304
Moore v.
The covenant
J., in
by Earle,
3 Hill,
"
:
" The last

breach.
objection supposes," said the Court in the latter
" that a final
case,
recovery in ejivt-
of warranty has always been considered as broken, whenever a para-
ment, by a title adverse and paramount, is not a breach of this covenant, but that the plaintiff must have
other
mount
title could be shown in anand it has been uniformly held

that the vendee might bring covenant
on the warranty, or resist an action
;
220
give to a covenant of warranty the effect of a covenant for

seizin
and in Ohio, statutory provisions on the subject for;
1
merly existed which have since been repealed.
The
peculiarities then of a
a covenant,
may
as*
warranty
summed up
be thus
distinguished from
which was either by voucher,

to
a
summons
warranty, and followed by
commencing by
a train of other writs, 2 or, where voucher was not admissiFirst, as respects the process,
by a writ of warrantia
ble,
charlce.
this, in case of a
Secondly, as respects the judgment
voucher, or warrantia chartce after suit brought on the
;
adverse
title,
was
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
If the warrantee chose to proceed before
adverse suit brought, and obtained judgment on the war-
the warrantor.
for the price, without actual eviction
v.
Whitten, 1 Bay, 254 Bell

Higgins, Id. 326 Sumter v. Welch,
Pringle
v.
558
2 Id.
1809
man
Johnson
v.
Collins,
v.
v.
Johnson,
Viscon, 1811 Fur;
Elmore, 1812; Mackey v.

2 Nott & McCord, 186." See
also Faries
Law
Champness
Smith, 11 Richardson's
rule as to the cov-
v.
The
R. 82.
enant for quiet enjoyment seems to

be different Singleton v. Allen, 2
;
Eq. R.
Strobhart's
173; Jeter v.
Glenn, 9 Richardson's Law R. 378.
The course of decision in this State
as to this point is more particularly
noticed in the last chapter of this
treatise.
"
trict,"
says
Ohio, 828,
to a
covenant
till
actual eviction.
The
occupants of some large surveys in

that district, who found themselves
in quiet possession, but without any
and so could neither improve
title,
sell them, made application to the Legislature of Ohio, and

in 1815 a statute was passed, under-
the lands nor
taking to give a grantee (with a covenant of warranty) a remedy before
The Act is said to have

been so inartificially penned as to
be incapable of any reasonable conIt was repealed in 1831
struction.
Chase's Laws, 855, 1906 see 1 Ohio
Rep. 389 2 Id. 346 3 Id. 525."
eviction.
1
The insecurity of title to real
estate in the Virginia military dis-
in a note
warranty, on the ground that the

grantor cannot be made liable on that
Mr. Wilcox the

to
" is
common
reporter,
Burnett, 10
Foote
v.
said to
have given
rise
practice there, of using

no other covenant than the general
to
The
student will find a reference
these in a note to Carcswell
Vaughan, 2 Saunders, 32.

3 A form of this writ is
given
Fit/..
Nat. JBrev. 134.
v.
in

rantia chartw, this judgment, becoming a lien on all the
lands of the warrantor, remained a security to the warrantee
until
he
should lose the lands
warranted, when,
and not before, he was entitled to execution upon the judgment.
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
Thirdly, warranty,
bind executors or administrators.
possibility
But
the cove-
nant of warranty bound the latter, even when they were not
named in the deed, on the familiar principle that whenever
a testator
is
himself bound by a covenant, his executor shall
be. 1
always
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
warranty and a covenant.
between a
Their points of resemblance
were,
warrantor had no other lands to ren-
First, that in case the
seems that the warrantee was allowed damages which could be levied from the personal property, and,
Secondly, where the estate conveyed to the warrantee, or
der in value,
it
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

in cases where the latter covenant is exquiet enjoyment
pressed
1
in
the full
form
Brooke's Ab. Covenants,
in
pi. 1 2
which
;
TouchViner's Ab. Covenant, D.

stone, 178, 482 ; unless, of course, it
;
19*
is
it
is
usually set forth in
a covenant to be performed by the
person of the testator
Hyde
of Windsor, Cro. Eliz. 553.
v.
Dean
"
English conveyances, for, as was said in a late case,
covenant for quiet enjoyment, which resembles the modern
covenant of warranty, differs from it in this, that the former
is
broken by the very commencement of an action
better title."
There
is
in the
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 oper2
As a general rule, such

ation of the doctrine of estoppel.
to
be attributed to the latter covan efficacy does not seem
enant.
But, with these exceptions, it may be generally said that in

the United States, the covenants of warranty and for quiet
The same concurenjoyment are treated as synonymous.

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
ployed on
may
be noticed a covenant sometimes em-
but rarely, if ever, in

3
It is inserted
England, called the covenant of non-claim.
after
the
and
without
the usual
habendum,
immediately
words of covenant being
prefixed,
and
its
form
is
generally
Harris, (14
West,
Penn. State R.) 338, per Gibson,
Ch. J. This remark must, of course,
be applied to the covenant for quiet
the premises," &c., the remark would

lose its application, as the weight of
enjoyment when expressed at length,

in which any let, suit, interruption,
expressed, an eviction or something
Stewart
v.
disturbance, &c., are expressly cov-
enanted against.
But where,
as
is
often the case in this country, this

covenant is briefly expressed by the
" that the said
words,
grantee and his
heirs
and
assigns, shall quietly enjoy
American authority
to cause a
is
decisive that
breach of a covenant thus
equivalent to it is indispensable,
2
ee infra, Chapter IX.
8 It
is
very often
employed
in
Pennsylvania, and perhaps elsewhere,

in the extinguishment of a groundrent,

in these
words
heirs nor
any
"
So
that neither the said (grantor), nor his

other person or persons shall or will at any
time hereafter have, claim, challenge or demand any estate,

right or
title to
the aforesaid premises or to any part or parcel
thereof, hut of and from
all
such claims and demands shall
be utterly debarred and forever excluded by virtue hereof."

And where the covenant is to be limited to the acts of the
" so that neither the said
the
is,
expression
grantor,
(grantor)
nor his heirs, nor any other person or persons, whomsoever, claiming by, from or under him or them, shall or
will," &c.
As a general rule, no distinction has in any way been

taken between such a covenant, and the ordinary covenant
Both are, in general, held to have the same
of warranty.
1
both equally possess the

2
capacity of running with the land, and confer the same
by way of estoppel
operation
Fairbanks V.Williamson,
Green-
(Me.) 99 (but see infra, note 1

Kimball v. Blaisdell, 5 N.
to p. 224)
Hamp. 533 Everts v. Brown, 1 D.
leaf,
Chipman, (Verm.) 99 Trull

man, 3 Metcalf, (Mass.) 121
;
v.
Thayer,
Miller
v.
;
East-
Gibbs
Gushing, (Mass.) 33
Id. 40.
v.
Ewing,
Claunch r. Allen, 12 Alabama,
163 Trull v. Eastman, supra ; New2
comb
v.
Presbrey, 8 Metcalf, 406,

J., in delivering the
where Wilde,
" It is not
opinion of the Court, said
stated in the report of the case, that
the deed to the demandant contained
any covenant of warranty, and it has

been argued by counsel on the assumption that it was a mere quitclaim deed but on looking into that
deed, we find that it contains an express covenant of warranty against
all persons claiming from or under
;
the said S. Presbrey. The words of

the habendum are, to have and to
'
hold the aforementioned premises to

the said Newcomb, his heirs, and assigns, forever, so that neither I, the
Simeon Presbrey, nor my heirs,

nor any other person or persons
claiming from or under me, shall or
said
by any way or means, have,

demand any right or title
to the aforesaid premises.'
That this
clause in the deed amounts to a covwill
claim or
enant of warranty, or of quiet enjoyment, against

title
all
persons claiming
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 purpose." So, where in Gibbs v. Thayer,
Gushing,
(Mass.)
32,
the
cove-
rights as to a recovery in damages.

contrary
has been, however,
in
in a case
Maine,
recently expressed
whose peculiar circumstances were such
that the enforce-
ment, under snrh a covenant, of the doctrine of estoppel, as

that doctrine is generally supposed to exist throughout the
New
States,
England
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
same doctrine has been since raoogniied and applied in

2
the same State.
The principle upon which these decisions
the
are supposed to rest will be considered in a subsequent

part
of this treatise. 8
The covenant of warranty,

die following form
"That he
as generally expressed,
is
in
and his heirs, all and singuand

tenements,
&c., hereby granted and
messuages
mentioned or intended so to be, with the appurtenances,
the said (grantor)
lar the
unto the said (grantee) his heirs ami assigns, against him
die said (grantor) and his heirs, and
against all and every
other person or
persons lawfully claiming or to claim the
same or any part thereof
shall
and
And
warrant and forever defend."

nant of non-claim was limited to the
grantor and his heirs, it was said:
"
This clause constitutes a covenant
of warranty, to the extent of its import It ditVers from a general warranty in this
that
against any and
all
one
is
titles,
the other against the grantor himself,

and all persons claiming under him,"
and
in tlu
throp
v.
ut
Sncll.
11
eases of Lo-
Cushing, 453,
and Por-
(where the text was cited,)
Sullivan, 7 Gray, (Mass.) 441,
the same view was taken.
Galvin.
2i> Maine,
187,
overruling Fairbanks p. Williams
and White r. Erskino. supra : and
see the dissenting opinion of Mr.
v.
Justice Wells in SO Maine, 539.

a
a war
paramount
Pike
by these presents
when the covenant is
will
Partridge v. Patten, 33 Maine,

In the case of Cole r. Lee, 80
Maine, 396-7, however, no di>tine483.
don was observed between the

of non-claim and of war-
enants
rantv.
'
/n/rn, Chapter
IX
rill
a limited
one,
KNANT
o\
<
k>
words
flic
under him, them or
hy. from or
after
inserted
any of them," arc
WAUHANTY.
<>K
words "or any
(lie
part
thereof.'
1
may
words,
lliese
that
infer
will
at
is
said hy Littleton, we
warrant and forever defend,
what
Kroni
once he perceived.
form
lo ancient
Tin resemblance of tins covenant

tw
1 '
were those generally inserted in a warranty ;' although it

"
added any addidoes not appear that the word " defend
^
il
seemeth that it hath not the ellect of
tional force, as
1
''
The
comprehended! the cause of \\arrantie.
ct
to
seems
have
warrant
and
forever
form, however,
defend,"
to have descended to the
use.
and
into
present lime.
general
got
w;irrantie, nor
Apart from the important word

u Also where,
,1
1<]<I<>
ft
words
iini
//./r/Vr.s-
In-
i-i-n
seeim-tli
word
ilia!
>l'
so thai
lie
j'<
ml-
warranty
Cor if
il
should
it
I,.-
the
into sonic lines levied in
it
should
or cause,
took the ellerl
of warranty, then
in
li
Kind's
which
seenielh thai this
word and verh inirrinili.-.ii) inakelh
it
an<l
\\arranly,
of
cause,
tin-
is
warranly, and no other word
in
our
"
l-'ov
" "
<
)f tln<,"
382 b),
says
"
Kraetoii
inanner:
fnnfiini
i-t
rd
lull
/n/i
Coke (Co.
writeth
,/ /in r,
/.'/,,/
rantitabimUt
,'t
<l
,/,
<i,
in
Inrrrdifnis
Imrihns
;/,(/'</,
Lilt.
<l
,i.<s/
i/>ii, ins
cos In/a/n, terrain
this
n'iir,,,--
/nint/ihus assirjntihirttni
IKI r,,!, I, ns. ,1
:.nl>iiinis)
<nl
ilia in
suis
/n<i/is
><,,<
ct
,1
/,-/,-n-
m/n
/,,
r-
m/u/ii
xuum
ilaif
/< i
COTUM kCKredes
<inl<
fiiintis)
sr
in
tl<fti,<l<
I',,-
dicil
t/tinit
sitxrijtil
//o.s-.sv.v.s-/V///r
et
</
irnrrtin-
surrct/anlcx in m/inilum.
<:/
autem
line
tf/iitr/'i/rs
(<t/
ct r/'/iiofos,
j>r(ifr.nte8
/>ru/>iii</ii.<>s,
Ct fltturos,
1,1
<
olilii/nl s,
<>(
et
tenc/in nlninin
<issi</natox
8U08
omnCH dUoS,
nn,l ,/ic/f
,1
irnrrnnli-
<>f>/ii/<i/i<mein
Immlis
rilii r,-l uliiul srrritiu/ii
i/innii
{hnutlionis cont.inc.tnr.
t/irif
i/iim/
n/i/
t/uis
/'<
.s,
mlim us)
n<\
<l<f<
ri/nt<//i
in
suos
rnrtd
in
Inn-
atl
ser-
antcm
n/ilii/n
,,<!,, ,<luiiL
/>nn//>
cnnlrn funinnn sun
/"
rci
si.
<ln-
<lnnl],,,
"
(conli
Il.-rehy
<ici/nir/<ir<luil
in
'
in
doth
trnrnntli <n
/in
neither
thai
appeal
(<l<
Im ntlrs snos
!'
QfC.
(urtjni,
<ir(jii/,/<iii</n/n si t/u/x ///us /ir/im't
"
'-'If-
ifirit
in<i) ulilitjut m- <l
limn
Per
<>inn< \ i/<ii/e.1, frc.
nnlini <jii</
line
the
contra
/incntiis
put
Court; and a man never saw that,

tlns word (<l< /','in/i //ins) was in
any
line, !nit oidy this word
irurninti..<i
hull us),
liy
warrant," the rovena.nl,
'
it
liath not, tin- ell'crl ol'
it
il
<l<
and
warranty, nor eoni|irrln-ndi-l

the cause
lo
is
it,
such deeds;
in
in
Latin,
inin-nn/i.n/ni/iiis
clli-cl Ihis
\vli;it
Ii;i.tli
in
t/(-/'<-ii<l<'int<s,
ini/irr/H'/uti/n
nuns)
contained
is
it.
divers deeds these
L -
ml,
.s
nit
Lalin, do
and
in\
CoU),
it
</,/',/,,/,,-<
nor
If
create a
\\arranlie,
Ki/o
only. A nd airnrrdn/i .ultimas,' &C.,
'
<
creale u warrantio, 80
belli shall warranl.'
Mn^lish doth create a warranlie
also."

as expressed above, would seem to be no more than an engagement that it should bar the covenantor and his heirs
from ever claiming the

undertake to defend
The
estate,
when
it
and that he and they should

assailed
title.
by paramount
was, indeed, one of the consequences of a warranty, and its effect in this respect has been continued,
though with modifications, down to the present time. Belatter
what
fore proceeding, then, to inquire into
will occasion
breach of this covenant by what is generally termed an

"
eviction," it seems proper to consider, in the first place,
and responsi-
the right of the covenantee to cast the labor

of the defence upon his covenantor.
bility
The
ancient practice of vouching to warranty has already

to.
Partly, perhaps, from analogy to that
been referred
practice,
States,
it is
well settled in most, if not
that, in general,
upon
paramount claim against one who
of the United
all
being brought upon a
suit
entitled to the benefit
is
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
claimant.
1
Stewart
West, 2 Harris, (Pa.)
v.
Swenk
Stout, 2 Yeates, (Pa.)
v.
470; Bender
las, (Pa.) 436
v.
;
Fromberger, 4 DalLeather v. Poulteny,
4 Binney, (Pa.) 356; Collingwood

v. Irwin, 3 Watts,
(Pa.) 310 Ives
v. Niles, 5 Id. 323
Paul v. Witman, 3
;
Watts
&
Serg. (Pa.) 409
Williams
UVathcrbee, 2 Aikens, (Verm.)

337; Park i. Bates, 12 Vermont,
v.
381;
Pitkiri v. Leavitt, 13 Id.
Brown
v.
son, 10
ner
338.
2
title
of the adverse
379;
Turner
Taylor, Id. 631
Goodrich, 26 Id. 708; Hamilton v.
u.
Cutts, 4 Mass.
353; Cooper
v.
Wat-
The
Wendell, (N. Y.) 205
Mi-
Clark, 15 Id. 427 Kelly v.

Dutch Church, 2 Hill, (N. Y.)
v.
105; Morris v. Rowan, 2 Harrison,

(N. J.) 307
Chapman v. Holmes, 5
Halsted, (N. J.) 20 Wilson v. MeEl;
Strobhart, (S. Car.) 65

Kerr, 5 Ohio, 15S Booker
wee,
v.
8 Bibb, (Ken.) 173

ton, Id.
282; Cox
Jones
Waggoner,
v.
(Ken.) 144
Hill,
(S.
Thompson,
Graham
v.
Strode,
u.
Davis
Car.)
Prewit
28
7 J. J.
v.
;
v.
i
King
Bell,
KrnId.
1;
Marshall,
Wilbmu-m-, 1
Middh-tim v.
Spi-ars, (S.
Tankrrly,
v.
ir>
Car.) 67
Alabama,
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,
the liability of the covenantor by the

1
his own.
decides
which
seeks to
fix
same
suit
Cases have, at times, been presented in which the coven an tee having, in the first instance, failed to acquire the
of the purchase, and having brought
possession of the subject
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 consuit
upon the
title
In a recent case in Tennessee, 2 the right

of the covenantee thus to bind his covenantor was denied.
upon him.
clusive
was
It
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

But in Vermont the law
in the action on the covenant.
has been differently decided, and

645; Fields v. Hunter, 8 Missouri,
128; Boyd v. Whitfield, 19 Arkansee Duffield v. Scott, 3
sas, 4G9
;
American Leading Cases, 343, note to United States

v. Howell.
A covenantor has, however, no right to insist upon being
Term, 374, and
placed upon the record as a defendant in the suit under the adverse ti-
Linderman v. Berg, 2 Jones,

(12 Penn. State R.) 301.
i Duffield v.
Scott, 3 Term, 376
tie
Smith
v.
Compton, 3 Barn.
&
407, and see supra, p. 99.
roy
v.
Adolph.
Poine-
Partington, 3 Term, 665, was

" a covenant war-
an action upon
it
has been held, with more

"
in a lease.
In a note
page 668, the reporter says, "a
preliminary objection was taken, viz.
that the defendants were estopped
ranting
title
to
from
insisting
on the
title
of
M.
G.,
because he had notice of the eject-
ment brought against the

and neglected to defend
plaintiff,
his title
but as the judgment of the Court

was founded on the principal question only, it is thought unnecessary
to enter into this and other minute
points which were stated in the course

of the argument."
2 Ferrell
(Tenn.) 44.
v.
Alder, 8 Humphreys,

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 effect of making the result of
1
upon the latter, and in recent cases in
2
Georgia and Texas, the same view has been taken.
The question now arises in the first place, what will con-
that suit conclusive
stitute
title.
a proper notice of the suit brought under the adverse

By the common law there was a regular writ, a sum"
if the sheriff
ad
moneas
warrantizandum,
returned that the vouchee

fault, then a
is
whereupon
summoned, and he make
magne cape ad valentiam
is
de-
awarded," &c.
3
;
4
but these writs have long become obsolete.
In Park
v.
Bates, 12
Vermont,
361, the question was passed over

without particular notice by the
Court; but it was settled in Pitkin
v.
Leavitt,
13
Vermont, 379, and
Brown
v. Taylor, Id. 637.

So, by
Louisiana Code, " When the
purchaser is himself obliged to com-
the
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
570
Graggv. Richardson, 25 Georgia,

White v. Williams, 13 Texas,
;
258.
" In the
ordinary case," said
the Court in
Gragg
v.
Richardson,
" the
purchaser after getting possession is turned out of it by a writ
against him, of which his warrantor
has notice in the present case, the
;
purchaser can never get possession,

not even by the aid of a writ of
\\hirh
his
warrantor has notice, and

of which he lakes
in tin- |>ri>MM-iititm
part.
The chance which
the war-
rantor in the one case has of asserttitle is as

good as the chance
which the warrantor in the other
ing his
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

it; a judgment against the
out of
purchaser when he brings the ejectment and vouches his warrantor is
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
as
present case."
3 Co. Litt. 101.
4
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, ami
then
am
which
impleaded in an action in
cannot vouch, as an assize or
scire facias,
it is
competent
for
me
to
229
" to have the

In Pennsylvania, it has been held that
effect of depriving the warrantor of the right to show title,
the notice should be unequivocal, certain and explicit; a
knowledge of the action, and a notice to attend the trial
it is attended with
express notice that he
" *
and the same view
be required to defend the title ;
2
seems to have been taken in a recent case in Arkansas.
"
the notices
From this, and the expression also used,
here were not produced," &c., it would hence not be unreasonable to infer that the notice to be thus given should
will not do, unless
will
be in writing, but this has been decided in a case in New

York 3 not to be necessary.
parol notice," it was
"
to
the
the
information
said,
grantor quite as well as
gives
a written one, and as there is no technical rule requiring
"A
such a notice to be in writing, no writing
From
is
is
necessary."
" This
however, Bronson, J., dissented, saying,

not like a notice which will sometimes affect the
this,
a party by showing
notice
and
tainted with fraud.
it
means only knowledge of a
in general
it
the information
is
was
But here
derived.
a matter of no
the notice,
to say,
right could only be asserted by
whom
have thus
recovered, to put in a plea for me,

and thus give him notice of the action that
pending, as otherwise I
shall not be allowed to have execution on
1
Paul
is
my judgment."
v.
Witman,
Watts
&
Serg.
Boyd
v.
Whitfield,
Arkansas,
20
was
it
called in question;"
is
"
as,
and
voucher by a writ of
in the one case, the
means of a writ served by
470, where the passage in the text
is
cited.
3
Miner v. Clark, 15 Wendell, 427,

notwithstanding it had been generally said in Gilbert
v.
The Turnpike
3 Johns. Cas. 108,

re Cooper, 15 Johns. 533, "
Company,
410.
2
what form
have any effect, is in

advises the warrantor that the
after referring to the old practice of
request him from
in
if it is to
a legal proceeding.
It
which he professed to grant
summons he proceeded
of
particular fact,
moment
received, or from what source
itself
title
title
In these cases
in legal proceedings
notice."
and In
notice
means a written
230
he ought not, in the other, to be prejudiced

definite and formal than a writing which
by anything
will advise him of what has been done, and what he is
a public
officer,
less
required to do."
The view
thus expressed,
is
not only clear-
former practice, but has the

ly supported by analogy
merit of being conducive to certainty in a proceeding whose
to the
conclusive upon a question of title ; and as it has

been recently decided in Vermont that in case of the death
effect is
of the covenantor no further notice need be given to his

1
ensue if a verbal
representatives, some hardship might
notice
were suffered
as such a message,
hind
it,
to
bind the former in the
resting in parol,
while, if written, something
first
instance,
leave no trace be-
may
might
still
be in exist-
warn or
notify them.
In considering, in the next place, the effect of a notice,
seems to be settled that when the plaintiff in the action
ence to
it
of covenant has produced evidence sufficient to satisfy the
Court that the notice was properly given
in all
respects, the
cannot be inquired into by the

validity of the adverse
defendant (except under the authority of a case to be pres2
to show that it may have been derived
ently referred to,
title

from the covenantee himself).
that the question of notice is, to some extent, a matter for
the jury.
Although it is the province of the Court to deIt
"
Brown y. Taylor,
13 Vermont, 631.
We are of opinion," said the Court,
u that the
plaintiff having commenced an action of ejectment against a
person
in
possession
of
the
lands
deeded and warranted to them by

McDaniel, and having given notice
thereof to McDaniel in his lifetime,
were not required to do anything
eventually to charge
him or his legal representatives with
the consequences of a failure to esfurther- in
tablish
01-1
title
Icr
in
them
to the lands
On
conveyed.
it
serving that notice,
became the duty of McDaniel
make proof of
and
this
to
his title in that action,
duty devolved upon
his legal
representatives without any further

notice from the plaintiffs." In this
case,
however, not only was the nobut the covenantor had
tice written,
appeared by counsel
2
Kelly
r.
in the cause.
The Dutch Church
Schenectady, 2 Hill, 105.

p. 234 and note,
Sec
of
infra,

termine what
and what
is
notice as to time,
seems
1
to
is
be within the province of the jury, except in the
judgment would not be conclusive upon the party bound by the

covenant, if the notice was not givthat the
en
The
in reasonable time.
ing remarks of Johnson,

v.
Wilbourne,
as to
proper and sufficient

fact of its reception
not a
and certainty, yet the
hardly necessary to observe,
It is
231
follow-
J., in
Davis
Hill, (S. Car.)
the local
on
rules
this
28,
sub-
veyed
to the latter with
covenant of
warranty, and the latter had been

dispossessed, under a judgment in
ejectment, obtained against him by
" The third
proposi-
one Robinson.
tion," said
Kennedy,
J.,
who
deliv-
ered the opinion of the Court, " offered to be proved was, that the title
ject in South Carolina, were approv-
of Irwin to the land under the deed
ingly quoted in Middleton
before the return of the process. In

cases within the general jurisdiction,
to him by the
was better than
that of Robinson's under which he was
evicted from the land.
The testimony was clearly admissible for the
plaintiff in error was no party on
notice at
the record to the
v.
Thomp-
" NoSpears, (S. Car.) 69.

in cases within the
summary
son,
tice
be given at or
jurisdiction, should
any time before the expira-
made
of conveyance,
plaintiff'
in
error,
judgment
in eject-
tion of the rule to plead.

The object is to enable the warrantor to
ment, under which Irwin was turned

out of possession of the land. The
He
judgment in ejectment was therefore

only primd facie evidence, as against
come
and defend
in
his title.
ought, therefore, to have reasonable

tini.' to
prepare for it, and the time
which the law allows to a defendant,
the plaintiff in error, of Robinson's

title to the land
being better than
furnishes
that of Irwin's
In the
perhaps the
safest
rule.
of cases, however,
the process might be served on the
last hour of the last day before the
first class
iv turn, so as to
the notice
render the service of
impracticable before the
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
this to be so, how

appear that he had such noCertainly not by any exhibi-
In these cases, notice within
title.
reasonable time afterwards, would

IK- all that could be
So,
expected.
does
tice ?
where the warrantee has entered an

appearance, and put in his plea to
ejectment, arid the judgment given
the merits, I should think that notice
in
it
even
the continuance, if the

warrantor hail time to prepare evi-
he
is
dence
sion of his, placed
return.
a
after
for
the
trial,
would be
suffi-
cient.
2
Such
Supposing
it
tion of the record of the action of
because, as already observed,

not a party on the record of it
neither does it appear by any admis;
of this
at least
was the determina-
tion in Collingwood
Irwin, 3 Watts,
(Pa.) 310, where the former had conv.
suit.
upon the record

Whether he had such
notice or not, was then a matter in

pais, and became a question of fact,
to
be decided by the jury, and not

single case
nant
ally,
land
is
where the party bound by the covenant
is
made
to, or has placed himself upon the record of the

suit.
Indeed, unless the party bound by the cove-
a party
adverse
so notified or vouched that he becomes, either actu-
or constructively, the party to the suit by which the

sought to be recovered from the covenantee, there is
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
Where
to be parties or privies to the action.
the covenan-
tor is properly notified, he becomes the latter, if not the

1
former.
Where he is not thus notified, the rule loses its
application.
But
mere
the
by the Court
fact of
but the Court, by re-
jecting the evidence on this ground,

must necessarily have decided on the
fact, that the plaintiff in
Under
such notice.
error had
point of
view, I apprehend the Court erred
for even in case evidence of a reguthis
from Irwin to Collingwood

of the action of ejectment being
lar notice
brought against him, with a request

to appear and defend against it, had
been given by Irwin, still as long as

such notice and request were not admitted by Collingwood, it was the
duty of the Court below to have admitted the evidence in regard to the
the land, and afterwards to
have directed the jury that if, from
title
to
the evidence, they believed that Collingwood was notified by Irwin or his
attorney, of the action of the ejectn in it IK 'inbrought, and was requested likewise t& appear and de-
fend against
it,
they were
notice of an adverse suit
making a
to consider
him bound and concluded by the

judgment rendered in it; and whether Irwin had a better title to the land
than Robinson or not, was a question
which they could not decide according to any opinion of their own, which
they might form by an examination
of their 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
Paul
it
was afterwards said in"

3 Watts & Serg.
Witman,
v.
410, that a notice ought to be, but

was in some degree calculated to
it was held that the quest ion
was fairly open to bo divided
mislead,
of
title
according
to
the
whole
evideuee
might have been given

by both parties.
Avliirh
trial
i
Paul
v.
(Pa.) 410.
Witman,
Watts
&
at the
Serg.
233
conclusive upon a covenantor in a subsequent action against

in
him, might,
dence of the
and
not,
many
title
most cases
in
work extreme
cases,
injustice.
Evi-
under which the recovery was had might

is
it
presumed would not appear
upon the record, and yet that title might be one derived
from the covenaritee himself subsequent to the purchase.
To
exclude evidence of
this,
be obviously improper. 1
Booker
175
384
Pitkin
v.
Bell, 3 Bibb, (Ken.)
v.
Leavitt, 13
Wilson
Thompson,
73, are of
Strob-
The
remarks of Wardlaw,
v.
Vermont,
McElwee,
v.
hart, (S. Car.) 66.
ton
notwithstanding a notice, would
The only
following
J., in
Middle-
Spears, (S. Car.)
general application, though
contained in
" In
many
a dissenting opinion.
where a record of
cases,
not proof of the truth of

the matters recorded, it is evidence
judgment
is
of its own existence, and of the legal consequences thence deducible.

Hence, in cases of indemnity, the
question which therefore
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, because of the much more frequent occasion for the practice in this country.
The principal cases I have consulted,
to
some of which
Bender
I will hereafter rev.
fer, are,
Johns. R. 517; Waldo v. Long,

Id. 1 74
Sanders v. Hamilton, 2
;
as evidence of his loss, both as to the
171
extent and as to his legal liability

but notice to the person bound to
Bond's Adms.
usually referred to as
strengthening the evidence as to competency as well as effect. See Duf-
and the MSS.
Scott,
Carrington,
field
v.
is
v.
Term, 374; Clark

Cranch, 322 Kip
;
Brigham, 7 Johns. 1 70. By analto such cases, and in imitation

of the voucher under the ancient
State,
201
Goodwyn
Whitmore
Davis
v.
v.
v.
v.
tree,
Columbia,
Book
5, p.
393.
who
is
bound
or personalty, and to
all
cases
20*
trials
N.
1 Hill,
v.
& M'C.
29
Round-
and expense of
of the same matter, as the
confusion and injustice which would
from conflicting verdicts on

same evidence, the recovery
against the vendee is admitted as
result
the
where
the advantage of the warrantor's intitle, and to save
in
of covenants to warrant either land
Casey, 2 Id. 424
formation about the
of
a covenant running with the land,

seems to have grown up, and to have
been gradually extended to all cases
own
May Term, 1832,

To give the vendee
as well the trouble
giving notice to one
in our
Wilbourne,
two
practice
and
Taylor, 2 Brev.
case of Allen
ogy
modern
Ward,
v.
warranty, the
Poulte-
Haywood, 236-282
indemnify,
v.
ney, 4 Binney, 352 Hamilton v. Cutts,

4 Mass. 352
Blasdale v. Babcock,
judgment showing a recovery against

the indemnified, has been admitted
Fromberger, 4
Dallas, 436, note; Leather
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-
On whom
burden of proof.
arises is as to the
thrown, when the record does not on
is this
to be
face set forth the
its
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
not derived from himself, the question

It will be remembered that in a
admits of easy solution.
declaration for a breach of the covenant for quiet enjoyment
title
not merely necessary to allege that the eviction was

made under paramount title, but that it was " existing before
it
is
and
time of the conveyance to the plaintiff," as the

eviction might indeed be under a paramount title, but one
at the
which had been derived from the
plaintiff himself, for
which,
1
of course, his covenantor would not be responsible.
The
same principle is applied to the doctrine of notice. Beyond
does not seem necessary for the plaintiff to go.

he has given a sufficient notice, it is believed to be
this point,
Where
enough
if
it
he show that the
title
under which the adverse
judgment was obtained was not one derived subsequent
to
2
the execution of the deed to himself.
veyed by him was tried more especially if the vendor assisted in the
;
The
defence.
failure
of the war-
rantor's efforts to defend the suit,
proof of the notice to the warrantor,

and proof that (as said in Davis v.
Wilbourne)
is
will
evidence of a breach of his undertaking to warrant and defend the

title conveyed by him, as perhaps is
Achis neglect of notice to defend.
title
cording to our
own
decisions,
by the
proper notice, the warrantor has

been made privy to the suit, arid is
concluded by a judgment for the
plaintiff, from disputing what such
his
was in
title
be conclusive that the
was better than the one which

was warranted."
1 See
supra, p. 182.
2
Phelps
(Verm.) 157
(Ken.)
375
v.
;
v.
Swenk
ground that
all
v.
Stout,
the facts averred
the declaration must, on
feiulunt
and
Dutch
judgment, with
Aikens,
Bell, 3 Bibb,
Yeates, 4 70, (though judgment was in

that case given for the plaintiff on the
ascertains, that the plaintitle better than the dethis
Sawyer,
Booker
judgment
till
hud a
;
issue,
plaintiff's
demunvr.
in
1
taken as true). Thus in Kelly r.Tlu-
Church of Schenectady,
-'
235
in this connection is
question to be considered
where
there has been no
a
of
as to the effect
judgment
The next
Hill, (N. Y.) 113, Bronson, J., held

" But it is
the following language
said that as the defendants had no:
tice,
and were requested
the ejectment
suits,
to
they are
defend
now
es-
topped from setting up their title,

and that question remains to be con-
Whether the defendants
sidered.
he was evicted by persons having a

title
paramount
Upon
ants.
The
been joined.
and
affirmative,
to that of the defend-
that averment issue has

plaintiff holds the
the
burden of proof
He
has not only failed

to prove the averment true, but in
attempting to do so, he has proved it
lies
upon him.
was not enough for the

show that he gave the
took part and aided the plaintiff in

the defence of the suits brought
false.
against him, does not appear, but

they must at least have furnished
defendants notice of the suits brought

against him, for the obvious reason
him with the means of setting up

their title, for it was given in evidence on the trial. And this case is,
that the claimants
I think, plainly distinguishable from

those to which we have been referred
necessary, therefore, for the plaintiff
in relation to the effect of notice, for
the reason that the defendant's
title
was not only in evidence in the former suits, but it was virtually admit-
It
plaintiff to
may have
recov-
ered on a right or title subordinate

It was
to that of the defendants.
to go further, and show on what
ground the claimants succeeded. He
did so and the evidence has proved
;
fatal to his cause."
Buckels
v.
The
Mouzon,
decision in
ted to be a good title. The plaintiffs

in those actions did not recover on
Strobhart,
(S. Car.) 448, proceeded in effect
upon the same grounds.
the ground that their right was superior to that of the Dutch Church, but
when judgment has been once
It has,
however, been decided that

recov-
on the ground that the defendant in

those suits was precluded by the acts
and declarations of his immediate
grantors from sheltering himself un-
ered against the covenantor, equity

will not enjoin that
judgment on the
ground of the eviction not having
der the good title of the church. If

the defendants, on receiving notice
ing a fact exclusively cognizable by

the common-law courts.
Yelton v.
of a suit upon a
perior to theirs, had neglected to ap-
Hawkins, 2 J. J. Marshall, (Ken.)

1.
There is indeed a suggestion,
pear and defend, and their title had

not been given in evidence, or if,
to wards the latter part of the decision,

that " the utmost
when
could have done was to have decreed

a new trial, on the establishment of
title
had been adthey would proba-
in evidence,
judged
defective,
apparently su-
it
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
been by
title
paramount, that be-
the
Chancellor
facts sufficient for that purpose,"
but
conceived, must not be understood as weakening the point cited
this, it is
in the text as actually decided, as the
Chancellor had enjoined the judgment, which decree the Court of Ap-
236
notice to the party bound by the covenant, of the suit

It seems to have
which that judgment is founded.
upon
been
thought, on the one hand, that on the presumption of omnia

record of the adverse suit is of itself prima
rite acta the
facie evidence that the
title
on which the judgment therein
a paramount one, it being, however, perfectly

based,
competent for the defendant to inquire into the merits of
is
is
But
the weight of authority inclines to the

position that although the record of the adverse proceeding
2
may be evidence of eviction, yet that is not even primd
that
judgment.
was under
facie evidence that such eviction

and the injunction
could scarcely have proceeded on the
ground alleged in the bill that the
peals reversed,
trial
came on unexpectedly
to
the
covenantor, his counsel having assured him that it could not be reach-
ed that day.
1
Collingwood
title
paramount,
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,
Woodruff, 15 Illinois,
15, unless indeed, the record of the
Sisk
128;
v.
v. Irwin, 3 Watts,
(Pa.) 310, supra, p. 231 ; Paul v. Witman, 3 Watts & Serg. (Pa.) 409. See
judgment would, according
passim City of Lowell
Parker, 10
be
itself
" If no such noMetcalf, (Mass.) 315.

said
Ch.
tice,"
Williams,
J., in Pitkin v.
" be
Leavitt, 13 Vermont, 384,
given
of the pendency of the action of eject-
in
most
to
have been thought in Kentucky,
in
Booker
v,
ment, the recovery may be evidence

of an eviction, but according to
the decision in Williams
v.
Weatherit must
bee, 2 Aikens, (Verm.) 329,
be accompanied with other evidence

that it was not on the strength of an
older and better
Possibly it
would have been better in that case to
title.
have considered the record as prima

facie evidence of
all
the material al-
son
the
deemed
sufficient evidence,
cases, of
an eviction, as seems
t. Bell,
3 Bibb, 1 75
Han-
Buckner, 4 Dana, 254 (Davis

v.
Logan, 5 B. Monroe, 341, was in
equity, and there was a general adv.
justment of title and damages) but

such a course of decision has been
frequently denied by cases which
;
hold that a judgment
unaccom-
itself,
panied by evidence of an actual or

constructive change of possession, is
no evidence of an eviction McDon;
nell
burden of proof
on the party who was bound to make
a good title, and who was supposed
to know what title he had wlu'ii In-
Paul
gave the deed."
ro,
legations, turning the
to
course of the decision in the State,
v.
v.
Hunter, Dudley, (Geo.) 4
Witman,
Watts &
S. i-.
410; Webbv. Alexander, 7 Wen. Icil,

286; Feriss v. Harshea, Mart. &
Yerg. (Tenn.) 55; Hoy v. Talintrr8 Smedes & Marsh. (Miss.) 741 ;
237
as against one who has been neither a party nor a privy to

1
the proceeding.
But however prudent

sued under an adverse
may
it
title,
be for a purchaser,
to give
bound by the covenant and require him

Dennis
v.
v.
Heath, 11
218
Id.
v. Kenton, Id. 282

Johnson, Id. 410 Cox
;
4 Id. 4
Hanson
v.
r.
Devour
Buckner, 4 Dana,
action against his grantee, and no opportunity of showing therein that he
transferred a good title, he cannot in

any sense be considered a party to
Howell, 2 Amer.Lead. Cases, 446);

Stevens v. Jack, 3 Yerger, (Tenn.)
v.
In Somerville
15.
Hamilton, 4
v.
left
undecided, the Court being divided

In Sisk v. Woodruff,
in opinion.
supra, the point was carefully con" On
sidered.
said
whom,"
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
the action, and therefore ought not to

be bound by any adjudication of the
question of title. But if he has notice, he may become a party to the
suit, and it is his own fault, if his
presented and inthen has an opportunity of sustaining the title he has

warranted, and defeating a recovery
title
is
riot
vestigated.
by the
fails
t6
fully
He
plaintiff in ejectment.
do this successfully, he
led to refund the
and thereby compel the warrantor to prove affirmatively that he
ment may
has not broken his covenant.
Other Courts require the
plaintiff to
prove by evidence delwrs the record,

that the judgment was founded upon
an adverse and superior
The weight of authority

try
seems to favor
We
regard
this
much
title.
in this coun-
conclusion.
If he
is
con-
cluded from afterwards asserting the

superiority of that title, and compel-
Some Courts hold

of ejectment ?
that the record furnishes prima facie
evidence of an eviction under valid
title,
it
evidence in support of his rights, beis concluded by the judgment.

If a warrantor has no notice of the
262; Graham v. Tankersley, 15 Alabama, 645, (see also King v. Norman,

4 Com. Bench, 883; note to U. States
Wheaton, 230, the question was
the party
fore he
Strode,
403; Fields v. Hunter, 8 Missouri,

128; Sisk v. Woodruff, 15 Illinois,
to
to defend the suit,
which he is not a party, actually or

constructively. He should be allowed
to appear in the case and adduce
Miller
Avery, 2 Barb. Ch. (N. Y.) 582.

i
Booker v. Bell, 3 Bibb, 175;
Prewit
r.
notice
when
with interest.
By
purchase-money,
giving the war-
rantor notice, the defendant in ejectrelieve 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 prepared to prove on the trial of the
action of covenant, that he was evicted by force of an adverse and superior title; in other words, he must
a familiar principle of law, that

a man shall not be bound by a judg-
show that the warrantor, by appearing and defending the action of ejectment, could not have prevented a
ment pronounced
recovery. This rule imposes no hard-
It
it -as
the best rule.
is
in a proceeding to
38
does not seem necessary to a support of the former's rights

on the covenant that such notice be given. 1
in the action
This was otherwise at the

ranty.
rantee
many
it
Although
was permitted
was only
common law
in case of
war-
in real actions that the
war-
to vouch his warrantor, yet there were

2
of these in which voucher was not admissible, and if
he were impleaded
in
any action
which voucher was ad-
in
then became his duty to vouch his grantor to

missible,
" and if he will not vouch
him, he shall not afterwarranty;
wards have a writ of warrantia char tee." 8 Although unit
der the more
modern covenant of warranty,
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
the grantor.
may be
It
from
obtained
the disponee,
the substitute for
when
the
eviction
is
threatened, ought to intimate his distress to the disponer, that he may defend 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,
by a failure of the demake proof of the title
he has omitted a relevant defence or
under which he entered, or upon a

conveyance from him, or under a tax
subjected himself to an incompetent

means of proof." Erskine's Insti-
by
collusion,
fendant to
title
originating in his
There
own
default.
no good reason for requiring a warrantor to show in the first

instance, that his covenant has not
is
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
Woodruff.
It
the
eviction
of
was incumbent on the
prove in addition, that the

eviction was under title paramount."
1
King v. Kerr, 5 Ohio, 158 Duf-
latter to
field v.
Scott, 3
Term, 376; Smith
3 Barn.
v.
&
Adolph. 408.
Compton,
" A
Sugden says positively,
is not bound to
notice
purchaser
give
of an adverse suit to the covenantor."
2 Sugden on Vendors, 540.
Sir E.
"
So, by the Scotch law,
Regularly,
tutes, Vol. 1, p. 132.

2
Supra, p. 205.
3 Fitz. Nat. Brev.
101 b
Ch. J.
vendor,
is not liable at
loses
134
Co. Litt.
8 Ed. IV. 11, per Markham,

So, by the Spanish law, a
" cited to
if not
all
warranty,"
all,
and the vendee
By the
" the
purchaser
recourse to him.
Code of Louisiana,
threatened with eviction, who wishes

to preserve his right of warranty
the
against the vendor, should notify
in time, of the interference
latter
which he has experienced.
This no-
given by calling
in the vendor to defend the. action
tification is usually
which has been instituted against ilu>

this
purchaser. In the absence of
been
not
has
if
it
or
notification,
made
in
due time, that
is,
in timr tor
239
voucher, notice, seems not necessary to be given, yet its advantage is, as has been seen, to enable the covenantee to re-
cover on less testimony, since he
show
it was
then not obliged to
is
title the recovery was had, except that

derived since the purchase from the covenantor.
under what
not a
title
In reviewing then what has been said on the subject

of notice to the covenantor of the adverse proceedings, the
points appear
following
authority
to
be settled by the weight of
The
must be distinct and unequivocal, and

the
party bound by the covenant to appear
expressly require
the
suit.
adverse
and defend
First.
notice
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
and binds the defendant in the action on the covenant.
upon
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
Fourthly.
on
its
face the title
the vendor to
warranty
is
lost
jury as to the reception of the notice.
If the record of the adverse suit does not exhibit
under which the recovery was had, the
defend himself, the

;
provided, however,
that the vendor shall
show that he
possessed proofs which would have

occasioned the rejection of the de-
mand, and which have not been employed, because he was not summoned in time." Art. 2493-4. By the
civil law the vendor is not liable for
his
vendee's costs in defending the
In
action, unless cited to warranty.
Morris v. Rowan, 2 Harrison, (N. J.)
" after
307, the Court,
looking at all
the authorities, did not find that the
question as to the costs had ever been

made to depend upon the fact of notice."
See Duffield
v.
Scott, 3
Term,
Compton, 3 Barn. &
Adolph. 408, and supra, pp. 99, 227.
There are several States in which
provision seems to be made by stat376;
ute,
Smith
v.
or perhaps
local
custom, for
vouching the covenantor. Where

such is the case, I am not aware
whether the old common-law rule is
or
is
not enforced in the event of his
not being thus vouched,
240
on the covenant must, notwithstanding

proper notice has been given, prove that such title did not
accrue subsequently to the deed to himself.
plaintiff
in the action
If no notice has been given, the record of such

adverse suit is not even primd facie evidence that the title
Fifthly.
was a paramount one, though
it
stances, be evidence of eviction,
may under some
circum-
and
not indispensable to the recovery on the

Sixthly.
covenant, that notice of the adverse suit shall have been in
It is
any way given.
Except where there
some
peculiar local construction of

the covenant of warranty, such as prevails in South Carolina,
and formerly did in Ohio, 1 it is laid down as a technical rule
is
which the question has been raised, that

" the covenants of
warranty and for quiet enjoyment are
broken only by an eviction." 2 But owing to an unwilling-
in every case in
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 encouragement to negligence, looseness of practice and perhaps fraud,
to which an enlarged interpretation is supposed to give rise,
1
See supra,
2 "
It is not surprising that in
p. 219.
The
great difficulty arising in

this as in many other cases/' said
Koerner,
J., in
3 Gilman,
(111.)
Beebe
179,
v.
Swartwout,
" consists in
this,
and I
that Courts have departed
think not improperly from the stern
technical rules of requiring actual
deciding
be considered, not as acts
of eviction, but as acts equivalent in
what
law
shall
to actual eviction,
and what
shall
not be so considered, some conflict of

views has occurred ; so much so, that
it
may
almost be said that
when no
ouster and eviction in cases both of
actual legal eviction has taken place,

no general rule applicable to all cases
breach of warranty and covenant for

quict enjoyment, and have held many
01
rather the concurrence of
can be laid down, and i-arh partii-ular case must be decided upon its own
merits." It is believed, howevri that
certain acts, as
at the present day, the cases admit of
being equivalent to
actual eviction by due process of law.
a tolerably harmonious
classification.

while the cases are thus unanimous as to the general prinhas not been unattended with diffiits
application
ciple,
culty.
The
two
cases
upon
this subject
principal heads,
actual
first,
perhaps be classed under
may
those where the dispossession is

is a virtual or construc-
and secondly, where there
tive eviction.
Under
the
First.
Cases where the actual dispossession
of these heads
first
may
be classed,
of law, consequent upon a judgment.

Second. Where the actual dispossession
is
is
by process
caused by the
common-law
right of entry ; and,

the possession is voluntarily, though actually abandoned or surrendered to the adverse title ; these
constituting the three subdivisions under the head of actexercise of the
Where
Third.
eviction.
ual
Under
ranked
the head of constructive eviction, the cases
in four classes
First.
Where
the covenantee has never
possession, having never been able to obtain

the adverse title.
Second.
Where,
may
be
had any
it,
actual
by reason of
after the establishment of the adverse
by a judgment, the covenantee accepts a lease or other

conveyance under it, and remains in possession.
title
Where he
Third.
does so even although no judgment has
established the adverse
Fourth.
Where
title
and,
the eviction
is
not of the land
itself,
but
of something which
represents the land, or of some incident
to its enjoyment.
i
For the
rules of the Civil
Law on
may
mette,
the subject of eviction, reference
isiana
be had
loss,
de Vente, n.
82, 86, 100, 102, 166 to 183
Troplong, Ch. VI. n. 415-463; Traite
to Pothier, Cont.
des Evictions
et
de la Garrantie For21
par M. Barihelot. By the LouCode,
suffered
tality of the
"The
eviction
is
by the buyer, of the
the
to-
thing sold, or of a part

thereof, occasioned by the right or
claim of a thivd person."
Art. 2476.

There can hardly be said to he a class of cases, now
rank as authority, which hold that an actual dis-
First.
entitled to
possession by process of law consequent upon a judgment is

1
In an
necessary to a breach of the covenant of warranty.
2
"
are all
early case in Massachusetts the Court said,
of opinion that to form an eviction, according to its strict
We
and technical meaning, a judgment of Court is necessary.

are inclined to give to the term a more extended
But we
signification,
and
to
understand
in this case as
it
synonymous
In the case of Lansing v. Van Alstyne,

3
in New York before 1829? it was condecided
however,
sidered that " the previous cases in that State, taken together,
with ouster."
show that to constitute an

must be a disturbance of the
by a stranger there
eviction
possession under a paramount

due
of
and although in the case
law,"
process
by
before the Court, the dispossession had been an actual one,
title
and made under a paramount and not a tortious

" for not
showing process of law
plea was held bad
title,
to
war-
rant the expulsion," and in a subsequent case in the same

4
But in the cases thus
State, a similar position was taken.
5
"
referred to, the term
lawful eviction," when used, was so
as
distinguished from tortious eviction, to which,
employed
as
we have
6
extend,
seen, the covenant for quiet enjoyment does not

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
cited
Funk
of
of the text was
and approved
v.
in the late case
Cresswell,
Clarke,
(Iowa,) 86.
2
Hamilton
in 1829.
Webb v. Alexander, 7 Wen(N. Y.) 285.

Greenby v. Wilcocks, 2 Jolm>.
See
dell,
5
(N. Y.) 1 Waldron v. McCarty, 3 Id.

473 Kortz p. Carpenter, 5 Id. 120
Vanderkarr v. Vanderkarr, 11 Id.
;
v.
Cutts, 4 Mass. 352,
per Parsons, Ch. J.

3 Cited in a note to 2
Wendell, 563.
The date of the case is not given, but
that in which
it is
cited
was decided
122;
and
Kerr
v.
238.
6
See supra,
p. 165.
Shaw, 13
Id.
243

the term
ought not
"
by
to*
" the covenantee

process," than that
if he means to
short of an actual ouster
legal
stop
he has no right to make any comrely upon his covenant,

It was
has been shown."
promise until an actual eviction
never intended by those cases to deny a remedy upon the
covenant where the purchaser was ousted by virtue of a com2
mon law
or a statutory right of entry under the better title ;

3
and in a more recent case in New York, as well as else-
where, the authority of Lansing v. Van Alstyne has been

4
in a case before
virtually denied, while in England, where,
the King's Bench, in 179^, a declaration on a covenant for
was demurred to because it did not show

"
under any legal process of law," the report says
an ouster
5
"
that
this was abandoned, the precedents being against it."
quiet enjoyment
Second. Indeed, to give such an interpretation to the term

1
Kerr y. Shaw, 13 Johns. 238.

Kerr r. Shaw seems to have
meant that, after judgment, the covenantee could not retire, but must
wait until actually turned out, which
in such case could only be by an execution but not to have gone to the
extent that in no case could there be
Law
Dunn, 2 Jones's Law R. (N. Car.)

204 Leary y. Durham, 4 Georgia, 593
an eviction unless by an execution.
cases cited in the argument

from Johnson's Reports, as a whole,
decide that there must be a disturb-
Greenvault
y.
645.
(N. Y.)
Davis,
"Upon
said Bronson, J., " I
Hill,
principle,"
can see no rea-
R. (N. Car.)
386;
Parker
v.
Booth
y.
fact, all
Day, (Conn.) 282. In

the cases cited under the enStarr, 5
suing heads virtually overrule such a

position.
sted,
" the
In Stewart
y.
Drake, 4 Hal-
(N. J.) 141, the Court said that
son for requiring an eviction by legal

Whenever the grantee is
process.
ance in, or deprivation or cessation

of the possession, by the prosecution
and operation of legal measures "
ousted of the possession by one having a lawful title to the property, par-
but the point decided in the case was

that where land, subject to a mort-
amount
gage, had been sold with a covenant

against incumbrances, the mortgage
foreclosed, and the property bought
to the
title
of the grantor,
the covenant of
warranty and for

quiet enjoyment are broken and the
grantee
4
may
Cobb
sue."
Wellborn, 2 Devereux,
(N. Car.) 390 Grist y. Hodges, 3 Id.
200
Hagler r. Simpson, Busbee's
y.
by the tenant of the vendee, these

circumstances amounted to a legal
eviction.
5
See
Foster
u.
infra, p.
Pierson, 4
269
et seq.
Term, 617.
244

would be
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
eviction,
title
to
which brings us
to the second class of cases
under
the head of actual dispossession.
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 ;
is
Entry
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
but
be defeated by the mere act or entry of the claimant. 1

Where such a right exists, 2 it would seem absurd to hold
that
its
exercise
of the better
was no
had not
title
merely because the holder

invoked the aid of a Court
eviction,
first
which the law allowed him
to do that
do without putting
to
more complicated machinery in operation. The

entry under these circumstances would clearly have all the
3
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
any of
its
4
between them.
l
3 Black.
Com.
175.
And
even
named, the right

of entry (which was never assignable
at law, Co. Litt. 314 a,) might be
in the three cases
tolled or taken
away by descent
cast.
This has been al385, 413.

tered by statute 3 and 4 Will. IV. c.
Litt.
27,
8 In
Massachusetts, as also in
jrivtm him,
in
Smith
v.
Maine
Island, a mortgagee has
by
statute,
a right of en-
c.
131.
Gore
Sprague
v.
v.
Brazier, 3 Mass. 540
Baker, 17
Id.
590
Smith
Shepard, 15 Pickering, (Mass.)

147 Rickert v. Snyder, 9 Wendell,
v.
The
authorities
doing of some
So
in
New
lu-ad
seemed
cases which
1844, p. 197.
under the
of actual dispossession appear to be

based upon the authority of some old
Shepard, 15 Pickering, 147;

;
St.
presence of two witnesses,
Mass. Rev. St. 1836, c. 107 Maine

Rev. St. 1840, c. 125; R. Island
Rev.
1842,
(N. Y.) 422.
39.
and Rhode
try,
Hampshire, after publication of the

notice of entry.
N. Hamp. Rev. St.
to require the
positive act, as in
Fraunces' case, 8 Rep. 91 Com. Rep.

228. It seems always necessary that if
;
the eviction be actual,
it
be complete

Thirdly. The cases which decide that the dispossession
may be voluntary on the part of the covenantee, who may
surrender or abandon
at first,
it
to the holder of
seem
to
the paramount
more properly classed
be
might,
under the head of constructive eviction, since
title,
it
may
be said
term eviction forbids the idea of voluntary disposIt is difficult, however, to determine
precisely in
every case how far a yielding up of possession to an irreis sometimes termed an ouster in
sistible title
(or as it
pais)
that the
session.
voluntary, or the result of necessity, and as some of the

cases in this class seem to insist upon the actual yielding up
is
of possession
for in
Hunt
where a
v.
the change of possession
Cope, Cowper, 242,
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-
So
ly a trespass, and no eviction."
in Reynolds v. Buckle, Hobart, 326 a,
" a
plea that the plaintiff did enter
they are dis-
ing, the party evicted
evict, to dispossess
sary to constitute a suspension of the

it is now well settled
rent, because
that if the tenant loses the benefit of
to be insufficient as a plea in bar.

As to what acts of annoyance will
landlord,
the
pended.
The term
amount
now
Y.) 581, overruled by the Court of

Errors in Dyott y. Pendleton, 8 Id.
727 and see Palmer v. Wetmore, 2
;
Sandf. S. C. R. (N. Y.) 316. In the

recent case of Upton
Townend, 1 7
Com. Bench, 64, Jarvis, Ch. J., said,
" It is
extremely diilicult at the pres.
ent day to define with technical accuracy what is an eviction. Latterly the
word has been used to denote that
which formerly
to express.
it
was not intended
In the language of plead21 *
be
by a judicial course,
the enjoyment of
an eviction, see the case

of Pendleton v. Dyott, 4 Cowen, (N.
said to
was formerly used to denote an expulsion by the assertion of a title

paramount, and by process of law.
But that sort of eviction is not neces-
upon him, but did not say that he did

expel him or hold him out," was said
to
was
expelled, amoved, and put out. The

word eviction
from evincere to
any portion of the
demised premises, by the act of the

rent
is
thereby sus" eviction "
is
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
not a mere trespass and nothing more, but something of a grave

and permanent character done by
this
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

tinguishable
from those where there
no such actual
is
change.
Hamilton v Cutts
is
on
generally cited as the leading case
side of the Atlantic as to voluntary dispossession,

" It was contended
or ouster in pais, where it was said
this
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
that here there
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
his
may
yield to a dispossession without losing
remedy on the covenant of warranty.
necessity for
him
himself against a
There
is
no
to involve himself in a lawsuit to defend

title
which he
is
must ultimately
satisfied
prevail."
" Tiie 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
and
to avoid the necessity of litigation,
plexities
and expenses.
that character,
intention."
1
&
He owed
and done with that
its
attendant per-
the plaintiff' no duty to
the expense of an action against the

grantor to recover the possession."
4 Mass. 350, per Parsons, Ch. J.
Again, in Radcliff
So
(Ken.) 292,
in Clark v.
llawle, (Pa.)
McAnulty, 3 Serg.
372, it was said by
" The law does not reGibson, J.,

idle
the
and expensive cerequire
mony
of being turned out by legal
process where that result would be

inevitable."
And
in
Greenvault
v.
Davis, 4 Hill, (N. Y.) 646, it was said,

"There is no reason why such sur-
it
v.
was
Ship, Hardin,
" Had the
said,
plaintiff refused to yield that just respect and due obedience to the Court
which every good and well-disposed

citizen ought to render, then it would
have been necessary, in order to
effectuate the justice of the case and
to complete the right of the plaint ill'
in ejectment, to have executed tin-
render without the trouble and ex-
writs of possession
perise of a lawsuit
should deprive
him of a remedy upon the covenant,
The grantor is not injured by such
can be no objection to his acquiescing

in and submitting to the judgment,
thereby rendering compulsion unno-
an amicable ouster
cessary,
it is
on the contrary,
a benefit to him, for
it
thus saves
but surely then-
and preventing
accumulation of costs."
tin-
further

in possession and sustain
.
the title was invalid.
24/7
the burden of the defence
remain
The right of the defendwhen

ant was at any period to give up the possession to the rightHe was under no obligation,
ful owner
upon claim made.
.
He was not
of duty or contract, to withhold it.
a
that
bound to seek redress through litigation
might turn
either
and
out to be fruitless with the party having the title,"
and
has
been
the law as thus stated
recognized
applied in
cases.
many
1
Drew
y.
evidently mistaken. In Hamilton v.

Cutts, 4 Mass. 349, Stone v. Hooker,
Towle, 10 Foster, (N. H.)
Woods, Ch.
537, per
J.
2 Woodward v.
Allen, 3 Dana,
Hanson v. Buckner's
(Ken.) 164
Exr. 4 Id. 254; Slater v. Rawson,
;
Metcalf, (Mass.) 455; Loomis

1 1 N. Hamp. 83 ; Sterling
Bedel,
v.
v.
Patton v.
Peet, 14 Connect. 254
McFarlane, 3 Penn. State R. 425;
;
Poyntell u. Spencer, 6 Barr, (Pa.)

254 Steiner v. Baughman, 2 Jones,
;
Stone v.
Hooker, 9 Cowen, (N. Y.) 157
Fowler v. Poling, 6 Barb. S. C. (N. Y.)
;
168
v. Cotheal, 1 Duer,
Haffey's Heirs v. Birch-
Blydenburgh
(N. Y.) 196
11 Leigh, (Va.) 88; McDowell

Hunter, 4 Dudley, (Ga.) 4 ; Leary
etts,
v.
v.
Durham, 4 Georgia, 606
Ferris
v.
Harshea, Mart. & Yerg. (Tenn.) 50,

commenting on RadclifFp. Ship,swpra,
"
p. 246.
was
it
ess,"
An
"
eviction
said in
by legal procFowler v. Poling,
not necessary, but the gransurrender possession to the

rightful owner, and that will be a suffiN///>M,
tee
is
may
cient ouster to entitle

tion
It
is
him
to his ac-
the covenant of
warranty.
true the Chancellor said in Hunt
in
Amidon, 4 Hill, 345, in the Court

of Errors, that the grantee had no
v.
right
to
give
up voluntarily
stranger claiming by
but
his
remark was
title
obiter
to
paramount,
and he was
Cowen, 154, and Greenvault v.

Davis, 4 Hill, 646, the opposite doctrine was clearly laid down, with this
restriction, that when the grantee

surrenders or suffers the possession
to pass from him without a legal con-
he takes upon himself the burden of showing that the person who
entered had a title paramount to that
test,
of his grantor."
Beebe
The
expressions in
Swartwout, 3 Gilman, (111.)

182, 183, which at first sight appear
to conflict with this train of authority,
v.
refer entirely to the

outstanding possession being one under a paramount
title,
mere adverse
narrow and techniSee infra, p. 259.
in distinction to a
possession in its
cal signification.
Although
in Mississippi there are
expressions in the cases of

Smedes &
Taliaferro, 8
741,
Hoy
v.
Marsh.
and Dennis v. Heath, 11 Id.

seem to advocate a more
rule, yet the cases were not acon the covenant of warranty,
218, which
rigid
tions
but the breach of the covenant was

attempted to be set up as a defence
the payment of the purchasemoney, (see infra, Chapter XIII.)
and the Court seemed unwilling to
to
try the question of title in that action.
In
Hoy
v.
Taliaferro
it
was
said,
248
But, in practice, the rule, as stated now generally to

The covenantee must,
exist, must be adopted with care.
of course,
first
examine whether the adverse

he will not
be
title
be tortious
so,
for,
any event have a
1
remedy against his covenantor.
Being then satisfied that
the claim is what is termed " by title," he must assume the
responsibility of determining upon the chances of its suc-
or not
cess,
if it
and
if
in
he choose to retire before
it, it
is
at his
own
and in the suit against his covenantor he must assume

the burden of proof and make out the adverse title to which
peril,
he has yielded.
But, by referring to what has already
been said on the question of notice, it will be seen that the
burden of proof is capable of being much modified, or entirely
removed, according to the circumstances of the case.

the adverse right of possession has been estab-
Where
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

any authority to show that a sale
either by a marshal or a sheriff, is
equivalent to an eviction. Manifestly
it is not so, since the original vendor
may still protect his vendee by pur"
chasing from the marshal's vendee.

Or it may happen that the title ac-
an acunder judgment of
sel of the plaintiff go, is that
eviction
tual
Court
ouster
is
not always necessary. An

sufficient, but then
may be
the burden of proof is upon the

party who has fielded the possession ;
Hamilton' v. Cutts, 4 Mass. 350 Stone
;
quired from the marshal would not
Hooker, 9 Cowen, (N. Y.) 157.

But these cases do not establish, that
an eviction.
there can be a breach of the cove-
be
sufficient to
effect
The voluntary abandonment
in this
instance gives no strength whatever

court of law, alto the defence.
though the proper tribunal for the

trial
such
of
titles
titles
to land, will not try
collaterally."
See these
v.
nant of warranty without an eviction,

an ouster, or a surrender, or holding
out under a paramount, outstanding
title."
1
See supra, p. 165.

Hamilton v. Cutts, 4 Mass. 350
more particularly noticed, infra,

In the more recent
Chapter XIII.
George v. Putney, 4 Gushing, (Mass.)

355 Stone v. Hooker, 9 Cowcn, (N.
case, however, of Witty
Y.)
cases
v.
Hightower,
12 Smedes & Marsh. 481, 482, Clay" The utmost limit
ton, J., remarked,
to which the cases cited by the coun-
157
Green vault
v.
Davis,
(N. Y.) 643; Witty v. Hi-htower, 12 Smedes & Marsh. (Miss.)

Hill,
481.

removed, and the judgment
1
the
title.
will be
much
compelled to
be conclusive evidence of
will
But where
paramount
ment, the burden of proof
249
there
is
no such judg-
upon the covenantee, who

out the adverse title with as
rests
make
were suing upon
if he
particularity as
it
in eject-
ment.
Moreover,
it is
believed that
it is
necessary that the par-
amount title shall have been hostilely asserted. For although

2
there is a class of cases to be presently considered, which
recognize the right of the purchaser to buy in the paramount title and in an action on the covenant recover the
amount thus
it will be found that

they refuse to
has
been
a prosecua
unless
there
sanction such
recovery
tion or distinct assertion of such title.
When such has
paid, yet
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
one case, it be considered as indispensable that there shall have been a preif,
in the
vious assertion of the paramount

it
would be equally indispensable
The
1
would seem
in the other.
Miner
v.
Clark, 15 Wendell, 427
Thompson, 1 Spears,
(S. Car.) 67; Wilson v. McElwee,
1 Strobhart,
See su(S. Car.) 65.
v.
pra, p. 239.
2
See
Thus
infra, p. 269 et seq.

in Sprague v. Baker, 1 7
DO, it was said: "If the plainhad voluntarily discharged the

mortgage without any previous demand made, his only remedy would
have been on the covenant against
incumbrances. But a demand having been made, the plaintiff might
have yielded to the dispossession,
that
result of the authorities would, therefore,
Middleton
tiff
title, it
seem
to be,
and such an ouster would have entihim to his remedy on the covenant of warranty, as was decided in
Hamilton v. Cutts." So in Dupuy v.
Roebuck, 7 Alabama, 488, it was said :
" It was
necessary that some particular act should be shown by which the
plaintiff was interrupted, otherwise
tied
the breach of covenant for quiet en-
joyment would not be well assigned,

If a demand was made, the plaintiff,
it was said,
might yield to the dis"
possession
while in Hagler
v.
son, 1 Busbee, (N. Car.) 386,
the "plaintiff gave
Simpwhere
up the possession
250
that
where the holder of the adverse
marily to obtain possession under
has the right sum-
title
and adversarily
it,
who
of the premises soon after their re-
possession to one
covery from him in ejectment, this

was held to be no eviction. " Non
constat that he would have been dis-
a paramount
him by
turbed in his possession had he remained upon the premises." In the
sons of justice
which are applicable to the
recent case of Moore
ception.
190,
nois,
stated
v.
Vail, 1 7
the opinion.
"
it
under
by litigation and
by the same reaand good government
force or
sustained
is
however,
This,
first
is
ex-
not to
be understood as holding that the

mere existence of a paramount title
older authorities
constitutes a breach of the covenant,
thus well
who
J.,
The
Illi-
claims
without resisting
delivered
the law was
by Eaton,
this
title,
asserts
undoubtedly hold, that there could

be no breach of a common warranty
of title, or warranty for quiet enjoyment, until the covenantee had been
actually evicted or turned out of the
The
or that
authorize the cov-
will
it
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
and
want of pos-
spirit of such a covpremises.

enant, and the manifest justice of the
paramount
title
session the
covenant
matter, soon began to prevail over
will
such an extremely literal interpretation of the intention of the parties.

And it was held that, where, at the
possession without demand or claim

by the one holding the real title.
it
him
justify
his
is
broken
nor
in abandoning the
time of the execution of the cove-
His possession under the title acquired with the covenant is not dis-
nantee, the premises were in the actual possession of another, who held
turbed by the mere existence of that

and he has no right to assume
title
them under a paramount or perfect
that
title,
then the covenant was broken as
for the party

it was made
should not be put to the useless ex-
soon as
pense, delay and trouble to bring

ejectment to get the possession, when
would certainly prove unavailing

nor ehould he be required to comit
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
well settled
by
considered as
authority,
and
sus-
tained by sound principles of moralIf the covenantee

ity and justice.
be in the actual possession of the

he has the right to yield that
estate,
it
feels
ever will be, until he actually

He
pressure upon him.
its
must act
in
good
covenantor, and
faith
make
towards his
the most of
he has acquired, until

the paramount title
ceases to be a duty to himself or his
covenantor. While he is not bound
to contest, where the contest would
whatever
resistance
title
to
be hopeless, or resist where resistance

would be a wrong, yet always where
he yields without a contest or resistance he must take upon himself the
burden of showing that the title was
paramount, and that he yielded the
possession to
title.
etly,
the
pressure
Whenever he does
he does so
of that
yield qui-
at his peril."

or prosecutes that right, the covenantee
actual exercise,
anticipate its
may
and voluntarily surrender the possession, by
which ouster in pais a sufficient eviction will be caused to

will
support an action on the covenant, in which, however, he
be obliged to prove that the results which he thus antici1
pated were inevitable.

The three foregoing classes of cases are comprehended
under the head of actual eviction.
Under
II.
the head of constructive eviction
we
will con-
sider,
Whether
First.
the
paramount
sion at
all,
in case the covenantee has,
title,
by reason of
never been able to obtain the posseswill be an
such inability to obtain possession
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,
was broken as soon
did not exist,
if it
as made,
and
was not reasonable to force the lessee to enter

and so commit a trespass " but," the Court
upon
" if it were an
added,
express covenant for quiet enjoying,
then perhaps it were otherwise."
also that
it
the land,
however, met by the case of Cloake

v. Hooper, where the lands,
having been previously conthe
to
whom
veyed by
King,
they rightfully belonged, a
This supposition
is,
demurrer by the defendant that the

1
The statement
v.
did not allege
in the text of the
and
As
Funk
Freeman's Rep. 122.
ivsult of the authorities -was cited
approved
plaintiff'
Cresswell, 5 Clarke, (Iowa,) 86.
Hobart's Rep. 12.

to this, see m/ra,
Chapter X.

an entry, and so could not be disturbed, was held bad the
Court saying, " The declaration is good enough for having
;
set forth
shall not
action
patentee of the King, the plaintiff
the
title in
be enforced to enter, and subject himself to an

So, in a more recent case in the
by a tortious act."
on a covenant for quiet

enjoyment in a lease for years determinable on lives, alleging that he was never in possession, that he had been
King's Bench, the
plaintiff declared
refused attornment by the tenant, and subsequently defeated

by him in an ejectment, on the ground of a prior lease
The
granted by the defendant.
latter
pleaded that for the
half year after the date of his lease the plaintiff might
have entered and enjoyed, but that for non-payment of the
first
rent for twenty-one days after that time, the defendant had
a right of re-entry which he exercised, and upon demurrer
the Court held that the defendant's covenant for quiet en-
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 accord1
ingly given for the plaintiff.
On this side of the Atlantic, however, there have been
at one time dicta,
and even decisions
in a case
rule.
Thus,
United States
in
in favor of a
narrower
Supreme Court of the

was said, that "the allegation
before the
1825?
it
that possession has never been obtained is immaterial, because not a breach of the covenant, and a majority of the
Court are disposed to think may be disregarded on a genl
Ludwell
458.
ton,
ment
v.
Newman, 6 Term,
Hawkes v. Or-
In the case of
5 Adolph.
&
367, judgwas rendered for the defendEllis,
ant by reason of there being no

evidence of the breach a> stated in
the declaration.
But the Court seem
to
have thought that a refusal

if
to give
averred,
properly
possession might,
be a breach of the covenant for quiet
enjoyment.
a
Day v. Chism, 10 Wheaton, 452,

per Marshall, Ch. J.

"
demurrer
eral
York
and such was the actual decision
in the case of
Kortz
v.
in
New
Carpenter, where the breach
of the covenant being that at the date of the deed to the

plaintiff and long before, the premises were adversely, by
lawful
and
title
right, held, possessed
proprietors of the
Hardenbergh
and enjoyed by the
was held bad,
patent, this
on general demurrer, as not showing an eviction.

So, in
2
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
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 requiet enjoyment
ferred to in the case of Holder
Taylor, has failed to receive judicial sanction in the other States of the Union, and
the reasons upon which these decisions are based have been
nowhere stated more

4
where Ruffin,
lina,
Court, said,
"
The
v.
forcibly than in a case in
North Caro-

existence of an incumbrance or the mere
J., in
under which the bargainee

has not been actually disturbed, are held, for technical reasons, not to be breaches of a covenant for quiet possession,
recovery in a possessory action
or in other words of our warranties.

different case
was
from
this, in
But
that
is
which the bargainee never
a very
in fact
possession, but was kept out by the possession of

another, under better title existing at the time of sale and
in
deed, and ever since.
of the same character.

present, for there
The case of Kortz v. Carpenter is

But it is distinguishable from the
had been no attempt
5 Johns. 120.
2 St.
John
v.
Palmer, 5 Hill, (N.
Y.) 601.
22
in that case to
get
Supra, p. 251.
Grist v. Hodges, 3
(N. Car.) 200.
Devereux,

1
I do not howHere there was by ejectment.

ever think that was necessary, but the existence of a better
possession.
with an actual possession under it in another, is of itself a breach of the covenant.

It is
manifestly just that it
should be so considered ; for otherwise the covenantee would
title,
have no redress but by making himself a trespasser by an

actual entry, which the law requires of nobody, or
by bringfor the event of that suit
ing an unnecessary suit
proves
in
the
action
on
the
covenant.
But
nothing
upon purely
For as between the bargainer and
legal grounds it is so.
;
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.
ute carries the possession.

There
lease and release.
passes the use, and the statis so in the

conveyance by
must be a possession for the latIt
It
But it is not an actual possession

on.
at
need
the
actual
not
be
The
statute
least,
entry
proved.
transfers the possession, and the lessor cannot say it was
not actual, for the purpose of defeating his subsequent reter to operate
As between
lease.
strict principles, in
the parties, then, the bargainee is, on

but if there be in reality an adverse
be in for an instant ; for

possession, he can only be held to
there will be no implication against the truth further than
If
is necessary to make the deed effectual for its purposes.
such adverse possession be upon title paramount, then there

is an eviction of the bargainee eo instanti that the possession conferred
by the
statute
takes place, or the eviction
The general principle thus ably

need not be by process."
other
explained has been recognized and applied in many
2
cases,
i
and an analogy may be found
The breach
assigned in the case
was an eviction by one Wingfield and

the evidence was that Wingfield was
in
the old
common
an ejectment against him and failed

therein by reason of Wingfield's par-
in actual possession of the property,
amount title.
2 Duval v.
Craig,
and that the covenautee had brought
Curtis
v.
2 Wheaton, 62;
Deering, 12 Maine, 501
255
law, which, although strictly requiring livery of seizin to

every feoffment, allowed the feoffee, where he
accompany
dare not enter through fear of his life or of bodily harm, to

make a yearly continual claim, as near the land as possi"a
ble, which would be
good entry in law."
The rule, therefore, as best supported by reason and au-
would seem
thority,
where, at the time of the
to be this
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, without any other act on the part of either the grantee or the
claimant
for the latter can
do no more towards the asser-
title, and, as to the former, the law will compel

no one to commit a trespass, in order to establish a lawful
tion of his
right in another action.
remains to inquire
It
to cases
where, as
how
far such a rule
often the case in
is
would apply
this country, the
without actual occupation or possession by any one.

respect to wild and uncultivated lands it has long
been settled on this side of the Atlantic, that the owner is
land
is
With
deemed
him to bring
a
on
the
wrong-doer,
trespass against
ground that the legal
seizin draws with it the possession, unless there is at the
to be
in possession so as to enable
time an actual adverse possession. 2

Phelps v. Sawyer, 1 Aikens, (Verm.)
158 Park y. Bates, 12 Vermont, 287
Vermont
University of
Id.
Loomis
52;
Joslyn, 21
Bedel, 11 N.
v.
v.
74 Miller v. Halsey, 2 Green,

(N. J.) 59
Randolph v. Meeks,
Mart. & Yerg. (Tcnn.) 58
Caldwell v. Kirkpatrick, 6 Alabama, 60
Hamp.
Banks
i\\s
v.
v.
Heath, 11 Smedes
(Miss.) 206
Id.
7 Id.
Whitehead,
473;
Littell,
Witty
Cummins
(Ken.)
23
v.
Den-
83
&
Marsh,
Hightower, 12
Kennedy, 3
Barnett v. Montv.
gomeiy,
When
6
such land
is,
Monroe, (Ken.) 628.
In
the recent case of

Illinois,
Moore
the Court said, "
v.
Vail, 17
We
admit
the principle of law claimed, that if

at the time this conveyance was executed, the premises were actually in
possession of a third party claiming
under
a paramount title, that of

amounted to an eviction eo
Rawle on Covenants for
instanti.
itself
Title."
l
See
this case infra, p. 25*9.
Co. Litt. 253, n.

Proprietors of Kennebeck
v.
Call,
56
through the medium of the statute of uses, conveyed with

a covenant of warranty, there is, in the absence of a better
a constructive possession given to the grantee, and this,
where the land is thus wholly unoccupied, seems to be con-
title,
sidered as equivalent to an actual entry and possession by the

Hence it was held in New York that when a mortlatter.
gagee of wholly unoccupied land foreclosed his mortgage

and obtained a decree that he should be let into the possesthis
sion,
covenant.
Mass. 484
was an
eviction amounting to a breach of the

2
" In the cases which have been
cited," said the
Van Brunt v. Schenck,

Trinity
possession is so construed to be coextensive with his deed or title, and
& Rawle, (Pa.) 514

Bradley, 4 Day, (Conn.) 306.
although the deed or title may turn

out to be defective or void, yet the
II Johns. 385;
Church, 3 Serg.
Bush
v.
When
Mather
v.
the cases say that this rule apwhen there is no adverse
true
owner
will
be deemed disseized
plies only
to the extent of the boundaries of
possession, this is principally intended

to preserve the effects of the statutes
such deed or
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 possession 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,
Clarke's Lessee y. Courtney, 5
" If a mere
Peters, 354
trespasser,
without any claim or pretence of tiJ., in
enters into land, and holds the

same adversely by the title of the
tle,
true owner, it is an ouster or disseizin of the latter.

But in such case
UK-
possession of
the trespasser is
bounded by his occupancy and consi
(jitciitly the true owner is not dis;
except as to the portion so ocBut where a person enters

cupied.
into land under a deed or title, his
!/.<<!
title.
This, however,
subject to some qualification.

if the true owner be at the
is
For
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 adverse party, to him who has the better 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.
i-St.
John
v.
Palmer, 5
v.
McCarty, 8 Johns.
Hill,
(N.
Y.) 599.
a
Waldron
257
" the covenantee either remained in

Court,
possession withor
else he never
suit
before
out any actual ouster
brought,
had any possession,
In the
either actual or constructive.
case before us, as the premises were wholly unoccupied, the

The plaintiffs had the conlegal seizin followed the title.
structive possession the moment they received the deed, and
could have maintained trespass against any one who should
enter on the land without
They were
title.
in such a con-
Now have
an ouster or disseizin might follow.
When the mortgagee acquired
the plaintiffs been evicted I
a paramount title under the mortgage, the legal seizin
dition that
the premises still being unoccupied

immediately passed
He then had the constructive
from the plaintiffs to him.
possession,
as well as
and could maintain trespass against the plaintiffs,

any one else who should enter on the land.
This would not be enough without showing that the mort-
The mere fact of

gagee had asserted his title to the land.
a superior title in a third person can never amount to a
breach of the covenant for quiet enjoyment.
The possession 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 process ; it is enough that he has yielded the possession to the
rightful owner, or that such
owner has entered
the
prem-
and taken possession. 1 The mortgabeing vacant

He filed a bill in chancery for
gee has asserted his right.
the purpose of perfecting his title under the mortgage, and
ises
made
suit.
the defendants as well as the plaintiffs,

parties to the
And he not only acquired a perfect paper title by the
foreclosure and the sale, but there
was a decree against
the parties to the present action that he should be

471
Kerr
Kortz
v.
Carpenter, 5 Id. 120;

Shaw, 13 Id. 236 Webb v.
Alexander,
v.
Wendell, 281.
22*
Citing
Hill,
Green vault
(N. Y.) 643.
v.
all
let into
Davis, 4

the possession of the property, and that
possession should
be delivered 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
of giving the mortgagee the
It
rights.
was necessary
for the purpose
complete enjoyment of his legal

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-
And thus the constructive posor

which
was in the plaintiffs, was, by
session,
legal seizin,
the acts of the parties and the
operation of law transferred to
ceived the Master's deed.
the mortgagee.
He has since exercised acts of ownership
over the property and no one has questioned his right to do
I think there has been such an eviction of the
so.
plaintiffs
as
amounts
to a breach of the covenant."
So in a recent case in Illinois it was said, " In this country where so much of the land which is the subject of sale
and transfer
is
actually wild and unoccupied, rules on the
of
eviction
as well as of possession must be detersubject
mined in reference to such a state of things. Although in
this case
it
does not appear that the covenantee was ever

he certainly
in the actual possession of the

premises, yet
l
"
Although this is," the Court

went on to say, " in several particulars like the case of Waldron v. MeCarty, 3 Johns. 471, there
is
still
between the two

There the averment was that
the plaintiff was obliged to purchase
the premises under the decree of
distinction
plain
cases.
'
in order to prevent his

being deprived and ousted of the
foreclosure
'
and on demurrer it was held

did not amount to a breach
of the covenant. But the plaintiff
was in actual possession of the land,
and the possession never had been
same
tliat this
changed.
In Kerru. Shaw, 13 Johns,
236, a person having the
paramount
had recovered ejectment against
the covenantee but as no execution
had been issued on the judgment and
the possession had not been changed,
it was held that there was no eviction.
There again, the covenantee
was in the actual possession of the
land and continued to hold it when
the action was brought on the covenant.
But here, as there was no actitle
tual possession in the plaintiffs or
any
no execution or other formal proceeding was necessary for tlio
one
else,
purpose of giving
decree."
full
effect
to tin-
59
once held the legal title ; and the lands being then actually
vacant, such legal title drew after it the constructive possession.
Before dismissing the class of cases upon the subject of an
by the grantee's inability to obtain the

should be observed that such possession must be
eviction being caused
possession,
i
Moore
v.
it
Vail, 17
Illinois,
185.
question arose with

of limitations.
statute
to
the
respect
In an action on the covenant of war-
In
this case the
ranty
it
was proved that at the time
of the sale to the plaintiff the premises were in the actual possession of
one Lynch, who however did not claim

to be in possession under color of title,
and who soon

in
which
after left
state they
them vacant,
continued for sev-
when Mrs. Lynch who
an adverse paramount title ? The

is that he held in subordination to the title which he had
conveyed to Collins, and there can
presumption
be no doubt that he might have been

dispossessed, under the deed of conveyance on which this suit is brought
action of ejectment.
The continued possession of Lynch not being
under paramount title nor even ad-
by an
verse to the plaintiff's
title
did not
constitute
an eviction so as
statute of limitations.
ued
it
has failed, and that

there has been in contemplation of
with by the owner of the paramount

title.
Until that time he might peace-
law an eviction so as to give the right

of action on the covenants but it is
ably have entered upon and enjoyed

the premises without resistance or
eral years,
then held the paramount title took

" The defence now inpossession.
sisted
"
upon," said the Court, is the
It is not de-
nied that the
title
insisted that the title failed
and that
to give
the plaintiff a cause of action on his
covenant of warranty.
The plaintiff's constructive
possession contin-
until
was actually interfered
molestation which was
all his
grant-
a technical eviction accrued on the
ors covenanted he should do.
day of September, 1836, the

moment the deed was executed which
was more than sixteen years before
We admit
tliis action was brought.
did not guarantee to him a perfect

title, but the possession and enjoyment of the premises. There was no
the principle of law as claimed, that

this conveyance was
if, at the time
entered and took possession of the

property in 1842. This entry being
executed, the premises were actually

in the possession of a third party
ble
first
claiming under a paramount title,

that of itself amounted to a conviction, eo
instanti.
nants for Title.
Rawle on Cove-
From
the facts
al-
appear that on
the first of September, 1836, Lynch
held possession of the premises under
ready
stated, does
it
interference with this
till
They
Mrs. Lynch
by paramount title, although peaceaand without opposition from the

covenantee, was at least a constructive ouster and a breach of the coveThen for the first time an acnant.
tion accrued upon this covenant, and
not
till
then did the statute of limi-
tations begin to run."
260
and not an adverse possession such as would ripen by lapse of time under the limitaunder a
title
actually paramount,
tion acts, into a perfect
Such a possession might,
title.
according to some authorities, cause a breach of the cov1

enant for seizin, but there appear to be none which decide
that
it
would cause a breach of the covenant of warranty or
On
the contrary, in an early case in

Vermont, and very recently in Illinois, it has been held that
3
such a possession was no breach of these covenants.
for quiet enjoyment.
2
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
Secondly.
first
of
them involves
the question whether, after the estab-
lishment of the adverse

eviction will be caused
title
by a judgment or decree, an
by the coven antee 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 one to
the relations between the covenantor and
which passed from

the other, are dissolved, and hence after such an
the covenantee,
growing out of the
eviction (whether caused
voluntary retirement
is
title
by legal process, by entry or by a

immaterial, as the reason
applies
the law to prevent the
relation between the dispossessed cov-
equally to all), there is nothing in
formation of a
1
Supra,
p.
Phelps
v.
20
new
et seq.
Sawyer, 1 Aikens, 157.

Swartwout, 3 Oilman,
Beebe v.
where the subject was elaborately examined both by counsel and
the Court Moore v. Vail, 1 7 Illinois,
183,
185,su;?ra,p. 259. In Jenkins v. Hopkins, 8 Pickering, 350, the law was

incidentally considered as so settled
" The
depositions show an actual
:
possession and occupation, and payment of taxes by several persons, but
there
is
title.
no
.
legal evidence of their
The
fact of possession,
by the
disconnected from
as proved
therefore
witnesses, stands
any
title,
we cannot know
and
that
it
was not unlawful, and if it was so,

it is no breach of 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 eviction of the covenantee he had taken a conveyance under the
of which he had regained the posses'by virtue

This would
sion, would clearly be held bad on demurrer.
and new contract, growing out of a
have been a
better
title
subsequent
different set of relations,
which could not
affect
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 relaand the formation of the new ones, and if the cov-
tions
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 necessubstantial rights
sary for the purpose of giving a party
1
As for the allegation that a door
under his covenant.
might be opened
to
fraud,
it
may be answered
that the
for the
question of fraud or collusion will always be open
benefit of the covenantor, and he may have greater difficulty
in establishing it in proportion as the transaction is cloaked
with technical formalities.
On
has been urged that, in the first

a doctrine tends to sweep away all distinction
place, such
between a covenant for seizin and a covenant of warranty.
By
tial
the other hand,
it
degrees, an eviction, which has always been held essento a breach of the latter, is frittered away to a mere
name.
ment
holds out at least an encourageto fraud, and the temptation to it will increase in pro-
In the next place
it
It has
are relaxed.
portion as the requirements of the law
also been argued that the case is analogous to that between
landlord and tenant, with reference to the rule that a tenant
See Poyntell
v.
Spencer, 6 Barr, (Pa.) 257.

prohibited from disputing his landlord's title unless there
has been an actual eviction under a paramount claim.
is
indeed, there be such an analogy as is lastly suggested,

might perhaps be difficult to deny the superior weight of
the argument of the latter side of the question.
The point,
If,
it
assumes an importance which may

gression which would not otherwise be made.
justify a di-
therefore,
Some
difference of opinion appears to exist with respect

to the source of this rule, and it seems to have been often,
not generally, supposed to have been feudal in its origin,

It
forming part of the doctrine of disclaimer.
appears,
if
however, that none of the older cases mention the rule.

" Tenant for
term
Littleton, in commencing the subject of
"
of
And where the lessee entereth
force
by
years," says,
of the lease, then he

lessor reserve to
is
him
tenant for term of years, and if the

a yearly rent upon such a lease, he
may
choose for to distrain for the rent.
case
it
ments
behooveth that the lessor be seized
in
But in such
the same tene-
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 inat the time of his lease
for
it is
dented, in which case such plea lieth not for the lessee to
And Coke,
plead."
"
The reason
of this
in
referring to this section says,

that in every contract there
for
is,
must be quid pro quo, for contractus est quasi actus contra
actum, and therefore if the lessor hath nothing in the land,
the lessee hath not quid pro quo, nor anything for which he
should pay any rent."
the lease were
1
58.
Littleton,
by indenture,
And
Abridgment, Estoppel,
said " Nota, in
*
title,
Tenant
by deed
Hence
in Brooke's
pi.
Littleton's
for Years,'
if
poll for years or
8,
it
is
Tenures,
one lease
by
parol,
he can avoid the lease by saying that
(in
it
appears that unless where
which case the doctrine of
the lessor had nothing in the land at

time of the demise contrary, if the
;
lease be
by indenture,
estoppel, which note."

2
Co
LHt. 47 b.
for that
is
an

estoppel by deed applied,)
part of the common law.
we come
263
the rule in question formed no

find then no trace of it until
We
to the later reports.
" It has been ruled

often,"
181 2 " that neither the ten-
5,
Dampier, J., in the year
nor
one
ant,
claiming by him, can dispute the landlord's
any
This I believe to have been the rule for the last
title.
said
twenty-five years, and I remember was so laid down by

It was referred to
Buller, J., upon the Western circuit."
by Lord Kenyon,
tion with a different principle
"
remarked,
3
179^, but in connecand Tilghman, Ch. J., has
in a case decided in
The
principle
the strict rule of law." 5
4
;
was
certainly a departure
This rule, then, having- no foundation

"
it has been well
suggested that
in the old
its
law,
origin
from
common
must be
where a party has kept

sought
or obtained the possession of land which he otherwise would
not have had. by means of an agreement or understanding,
in the general
principle that
he shall be estopped from setting forth anything in opposition to its terms or intent in a suit
brought in order to
The principle was, of necessity,

of the action of ejectment
that
feature
by
an
absolute
requires
possessory title in the plaintiff,
recover such possession.

called into being
which
and makes,
in
its
absence, the
mere
cisive in favor of the defendant."
fact of possession deIt
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
Jordan v. Twolls, Rep. temp,

Hardwicke, 161; Palmer v. Ekins,
2
Raymond,
2
Doe
v.
1551.
&
Selw.
Cooke
latter, since, if
Cobb
v.
Arnold, 8 Metcalf,
(Mass.) 398.
5 Hamilton's Lessee
v. Marsden, 6
See also Vernam v.
Loxley, 5 Term, 5.
4 It
being held there, as elsewhere,
that in an action of assumpsit for use
Binney, 47.
and occupation, the
Leading Cases, 4th Amer.
v.
issue sought to
such
be raised by the question of title was

immaterial; Lewis v. Willis, 1 Wilson, 314
Smythe, 4 Maule
347.
3
of the
Smith,
6
Note
Smith, (N. Y.) 329.

Doe v. Oliver, 2 Smith's
to
ed.

were the
rule, all the covenants for title"would
useless, as the essence of a breach
the existence of a
title
be at once
of these covenants
is
or a possession paramount to that of
the grantor.
It will further clearly appear from examining the statute
11 Geo. II. c. 19, that it was deemed no more than just
cases of conflicting titles, a tenant should be protected against his landlord by payments to the holder of the
that, in
paramount title where such title appears by matter of recand even in one case where it did not so appear. The
ord,
llth section of that statute, after reciting that the possession of estates was rendered very precarious by reason of
the fraudulent practices of tenants in attorning to strangers
who
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
such attornments should be void to all intents and

"
Nothing herein
purposes, with, however, this proviso
contained shall extend to vacate or affect any attornment
that
all
made pursuant
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
to
and
in
or lessors, or to any mortgagee after the mortgage is become forfeited." The fairness of this proviso is sufficiently
manifest, and the rule it contains has been observed both
where such a
authority, and
1
And even
it
and where
not of binding
has been repeatedly held that a payment of
statute
is,
in cases arising un-
der the relation
of landlord
and
it
Scott, 767;
Mees.
&
is
Doe
v.
Rose. 728
Seaton, 2 Crompt.
;
Jackson
v.
Row-
tenant, many limits have been set

to the estoppel of the latter.
One
of the most familiar of these is, that
land, 6 Wendell, (N. Y.) 666 ; Randolph v. Carlton, 8 Alabama, 606 ;
show that his lesWalton v.

sor's title is expired
Waterhouse, 2 Wms. Saund. 418,
kie, (N. J.) 265.
he
permitted to
ia
note
Hopcroft
v.
Keys, 2 Moore
&
Doe
d.
Howell
a Lunsford
v.
i>.
Ashmore,
Turner,
Marshall, (Ken.) 104.
2 Zabris-
J. J.

rent by the tenant to a mortgagee claiming under a mortgage prior to the lease, and who has, at that time, a right
of entry, is a sufficient defence in an action brought to
1
recover this rent by the landlord.

It must be observed, with respect to these cases, that in
seem
reality they
tive eviction.
to
Jones
Magill
v.
Smith
v.
v. Clark, 20 Johns. 61
Hinsdale, 6 Connect. 469
Shepard, 15 Pickering,
(Mass.) 147
Id.
proceed upon the ground of construcThere is an entire cessation of tenure be-
476
Stone
Weld
(Mass.) 494
Gushing,
Munson,
v.
Patterson, 19
v.
Adams,
Metcalf,
355
Greeno
Vermont, 37 Simers
(Mass.)
9
Putney, 4
v.
George
&
and
it is
paid accordingly, as here,
the relation of landlord and tenant
may
arise
between the
at all events, the
parties.
mortgagee
Or,
may be
entitled to sue the tenant for use
occupation.
Therefore, under the
circumstances of this case, it is plain
Biggs, 9 Barn.
re-
paid to him,
v.
Saltus, 3 Denio, (N. Y.) 216 Chamv. Pleak, 6 Dana,

(Ken.) 428 ;
v.
>e
v.
bers
Pope
and the mortgagee afterwards

quires the rent to
Cress. 245.
and
that the mortgagee was entitled to

the profits of the land, and the de-
See Mayor of Poole v. Whitt, 15

& Welsby, 577 Waddilove v.
Barnett, 2 Bingham's N. C. 538
Franklin y. Carter, 1 Com. Bench,
760 Graham v. Alsopp, 3 Exchequer,
fendants were right in

paying him
198
note to Moss v. Gallimore, 2
Smith's Lead. Cases, 604, (5th Am.
In Doe v. Barton,
ed.) passim, 697.
11 Adolph. & Ellis, 314, Denman, Ch.
" The tenant
be said to
to
Mees.
J., said,
may
satisfy the rule when he admits that

at the time when he was let into possession, 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.
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
;
go through the form of an ejectment, in order to put them into the

very position in which they now
stand."
2 In Ross v.
Dysart,
Penn. State R.) 454,
"Nor
9 Casey,
(33
it was said:
necessary for the tenant

the
premises to give him a good defence
Writs of habere facias
against rent.
to
is it
be actually removed from
possessionem are well executed when

the tenant attorns to the plaintiff
And the taking of a lease

or contract of purchase under pressure of such writ where there is no
therein.
is an actual evicwhich dissolves the re-
fraud or collusion,
tion in law,
is conceded on
all hands that
where a lease is made by a mort-
original
gagor subsequently to the mortgage,
worth's Pleading, 63, will be found
It
23
lation
between the tenant and his

landlord."
In 5 Went-
266
tween the tenant and the original landlord, 1 and there is a

creation of an entirely new tenure between the former and
the
The mortgagee does not
mortgagee.
into
step
the
shoes of the landlord, and under no circumstances can there
When, therefore, it was

"the
Biggs,
mortgagee, by giving notice
of the mortgage, may thereby make him
be a continuation of his rights.

said, in
to
the
Pope
tenant,
his tenant,
was
which
v.
and
himself to receive the rents
entitle
jiot
necessary
the
to
"
this,
of the
decision
case,
was properly denied in subsequent cases. 3 It is evident,

that the mortgagee has no legal power to compel the tenant
remain
in possession.
Clearly, if the tenant, upon reretire
from
the premises, no action could
the
notice,
ceiving
be maintained against him by the mortgagee, for the rent
to
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 possession, be liable for the rent until the expiration of his
All the
term.
effect,
then, of a notice,
as has been said,
and a continuing
to raise a
possession is,
the tenant consented to hold under his
the old terms, and this
is
signed
is
for letting
new
viewed in law as
a declaration on a covenant for quiet

enjoyment in which the breach as-
ground-rent go
"
if
landlord upon
there had been
and indemnify the

Yet the
less
said plaintiff
for the same.
said plaintiff
in fact says that the said defendant,
by means of which he,

the said plaintiff, was called upon
and forced and obliged to pay, and
did then and there pay the same, in
order to prevent his goods and chat-
not regarding, &c., did not,
then being on the said premises

from being distrained upon for the
Dana, (Ken.) 203.
in arrear,
tels
same, to wit one A. B. to whom the

then and there of right was
:
due and payable, whereof the said

defendant afterwards then and there
hail notice, and was then and there
required to save, defend, keep harm-
in
presumption that
was so requested
when he
as aforesaid, save,
defend, &c."
1
320
2 9 Barn.
Brown
Beebe, 2 English,
Gore
&
ley, J.
3 Evans v.
342
v.
Fitzgerald
(Ark.)
Cress. 245, per
Elliott,
v.
Rep. 9; S. C.
* In Brown
Stevens,
v.
1
v.
Man.
Ad.
Storey,
&
&
Scott's
Jay-
Ell.
N.
Gran. 117.
Storey, sv/>ni.
267
an actual eviction by the mortgagee, and a repossession

This is stated in plain terms
given by him to the tenant.
3
"If
a party, having a good
Pollock
Baron
Chief
by
of demised premises, goes there
right to eject the occupier
:
and demands
'
and the tenant says, I

now hold, and will con-
to exercise that right,
change the title under which I

sent to hold under you,' that, according to good sense,
an expulsion."
capable of being well pleaded as
will
is
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
him with an ejectment and hold him
threaten
liable
for
mesue
unless he consent to pay the rent to him,

profits
on
the
other, such payment would be no defence as
while,
against his original landlord when sued by him for the rent.
mortgagee cannot
It is true that the
distrain for the rent,
nor bring an action to recover it, there being no privity

4
between the tenant and himself, but he may obtain the
same
results indirectly
mesne
action for
From
1
&
profits.
these remarks
Mayor
Mees.
by a threat of ejectment and an
of Poole
v.
it
will be perceived
Whitt, 15
Welsby, 577.
2 See accord.
Clapp v. Coble, 1
Dev. & Battle, Ch. (N. Car.) 177;
Morse
v.
(Mass.)
454.
Metcalf,
Putney, 4
Ross v. Dy-
v.
George
Cushing, (Mass.) 354

sart,
13
Goddard,
177;
Casey, (33 Penn. State R.)

To render the eviction a valid
defence against the landlord's claim

for rent, it must take place before
the rent
falls
due
Giles
u.
Com-
stock, 4 Comstock, (N. Y.) 275.

3
McKircher
son, 289;
Mayo
v.
Hawley, 16 John-
v.
Shattuck, 14 Pick-
ering, (Mass.) 525.
that the rule
4 It seems to have been on this

ground that in Souders v. Vansickel,
3 Halsted, (N. J.) 313,
the tenant
was denied the defence of having

made payments to the mortgagee.
Evidence in support of this, though
inadmissible under a plea of nil
seems, however, proper as
being equivalent to a constructive
The student may profiteviction.
habuit,
ably refer, for a more ample consideration of the subject here casually
Mr. Hare's note to Moss

and the Duchess of
Kingston's case, in 2 Smith's Lead.
noticed, to
v.
Gallimore,
Cas. (5th
Am.
ed.)
268
has by no means the universal application which has been

" As it is a rational
it.
It has been said,
rule,
attributed to
it
will not
be extended beyond the principle on which
Whenever
extensive.
it
is
ascertained,
or decree, that the landlord's
judgment
may
renounced, and the
under the paramount
title."
tenant
may
co-
by a competent
title
is insufficient
between them
for the security of the tenant, the relation
be
is
it
Allegiance and protection are correlative and
founded.
protect himself
the application of these remarks to the subject of

as connected with the covenants of warranty and
In
eviction
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

For the
of the grantor and to leave no reversion in him.
relation of landlord and tenant imposes upon both parties
greater rights and obligations than that of vendor and pur2

There seems no obligation of allegiance and loychaser.
on
the
part of the latter towards the title he has
alty
The mischief
received.
to which, as
tenant, the absence of such a rule
between landlord and
must
lead,
would
evi-
obtained the possession from

dently be that a tenant having
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-
Hence
tion.
the tenant's obligation to restore to
v. Turner, 5 J. J. Mar(Ken.) 104.

2
Blight's Lessee v. Rochester, 7
Lunsford
shall,
Whcaton, 548; Walden v. Bodley,

Peters, 156; Watkins v. Hoiman, 16 Id. 54 Page v. Hill, 11 Mis3
Hill,
Ostcrhout
r.
(N. Y.) 518;
Patterson's Lessee,
Slinrmakrr,
Kenada
in
M!;
Gardner, 3 Barb. S. C. (N. Y.) 589 ;

v. Wilson, 4 Id. 180
Bigelow v. Finch, 1 1 Id. 500 James v.
Averill
1 Swan, (Tenn.)
311; Winterbottom v. Jngham, r
Queen's Bench, 611.
3
Or, as has born well rxpivssi-d
14
-oiiri,
the
as between vendor and purchaser, there
But
possession.
him
v.
Mr. Hare's note
to the Du.-lu-s
..I
Till:
COVENANT OF WARRANTY.
269
With the execution of the concan be no such danger.

ê
a ^ tne relations between the
ru
a
as
general
veyance,
5
except those arising from the purchaser's

parties
with
respect to the unpaid purchase-money and
obligations
covenants which he has received.
the
his rights upon
By
cease,
the contract as intended to be fulfilled, the
title arid
posses-
There
sion have left the vendor, never to return to him.

far less
room
appears, therefore,
rule than as between landlord
for the application of the
and tenant.
be safely said that in those courts which

hold that a constructive eviction is caused by a tenant being
to accept a lease under a
obliged, on pain of dispossession,
Hence
may
it
paramount title, either based upon a mortgage or a judgment of a court of competent jurisdiction, it would, a
held that a
fortiori, be
constructive
eviction,
amounting
to a breach of the covenants of
warranty or for quiet en-
" It is well known

Kingston's case,
that a recovery cannot be had in
Thus the
ejectment without proof of title, and

it may be defeated by
proving
a tenant
right of the landlord, in

ejectment for the land, would
case of Naglee v. Ingersoll, 7 Barr,

(Penn. State R.) 185, will, on exam-
an outstanding
The
son.
an
rule would never be
applied to the case of one who had

received a conveyance in fee contain-
ing a reservation of a ground-rent to

the grantor; Brown v. Dickerson, 2
Jones, (12 Penn. State R.) 372. The
that
to
in a third per-
title
result of allowing
deny the
therefore be to take the estate from
ination,
the latter and confer
this.
it
on the former
whenever there was a defect

in the
forward
to
either
or the proof brought
title itself
sustain
it.
This would
obviously be equally inconsistent

with public policy and private faith,
and would prevent men from letting

their property even when they were
unable to use
it
themselves
therefore, possession
is
when,
obtained under
a lease, the lessee is estopped from

keeping the land in violation of the
agreement under which it was ac2 Smith's Lead. Gas.

quired."
(5th
Am.
ed.)
23*
"
J.,
"
is
mentis,
be found not
to contradict
The
fourth plea," said Bell,

either a nil habuit in tene-
which in covenant
demurrer, or
it
plea of eviction.
is
is bad on
tantamount to a
But neither of the
latter pleas set out the
name
of the
or allege that he entered

upon the defendant's possession by
virtue of a lawful title acquired
evictor
before or at the time of the grant to

This averment is abthe defendant.
solutely essential
of such plea."
to the
sufficiency
270
joyment, would be caused by the purchase of such a
whoever might
and such would appear
title
by
be entitled to the benefit of the covenant

to be
now
the general course of
decision.
In the early case in

1
McCarty,
the
New
in
plaintiff',
York, however, of Waldron v.

an action on the covenant of war-
ranty, averred that at the execution of the deed to himself,
the premises were in cumbered 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,
" In
good*
Spencer, J., who delivered the opinion, saying,
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
From precedents, and as no aufree from incumbrance.
thority has been
ment
is
shown
that the covenant for quiet enjoy-
broken by any other acts than an entry and eviction
or a disturbance of a possession
demurrer is well taken."
that the
that this decision is
New
itself,
we
It is,
are of opinion
however, believed
no longer recognized as authority
York, nor sustained by the weight of authority
in
else-
where.
2
of Sprague v. Baker, where one who

land
with
covenants for quiet enjoyment and
received
having
of warranty, paid the amount of a mortgage upon being
Thus,
in the case
threatened by the mortgagee to sue for possession of the

"
nothing to
premises under it, it was held that there was
8
distinguish this case from that of Hamilton v. Cutts, but a
i
8 Johnson, 471.
3 4 Mass.
350
Supra,
p. 246.
17 Mass. 590.
271
not affect the merits of the quespoint of form, which does

disturbed in the enjoyment of
has
been
The plaintiff
tion.
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
The
covenant of quiet enjoyment."
and a breach of the

existence of a mort-
gage seems placed upon the same footing as a paramount

established
title
by a judgment of a court of record, as
1
appears both by the statute of Geo. II. and in the cases
generally, on the ground that a mortgagee (except in New
York, since the revised statutes,) has always a right of pos2

session, and where a paramount title has been established
by a court of competent
it
jurisdiction,
has been repeat-
edly held, in accordance with this decision, that there is

objection to a purchase or lease of such title being made
no
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
Thus
in
title is
unnecessary.
a recent case in Pennsylvania, a mortgagor con-
veyed the premises bound by the mortgage, reserving to

hinlself 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

The purchaser sold
acts, means, consent or procurement.
who, upon the premises being advertised at

under proceedings on the mortgage, purchased
to the plaintiffs,
sheriff's sale
them and took a deed
and
therefor,
this
was held a
cient eviction to entitle the plaintiffs to recover.

1
Supra, p. 264.
Notes to Keech
-with those
v.
Hall, 1 Smith's
Lead. Cas. (5th Am. ed.)

3 It will be observed that the facts
in
this
case
were almost identical
suffi-
presented in Waldron
v.
McCarty, supra.
4
Brown
(12 Penn.
v. Dickerson, 2 Jones,
State R.) 372. "It is
true," said Burnside, J.,
who
deliv-

So, in a late case in Massachusetts where the facts were
almost similar, the Court said, " The premises were offered
ered the opinion of the Court, " that
the
goes more particularly to the possession 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 expulsion from the premises, or some actual disturbance of the possession (2
Sugden on Vendors, 10th ed. 514-
by reason of some adverse

existing at the making of the
held that where there is a conveyance with a covenant of warranty,

is
and there is in fact a superior

which is asserted by offering
title,
the
premises for sale at public auction,
and the grantee under the subse-
quent conveyance yields
to the supe-
and purchases it, this asof title and purchase is a
rior title
sertion
ouster or disturbance
sufficient
to
sustain an action
246.
on the covenant of
warranty, notwithstanding there was
no actual dispossession. It is further
ruled that if one of several grantees
under the subsequent conveyance,
session
make
522),
right
covenant, not of one subsequently

acquired. Ellis v. Welch, 6 Mass.
Proof of the demand of poson a superior right, will not

be deemed sufficient on which to
found the action to maintain it, the
;
must exhibit an assertion

and proceeding on that title, an ousplaintiff
ter or disturbance
by means of
it
but a technical ouster on a judgment

is not absolutely necessary;
2 Greenleafs Ev. 243. Here, one of
at law,
the plaintiffs was out of possession ;

other, in order to retain the
the purchase and remain in

may have their action
possession, all
These principles
are directly in point, and if respected,
rule this case. The weight of modern
on the covenant.
authority
King
is
in accordance with them.
Kerr, 5 Ohio, 158, decides
v.
that if the vendor, in possession (after

a judgment in ejectment against
him), buys in the claimant's title,
is equivalent to an execution,
and an actual ouster is not necessary.
and the
that
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-
See, also, Foote v. Burnett, 10 Ohio,

330. The same good sense is found
possession,
Waldron v. McCarty, 3 Johns.

has not met the approbation of
tled in
464,
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
We particularly refer
of the Courts.
to the learned
and able opinion of Parker, Chief

Justice of the Supreme Court of New
Hampshire,
N. Hamp.
in
74,
Loomis
v.
(see this
Bedel, 11
case more
particularly noticed, infra,)
where
it
New Jersey Stewart v. Drake,

A mortgaged
4 Halsted, 139, 140.
premises to B, and then sold them
in
to C, with
a covenant of quiet en-
joyment the premises were afterwards sold under B's mortgage to

D, who was C's son-in-law and tenant in possession D sold and gave
;
possession to C; held, an eviction,

and in the opinion of the Court
was an eviction when the

were bought in by D.
They have substantially adopted the
principle in Alabama; Dav-
there
premises

for sale at public auction,
and
if
273
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
of suit in the action
the costs
as well as for the value of the land, if

plaintiff'
notified
of
the
The same
duly
pendency of the action."
against the
and applied in many other

the weight both of reason and
principle has been recognized

States, and
is
supported by
authority.
v.
enport
We
Bartlett, 9
Alabama, 179.
think the weight of

with the plaintiff, and
therefore
authority is
the nonsuit
to
ought
be
taken
Whitney
ing,
York
v.
Dinsmore, 6 Gush-
(Mass.) 124. The early New

cases of Waldron v. McCarty,
Kortz v. Carpenter, &c. were relied

on by the defendant, but the Court
said,
"
However
this
may be, we
sider the law well settled in this
con-
Com-
monwealth, and we see no reason for

adopting the doctrine laid down in
the cases cited from the
The
New York
whether, in
all cases, a
party must wait until he
is
actually evicted or ousted, before
he can have the benefit of the covereports.
question
is
nant of warranty.
We hold that
there may be other acts of the party
having a paramount title, which may
be equivalent to an eviction. In the
case of Duvall v. Craig, 2 Wheaton, 45,
it was held, that if a
grantee is unable
lent to
if
an
the grantee
claim
is
title, it is
is
equivathink
And so we
eviction.
and a
in possession,
made on him by a party hav-
title, against which he is unable

to defend himself, he may yield to a
ing a
off."
1
ing under an elder
obtain possession, in consequence of an existing possession or

seizin by a person
claiming or holdto
dispossession or purchase in the para-
mount
title
and the present case,
are of opinion, depends on a sim-
we
ilar principle."
2 White v.
(Mass.) 8 1
Whitney, 3 Metcalf,
Bevis v. Smith,
Eastabrook
v.
Maine, 244
Id. 1 94
Smith, 6 Gray, (Mass.)

572; Donnell u. Thompson, 1 Fairfield, (Me.) 170; Kelly v. Low, 18
Cole
v.
Lee, 30
Id. 392,
see this case noticed, infra; Stewart
v.
Drake, 4 Halsted, (N. J.) 139 Haffey's Heirs v. Birchetts, 11 Leigh,

(Va.) 88 Dupuy v. Roebuck, 7 Ala;
bama, 488, (see
this case noticed
more
Tuite v. Miller,
particularly, infra)
(Ohio,) 5 West. Law Journal, 413;
;
(and see King
whose
son
/ra,
"
decision,
v.
it
Kerr, 5 Ohio, 154,
was
said in
John-
Nyce's Exr., 17 Ohio, 69, z'nwas controlled by the local
v.
occupying claimant law.") In Leary
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,
payment of rent, by holding
v. Durham, 4 Georgia, 593, after land

had been conveyed with a general
the
covenant of warranty, the widow of

a former owner made application,
under the local statutes, for an ad-
was an outstanding and better title than Dur-
measurement
and
assignment of
which commissioners
The judgment
over.
of the Court had
set-
tled the fact that there
ham's, to a portion of this land. The

existence of this claim was an incum-
ascertained
and fixed by
dower, upon
were regularly appointed, and their
return was made the judgment of
the Court, which directed a writ of
brance,
possession to be issued upon applicaThe plaintion of the demandant.
damages
tiff (the
assignee of the covenantee)
rested his case here, with proof that
entry of a mortgagee for foreclosure,

though made under a statute which
the injury to the land was four or
does not require that the possession

of the mortgagee should be continued, is a breach, (9 Mass. Rep. 495
hundred dollars, and that his

covenantor had notice of the penfive
dency of these proceedings.

trial
On
the
the Court ordered a nonsuit, on

(among others) that there
law,
and was,
in our opinion, such a

of the warranty as to author-
breach
ize a
suit; not to
recover nominal
only, but indemnity for the

actual injury incurred. If the formal
16 Pickering, 56,) the conclusion is

irresistible that the proceeding in
dower would
the ground
this claim of
had been no eviction. But the judgment was reversed by the Supreme
Court, and Lumpkin, J., in deliver-
present suit." But it may be doubted

whether the judgment of nonsuit in
ing the opinion of the Court, after

referring to the local provisions as to
assignment of dower, held the follow" All of this has been

ing language
:
done in the present case, except that

the record furnishes no evidence that
a writ of possession has ever issued.
The
legal
is
presumption
was needed, and
rendered voluntarily.
testify that
The
Leary, the
dollars.
none
We
five
If,
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, 418 the case of
;
Davis
has
hun-
parties to the title being before the
think that the case
should have been submitted to the

jury.
was not properly entered.

indeed, the plaintiff had proved
that he "had surrendered voluntathis case
Logan, 8 B. Monroe, 342,

was a suit in equity, where all the
witnesses
plaintiff,
been injured some four or

dred
that
that the tenant sur-
sustain the
After the judgment of confir-
mation by the Court, not only the

actual, but the market value of the
v.
Court, there was a general adjusttitle and settlement of dam-
ment of
ages) but the testimony of the witnesses seems to have merely been
;
premises has diminished to the extent

of the worth of the dower. The ten-
that by tlu- proceedings the marketvalue of the land was diminished by

that amount, that is to >a\ tin- cove-
ant would have subjrrtnl Imnsrlf to
nantee would, before a resale of the

and some
which are not quite reconcilable
to
it,
but
modern
believed to be supported by the weight of
is
it
dicta
authority.
premises by himself, be obliged to
yielded possession
discharge the incumbrance or have

its price deducted from the purchase-
title
money he would
receive, and, until
had actually happened,

it would seem that he had no right to
more than nominal damages supra,
these events
p.
The
34.
case
is
worthy of con-
sideration as evincing a strong desire

in that State to make the covenant
of warranty as comprehensive as posand the course of decision in
sible,
South Carolina, where an eviction
is
to
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
Indeed the precise point decided in Leary v. Durham arose in a

very recent case in that State, where
tion of the plaintiff.
was held that the mere assignment or assessment of dower constia breach of the covenant of
tutes
warranty
it
Lewis
v.
Law
Lewis, 5 Rich-
(S. Car.) R. 12.

will be remembered that in
ardson's
But
South
Carolina, the covenant of warranty

in obedience to a long course of
is,
decision there, treated as a covenant

for seizin ; see Mackey v. Collins, 2
Nott
& McCord,
supra, p. 219
v.
(S. Car.) 186, and

and see also Williams
Weatherbee,
Aikens, (Verm.)
thereof,
outstanding
mere existence of the
it
superior
the contract of purchase must be

considered as in existence, arid any
held unnecessary to a breach of this

covenant, was cited with approbation.
the
and been dispossessed
better
title
could not have constituted an evic-
ed to
If he had yield-
by giving up possession, or
bought it in and continued his possession under it, the action might
have been sustained," but it was decided that "the mere payment of
it
to avoid
a sacrifice of
the land on execution
and even a
the
judgment
consequent eviction, will not authorize a suit against the grantor on the
covenant." In Reasoner
son,
5 Indiana, 393,
v.
Edmund-
although the
mortgage had been foreclosed and

the premises bought in by the mortgagee, yet no sheriff's deed had been
made to him, and there was no evi-
240, supra, p. 219.
dence that the
In Witty v. Hightower, 12 Sm. &

Marsh. (Miss.) 478, the facts averred
yielded up the possession or purchased the mortgagee's title, and it

was hence properly held that there
were nearly the

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
in the declaration
same
it
as those in
was
said,
" until the

purchaser has
plaintiff
had either
" The
eviction.
case,"
said the Court, " is clearly distinguishable from Hunt v. Amidon, 4 Hill,
had been no
(N. Y.) 345, a case that goes farther

in
inferring an eviction from facts
than any other we have met with." In
76
may, perhaps, be said, that there should be a distincbetween a lease and a purchase of the paramount
It
tion taken
Hunt
4
Amidon,
v.
(1 Hill, 147
S. C.
defendant had, for the

consideration of $1,200, sold to the
with a covenant of
plaintiff's grantor,
Id. 345,) the
warranty, premises which were then

encumbered by a mortgage, under
foreclosure of which the premises were
afterwards sold and bought for $470
then brought an
plaintiff, who
by the
action of assumpsit for money paid

to the vendor's use; and Walworth,
Ch. J., in delivering the opinion of

the Court, said
" It is
perfectly evident that if
Hunt, instead of purchasing in the
undoubtedly contained the usual directions as provided for in the 135th

rule of the Court of Chancery, that
the purchaser should be
had suffered them to be

and had de-
foreclosure,
sold to a third person,
up the possession to the purchaser as directed by the decree of

foreclosure, he could immediately
livered
have brought an action at law against

Amidon, as assignee of the covenant,
Hunt by an action
law founded upon a title paramount to that which Amidon conactual eviction of
veyed
" It
Babcock with warranty.
to
at least doubtful
is
whether an
action at law could have been sus-
tained
upon this covenant for quiet

enjoyment without showing an actual
eviction.
And I admit that under
such a covenant the grantee of the
land has no right to give it up voluna stranger who claims by
paramount, or even to pay off
tarily to
title
an alleged incumbrance without
and then
resort to his action
enjoyment contained in the

deed from Amidon to Babcock, in
which action he would have recovered the whole $1,200 mentioned in
the covenant in the deed."
that deed as the consideration for the
mount,
for quiet
premises.
The defendant
therefore
has been clearly benefited by the

bidding in the premises
himself at the Master's sale for the
plaintiff's
$4 70 which was due upon the decree

for the debt and costs on the mortgage foreclosure. The question then
arises whether upon equitable principles,
st.-in'
the plaintiff was

aside
and
bound
to
suffer hia land to
he san-ifieed to a stranger for this

smaller sum, and then to resort to his
.id ion at law upon the covenant in
the deed to Babcock
or whether the
decree of foreclosure and
sale,
which
pos-
at
premises himself under the decree of
let into
upon production of the Master's deed and the actual sale under
that decree, were not of themselves
equivalent in equity at least to an
session
suit,
upon
The remark that the grantee has

no right to give up voluntarily to a
who
stranger
is
claims
by
title
entirely justified
para-
by the
and the exauthorities (see infra)

" or even to
pay off an
pression,
alleged incumbrance without suit"
;
must, it is apprehended, be referred

to the same meaning, for it is generally held that although
it
is
absolute-
claim
ly necessary that the adverse
should be hostilely asserted, yet that
is not necessary that the assertion
should be made by a judgment, or
it
even a
suit,
any more than
it
is
ne-
cessary that an eviction, when adual,

should be under legal proeess ami
the effect of a judgment, a derive
or a suit
is,
in this relation,
no more

title
by the covenantee, inasmuch as
277
in case of a lease
in legal construction, the holder of the
paramount
title
it is,
who
than an unequivocal assertion of the
rendered possession
right by the
was obviously
held that there was an eviction pro
tanto, and the remarks as to the pur-
paramount claimant, (see

In the recent case of
infra, p. 288).
Fowler
Poling, 6 Barbour's S. C.
(N. Y.) 168, Edmonds, J., said, in de" The
livering the opinion,
grantee
surrender
may
possession to the rightful
v.
owner and
that will be a sufficient
him
ouster to entitle
to his action
on
the covenant of warranty. It is true

the Chancellor said in Hunt v. Ami-
don, in the Court of Errors, that the
grantee had no right to give up voluntarily to a stranger claiming by
paramount but his remark was

and he was evidently misIt would seem, however,
taken."
that if the Chancellor meant that a
grantor had no right to abandon the
title
obiter,
possession
until
at
least a
demand
the paramount owner or

something done by the grantee, his
made by
language is fully justified by authorAfter a rapid review of some of

ity.
" From
the authorities, it was added,
these conflicting authorities, I deduce
the true rule in this State to be, that

there must be an actual disturbance
of the possession, and that where the

covenantee is actually out of possession, either by due process of law or
by an entry of the rightful owner or
by a surrender to one having the
paramount title, there is an eviction
the covenant is broken and an action
these circumstances
to them.
Under
it
chaser being " actually out of posses"

sion would seem not to be necessary
to the decision.
In Paul
v.
Witman,
Watts
&
Serg. (Pa.) 357, however, Rogers, J.,

"
observed, There must be a change of
which is unquestionably
but the change of possession
be a constructive one
there
possession,"
correct
may
must be a cessation of enjoyment

under the bad title, but it would seem
an unnecessary prelude to the acquisition of a new enjoyment under the
good title, to go through a form of
ouster and reentry. In Paul v. Witman there was neither averment nor
proof of anything to support even a
constructive eviction, and hence the
Court correctly
said,
"
judgment
in ejectment, without
eviction
more, is not an
there must be a change of
But if the declaration

had averred an eviction, and the
proof had been that the covenantee
had actually retired before the judgment, or had been compelled to take
possession.
a lease under, or to purchase the
good title, it is possible that he might

have been held entitled to recover."
purchaser
In the case of Poyntell-v. Spencer, 6

Barr, (Pa.) 257/Gibson, Ch. J., re"
marked, Though a covenantee must
had, at the instance and request of

his vendor, instituted
proceedings in
actually go out of possession to bring

himself within the words of the cov-
will lie."
In
this case the
between himself and the
enant,
he need not wait
holders of the paramount title (the

latter having a title to an undivided
thrust
out."
partition
part of the land), and had their share

set
oft'
to
them
in severally
24
and
sur-
If,
till
he
is
however, the pre-
ceding sentences are carefully read,

it will be seen that this
expression
must not be construed too
literally.

possession, the possession of the tenant being that of
the landlord, while in case of a purchase the possession remains in the covenantee. To this it may be answered, that
is in
although in the latter case the covenantee in reality remains

possession, yet he is supposed to have been actually ousted,
in
whereby
all
connection with his former
title is
dissolved,
then to have been reinstated under the paramount
Secondly.
The next
tive eviction is
title.
and
question under the head of construcif the covenantee

purchase or ac-
whether
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
or to deprive the purchaser of it; the

possession himself,
difference being, that when there was no such judg-
only
These
are,
" If
they (the holders of
had actually turned

him out, his relation to the vendor
would have been dissolved, and he
would then have unquestionably been
at liberty to form a new one by leasBut
ing or purchasing from them.
for what purpose execute a writ of
possession, and bring him back at the
the better
title)
next moment as a lessee or a purThe ceremony would have

been a ridiculous one. A forcible
eviction on a recovery by title is not
clia-cr V
an indispensable ingredient
in the
breach of a warranty. Tin- drl'mdant may give way to such a recovery,
and though he must actually go out
of possession to bring himself within

the words of the covenant, he need
not wait till he is thrust out/' The
law in Pennsylvania may be said to

be now settled by the case of Brown
Diokerson, supra, p. 271, in accordance with modern authority,
v.
v.
Spencer, 6 Barr, (Pa.)
seems hardly necessary to
remark, that in every case in which
an eviction would be held to be
Poyntell
257.
It
caused by the purchase of the paramount title, the damages would be
measured by the amount which had

been fairly and bonajide paid for tlii>
purpose, and could never exceed that
amount.
279
ment, the covenantee retired at his peril, with the burden of

to which he would
proving that the adverse title was one
1
have been compelled to
Where
yield.
there
was a judg-
was held by some authorities to be primd facie eviwhen the covenantor had proper notice of the acand
dence,
ment,
tion,
it
it
was conclusive evidence of
not, therefore, class
ered, were
it
by
not that
itself the
when
there
the better
question
is
title.
now
should
to be consid-
no judgment or decree
of a court of competent jurisdiction, it may be objected that

that a party may receive
every door seems open to fraud
the possession of land with a covenant of warranty, and
may, without ever having left that possession, collusively
purchase in any
this
it
may
title,
briefly
and then sue upon
his covenant.
be replied, that when fraud
is
To
intended,
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
is
easy to hide
it
right to such a judgment on one side, and no

denial of that right on the other ; nor, even if they had the
primd facie
But this very circumpower, would it be proper to do so.

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
3
There would seem to
impeached on the ground of fraud.
be no means by which a covenantor could possibly be injured by an affirmative answer to the question under inquiry.
Even where
there
is
no pretence of fraud or
collusion, there
seems but a single case in which, in the action on the covenant, the whole question of title cannot be gone into, and
that is where the party bound by the covenant refuses, upon
1
2
3
applies to actions on
Supra, p. 248.
Supra, pp. 236, 248, 249.
for title
And, of course, the rule equally
hart, (S. Car.) 66.
Wilson
v.
the covenants
McElwee,
Strob-
280
Having thus, by his

proper notice, to come in and defend.
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.
1
Indeed, in proportion as the collusiveness of the judgis increased, the

temptation to fraud will increase also,
ment
and
it is,
therefore,
most
for the interest of the
covenantor
as possible be given to a judgment to

which he has not been a party or privy. But the advantage
that as
little effect
by the covenantee from a collusive judgment

Such an advantage must be
can always be counteracted.
if at all,
to
be
gained,
by enabling him to purchase
sought
to be obtained
the paramount title at a low price, and then recover

from the covenantor the full consideration paid for the
in
But by limiting the damages, as is done in the

premises.
case of the covenant against incumbrances, to the actual
amount thus paid, 2 every temptation to fraud is precluded,
and the covenantor is always allowed, in mitigation of damages, to give evidence of what the plaintiff' has paid to buy
3
in the outstanding title, and if the amount which he has
thus paid be a nominal one, his damages will be nominal

also. 4
In accordance with these principles, it has been held that

a purchase by a covenantee, of an outstanding paramount
1
Supra,
to protect his title, takes
p. 230.
Supra, p. 138.
3 Tufts v.
Adams,8 Pickering, (Mass.)
550; Cole v. Lee, 30 Maine, 392.
4
Lcflingwell v. Elliot, 8 Pickering,

457 S. C. 10 Id. 204 Loomis v. Be;
lamp. 87. There are dicta

to a contrary effect in Martin v. Atdel,
1 1
N.
kinson,
kin,
said,
.1.,
"
Georgia, 237, wh<

in
iv
Lump-
delivering the opinion,
Whenever a vendee,
in
order
up an
out-
standing incumbrance, he is entitled

only to be refunded the amount paid.
But when the property is bond Jide

sold under a mortgage or judgment
lien, existing at the
tract,
time of the con-
without fraud or connivance
on the part of the vendee, and tinvendee re-purchases it, the priee
which he pays is no criterion whatever of the damage sustained."
281

when
actually asserted, will constitute such

an eviction as will entitle him to damages upon his covetitle,
that
title is
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

The
covenantor, of part of the premises to other parties.
land was wild and uncultivated, and there was no actual

Upon the death of one of the prior
possession by any one.
grantees, his interest in the land
was
sold
and purchased by the
tor at public sale
his administra-
by
plaintiff,
held that these facts constituted an eviction.
and
So
it
in
was
a re-
cent case in Vermont, the purchaser having been sued by the

A It seems to
1 1
1 N.
Hamp. 74.
be generally settled," said Parker,
Ch. J., who delivered the opinion
plaintiff,
of the Court, " that in order to support an action upon a covenant of
his deed, the
warranty, there must be something

more than evidence of an outstandThere must be
ing paramount title.
an assertion of that title, and an ouster or disturbance by means of it.
But no technical eviction by a judgment 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
under the paramount title

amounts to a breach of a covenant of
entry
warranty.
And
upon demand
the
grantee may
surrender the land to a
claimant having a good

sort to his action.
title,
Hamilton
and
re-
suance of a decree of the Court of
and
Chancery,
purchased
who then brought
by the
his action
upon the covenant of warranty in

Court held that an entry and expulsion were necessary,
and that there was no sufficient eviction 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 possession, he would immediately have a
right of action upon the covenant of
warranty in his deed and this rijht
;
would not be barred or

should he forthwith
forfeited
the
premises from the claimant, to whose
superior title he had thus yielded the
He
possession.
purchase
might, on such pur-
Cutts,
chase, immediately re-enter into the
4 Mass. Rep. 349. But in Waldron

McCarty, 3 Johnson, 464, where
there was an outstanding mortgage
possession, and still maintain his action on the covenant.

If, instead of
at the time of the
of a paramount title, and purchases

without any actual entry of the claim-
v.
v.
plaintiff,
conveyance to the
and the premises were after-
wards sold upon the mortgage
24*
in pur-
this formality,
ant under
it,
he yields
where
is
to the claims
the substantial
282
holder of the paramount title, bought in that title before

judgment and in order to prevent being dispossessed
1
of the land, and it was held that this was an eviction.
final
For all practical purunder the grant to

which the covenant is attached and
under which he originally entered, is
difference?
poses, his title
as
much
defeated in the one case as
in the other.
He
sessed, so
as
He
cerned.
but he
far
is
so
is
is
in fact dispos-
that
still
title
in
is
con-
possession,
under another
title,
ad-
verse and paramount to his former
one
and
his
purchase
is,
therefore,
equivalent to an entry of the claimIt is an ouster by his consent,

ant.
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 defect of the title under which he originally entered,
he chooses
to yield
peaceably to the assertion of a better

The grantitle, and to purchase it.
tor who conveys a defective title, with
a covenant of warranty, has no reason to complain of this. No action
can be maintained against him upon
covenant, in such case, except
upon proof of the actual existence of
his
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
was asserted and yielded to,

should he be permitted to insist
there must be a formal surrender of
the
title
by a purchase without actually leaving 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 below, in this case was, however, propof the
erly set aside on the ground
measure of damages, the Court sayof the

ing that there was no evidence
amount which had been paid by the

plaintiff
the
for
purchase of the
property, and that his damages must

be measured by that amount unless it
exceed the value of the land.

l Turner v.
Goodrich, 3 Deane,
(Verm.) 709. "We have now the
case," said Redfield, Ch. J.,
livered
the
opinion,
" of
who
de-
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
As the
the same thing as eviction.
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
and proper that he should recover such indemnity under the cove-
why
just
the possession, or actual entry, and

that if this was not done there could
nants of warranty. If the covenantee never takes possession, or if

having taken possession the outstand-
be no breach of his covenant ? How

would his interests be benefited by
tin: going out and going back again ?
Tin- ouster, so far as holding under
his title
is
concerned,
is
as
efl'e<
-tual
ing
he
title
is
not asserted against him.
full iiuk-mnity by artnm

But
the covenant- of sei/.in.
he is in possession of the land,
may have
upon
when
283
There are a few cases whose language might admit of

it
seems proper to
misconstruction, and which, therefore,
Thus in a case in Kentucky, it was broadly

" It could not he
said,
disputed that if a vendee, before eviction, purchase in an outstanding paramount title, he cannot
notice here.
continue in possession under his first purchase, and claim

damages as for a breach of warranty, on account of the
and the
brought, or the
suit is
title
any way, perhaps, wherebecomes impossible for the cove-
Sprague
u.
Baker,
1 7
Mass. 590.
was
In
asserted in
this case, the outstanding title
by
fact a
mere incumbrance, and should
have
been
it
nantee longer to maintain

it is
sion,
his posses-
same thing whether he
the
yields without suit or after judgment,

to a writ of seizin and possession, or
in the outstanding title at a fair
rate.
Of course, if he yields to a
buys
claim of
title,
without suit or with-
out judgment or notice to the covenantor to defend his title, he assumes

the burden of showing the
title
to
yields, good, and so also if

purchases in the outstanding title ;
which he
he
and
in either case,
possible
But
he must rebut
all
implication of collusion.
matter of evidence, and
this is
when
it
established,
should,
and
as
we
regard the recent decisions, does constitute a breach of the covenants of

warranty, and entitles the party to
recover the amount paid to obtain
the
and
all
expenses necessary
in the premises, which must extend
title,
to the costs of the suit, while
and counsel
fees
Pitkins
pending,
v.
Leavitt,
13 Vermont, 379.
" A
summary of the cases upon
this point will be found in Rawle on
Covenants, 234 et seq. The author

assumes that the American law is fully
settled to this extent.
which the law
is
The
declared are as follows

Coble,
Dev.
&
cases in
so decided or so
:
Clapp
v.
Bat. Chan. R. 177
so
in
regarded probably
it a breach of the
but the Court held
covenant of warranty, as a perfect
would have been, if asserted

and bought in by the covenantee to
save being dispossessed under it.
Patten v. McFarlane, 3 Perm. 425.
Dickinson v. Vorhees, 7 Watts &
Serg. 409; Loomis v. Bedel, 11 N.
title
Hamp.
Brown
74;
v.
Dickerson, 12
Penn. State R. 372.

"
The
of the
conclusion
which seems
That the weight of
the cases,
author,
be fully justified by
to
is,
authority is in favor of the position

that the purchase by the covenantee,
of an outstanding paramount title,
when
will
that
title
will entitle
is
actually asserted,
such an eviction as
constitute
him
to
damages upon
his
covenants for quiet enjoyment or of

warranty, measured by the amount
he has thus paid,' and necessary expenses of course, according to the
decisions in this State
law.
who
and
at
common
This rule, as applied to one

has entered into possession unis no doubt the true
have no doubt is fully sus-
der his deed,

rule,
and
tained by the latest and best English

decisions
1
upon this
Vanmetre v.
(Ken.) 92 see
;
subject."
Griffith,
4 Dana,
this case, infra, p. 284.

In a previous case, 1 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
title
he has acquired."
show
is to
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
He cannot continue in possespurchased title in warfare.
and
sion,
set
up the new
title
But
in hostility to the old."
language proceeds upon a misapplication of the familiar

principle in equity that if a mortgagee, executor, trustee,
this
tenant for
&c.,
life,
who have a
in
vantage by being
limited interest^ get an ad" behind the back " of

possession, or
the party interested in the subject-matter, he shall not retain

it
own
for his
benefit, but
hold
it
in trust.
This, however,
was never applied to the case of a purchaser,

with reference to his remedy on the covenants for title, as he
it is
believed,
can have no interest in setting up or procuring an adverse

except for the simple purpose of his own protection, and
title
this protection the
The mistake has
vendor has expressly covenanted to afford.

from forgetting that the measure of
arisen
damages is not^ in such cases of purchase, the considerationmoney and interest (which would open every door to fraud),
but simply the amount which has been paid to purchase the
paramount
1
title.
Morgan's Heirs
v.
Boone's Heirs,
4 Monroe, (Ken.) 297.

2 Nesbitt v.
Tredennick, 1 Ball &
46
Beatty,
Holeridge v. Gillespie,
;
2 Johns. Ch. 33
Zandt,
3
The
Barbour,
(N. Y.) 102.
cided.
Beauchamp, 3 Dana, (Ken.) 323, and

Coleman v. Colernan, Id. 403, deidcd no more than that one tenant
cases of Venable
v.
in
common
could not, before eviction,
Vanmetre
to 'both.
Dana,
w.
title
to
the prejudice of his co-tenant, but

that the purchase must enure jointly
Van
Burhans
S. C.
purchase in an outstanding
with
v.
Griffith,
was quite correctly deOne who had received land
92,
covenant
of warranty,
con-
tracted with the paramount owner to

buy in his title, in case it should
be
prove, on legal investigation, to
the better one.
Suit was brought
285

It
may also
be observed that cases sometimes occur where
them the whole ques-
courts of equity have brought before
and rendering the original venupon his warranty as for

an eviction, whereby the vendee, be-
against the covenantee, and notice
held,
given to the covenantor. Judgment

was entered in favor of the paramount title by confession, and on a
dor
liable
advantage of continuing in
side the
writ of possession the sheriff indorsed that he had delivered the pos-
difference
possession, may gain the
between the amount recoverable up-
session to the plaintiff's agent, who

then delivered it to the covenantee,
on the warranty, and the sum which

he has given for the paramount title,
it is obvious that he will have gained
and the
latter
then sued the repre-
who had
time, and judgment
sentatives of his covenantor,
died in the
mean
was confessed
amount of the
for the
original purchase- money, with interest.
For part of
judgment one
this
of the administrators gave his own

note and paid the balance, and then
upon discovering the contract which

had been made between the covenantee and the paramount owner, and
that the amount paid by the former
for the paramount title was less than
the judgment which he had recovered
against the estate of the covenantor,
a bill to restrain the collection
filed
of the balance of the judgment and

to refund the excess over the amount
advantage at the expense of his

vendor, by a contract made while he
was certainly in possession under the
his
and while the obligaand good faith beof a vendee

condition
the
to
longing
in possession under warranty, were
full force
resting upon him in their
vendor's
title,
tions of fidelity
and
To
vigor.
establish such a con-
sequence would be to admit that a

vendee in possession may, by a contract
made
for his exclusive benefit,
to the title
place himself in hostility
under which he acquired and holds
and that he may, by

means of the title and possession de-
possession
thus paid by the covenantee. The

Chancellor, under these circumstan-
rived from his vendor, obtain an advantage at the expense and by the
The results thus
loss of the vendor."
most properly decreed for the

complainant, and the Court of ApWith
peals affirmed the decree.
deprecated are, as has been said, prevented, or, as in this case, cured, not
by denying a covenantee any remedy
ces,
these facts in view, the remarks of

Marshall, J., in the latter court, are
" If a
judgperfectly appropriate
ment obtained," said he, " under
:
such circumstances, and the effect of

which, by operation of a previous
upon
his covenant,
limiting his
damages
but by
strictly
to the
amount
paid by him for the better title. The

case of Woodward v. Allen, 3 Dana,
164, though perhaps more properly
under the preceding head,
classified
made by the vendee, is to

confirm the existing possession by
may be
uniting the paramount title to it, shall

be allowed to have the further effect
with the
Kentucky is in harmony
more modern authorities
elsewhere. In that case, there was a
of severing the possession from the
covenant for restitution of the con-
contract
title
under which
it
was originally
referred to as showing that
the law in
sideration
money
if
the land should
286
tion of
title,
and
all
the parties are before the court.

This
in the marshalling or ad-
perhaps most frequently happens

"
If it be admitted," said
lost.
" that a covenant
Robertson, Ch. J.,
to be responsible if the land is lost,
nant in the deed
be
is
sufficient to
cover
a claim for dower, provided the same

be prosecuted to such a result that
tantamount to a covenant of geneand that, therefore, an

eviction would be indispensable to
the covenantee
ral warranty,
is thereby
deprived
of even the temporary possession of
the whole or any part of the land
the plaintiff's right to maintain this

action, still we are clearly of the
conveyed. It may be thought that a

covenant against incumbrances is the
opinion that he proved on the
appropriate covenant to meet such a

case, but it is equally well met by
the covenant of warranty. In order,
is
trial
was necessary to entitle him to a

judgment. He exhibited a judgment of eviction in an
action of ejectment, and proved that
the defendant as well as himself was
a party to the ejectment, that the
judgment was for the land embraced
by the covenant, and that he had,
every
fact that
after the
judgment, surrendered to
one of the
lessors
and leased the
land of him."
In Johnson
however, to maintain an action upon

the latter covenant, there must, as a
general rule, have been an eviction,
and
this fact
declaration.
it is
should appear from the

There are exceptions,
true, to this general rule,
and
in
particular cases other matters have
been held equivalent

In the case of King
to
an eviction.
v.
Kerr's Ad-
ministrators, 5 Ohio, 154, the Court
Nyce's Executor, 1 7
Ohio, 66, the declaration averred a
right of dower in the widow of a
warranty,
owner of the property, and

upon her petition for dower being
until the grantee, his heirs or assignee,

is evicted from or disturbed in the
the covenantee took defence,
enjoyment of the premises or a part

of them, by the setting up of a superior or paramount title.'
Still, in
that case it was determined that
where, after a judgment in eject-
v.
prior
filed,
" and
such
proceedings were had
therein that afterwards, in November Term, dower in all of said lands
and premises was duly assigned and

confirmed unto the said J. M. at the
gross sum of $137.50, which the
plaintiff was thereby ordered to pay
the said J. M., in full for her
dower, &c., in sixty days after said
to
November Term, and
in
default
thereof that execution issue as upon
judgments
by means whereof
paid and been liable
at law,
tin- plaiiitill'lias
pay a large sum of money," &c.

demurrer, it was held that this
was no eviction. " We do not doubt,"
sion,
claiming payment for improve-
ments under the occupying claimant

law, and while so remaining in possession purchases in the
title,
the tenant
the
upon
paramount
may have an
covenant
of
action
warranty
acagainst his grantor, although not

this <leIn
evicted.
making
tually
cision
On
the
"that the cove-
this
ment, the tenant remains in posses-
to
said Hitchcock, J.,
covenant of
covenant is not broken
say, in speaking of the
the Court was controlled
principles
claimant law.
of
the
Under
1>\
occupying
that law, the
unoccupant cannot be dispossessed

some of
ministration of assets,
287
the instances of which have
In these cases, where an equialready been referred to.

table adjustment of all conflicting claims can' be made and
compensation awarded, either by reference to a Master, or

if necessary, by issues of quantum damnificatus, the rule
as to eviction
that even a
more
is
payment
to
and
seems not necessary

purchase the better title should have
relaxed,
it
been made, but the paramount right having been estabpaid for his improvements. And
the claimant should neglect to
til
if
make payment,
either
lose
the
the occupant must

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
general rule that no action
could be sustained until actual evicthe
The
tion."
Law
West.
Tuite
case of Tuite
Journal,
v.
Miller,
413,
Miller, 10 Ohio, 383,)
v.
(not
was
then mentioned and approved.
In
that case, one third of the rents
and
profits of the
to
land had been set off
widow
the
for
her dower and
made a charge upon

ordered that
unless
and
was
payment was
it,
it
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
third
of
seems
to
garded.
in
the
to the local statute,
the
rents.
full
The
widow's favor
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
evident, from an examination of
these two authorities, that they were
is
decided under special circumstances.

The Supreme Court seem to have
of one
determined, owing to the apparent

disregard of the provisions of the
statute
local
have been entirely disreTrue, a decree was made
plaintiff for $137.50,
be in
"
mere personal debt to be enforced

by execution. ... It had no operation to incumber the land.
Had the
one third part of the land been set
off by metes and bounds, and the
widow put in possession, or had
dower been assigned according to
against
which was
the
to
of dower.
This, however,
a charge upon the
was not made

laud, and could in no shape act as
an incumbrance upon it. It was a
statute as to dower, by the

Court which had pronounced the decree, that no recovery should be had
under these circumstances upon any

of the covenants for
end, the case of
very
title.
Nyce
far.
p. 158.
v.
With
this
Obertz went
88
amount of damages is equitably adjusted with1

Such cases, however, it must
making this essential.
be observed, are exceptional, and occur, perhaps, only when
all the
parties to the title are before the court, and their
lished, the
out
respective rights are capable of equitable adjustment.

But, it may be asked, what then is the practical distinc-
between a covenant of warranty, and a covenant for

seizin or against incumbrances 1
tion
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.
or is not asserted, and
The
if
question whether the claim is

what extent, has noth-
asserted, to
ing to do with the right of action

such claim exists.
it
is
sufficient that
But under the covenant of warranty, as usually expressed, it must not be supposed that a purchaser can, as
a general rule, buy in any paramount claim, and elect to
consider hifaself evicted to the extent of the
purchase-
money
However
of such claim.
far the doctrine of con-
may be supposed to have been carried, it

believed to be still absolutely necessary that the adverse
structive eviction
is
claim should have been hostilely asserted.

It is not necesthat
the
assertion
should
be
made
a
sary
judgment or
by
even a suit, any more than it is necessary that an eviction,
when
actual, should be
under legal process. 2
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.
i
See supra,
According, therefore, to the weight of authority

p. 158,
and
infra,
Chapter XIII.
See supra, pp. 242, 249.
289
at the present day, the distinction is not whether there has

in favor of the paramount
or has not been a
judgment
claim, but whether such claim has or has not been adversarily 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
made by
claim being
who,
it
was
held,
the latter, paid by the covenantee,

not, under these circumstances, en-
was
recover upon his covenant of warranty, as the

2
or threatened.
So,
possession had never been disturbed
to
titled
The
difference thus sketched be-
tween these covenants was approved

in the late case of
Funk
v.
Cress-
well, 5 Clarke, (Iowa,) 89.

2
McFarlane, 3 Penn.
"If a recovery in this case
Patton
419.
warranty may either be considered

a covenant for seizin, of good
as
right to convey, of quiet
enjoyment,
of indemnity against incumbrance,

or for further assurance, as may best
suit the
wishes of the vendee.
it
livered the
" can be
when composed of Judges
opinion of the
Court,
supported without either

allegation or proof of an eviction, it
would, in effect, be deciding that the
covenant of general warranty contains within
it
each of these
five cov-
intelligence, that a general
no
contained
warranty
of
seizin,
was the inaptitude of the cove-
conceive of any defect or objection

that can be discovered which may
tions of the
either
covenant
either express or implied.

Vanderkarr v. Vanderkarr, 11 Johns. 122.
It
title,
alike dis-
tinguished for their talents and legal
which would be a
novel idea to conveyancers and professional men.
Because I cannot
enants for
But
has been decided by the Supreme

Court of the State of New York,
upon the covenant of general warranty," said Kennedy, J., who de-
nant of general warranty to accom-
modate
itself to
the various inten-
parties, as well as the
circumstances
connected
with
the
gave
rise
the possession or the

sufficiency of the title to invest the
vendee completely with the estate
titles to
professed to be conveyed, that may

not, with as much propriety as the
which repudiates the idea of their

being contained within it
Although the Commonwealth had a
claim against the land in the case
affect
present case, be embraced in and

considered as provided against by
the covenant of general warranty,
and an
of
it,
action supported for a breach

without either averring or
proving
this,
an eviction.
It
that the covenant
25
comes
to
of general
the land, that
first
to these special covenants, and recoimnended them to general use,
under consideration, yet she had

taken no step whatever, after the
conveyance of
enforce the
Whether
it
to
McFarlane,
to
payment of the money
she would have
done
so,
290
a later case, the same Court held that " until an eviction
of the grantee or a demand made of the land from him by
in
one having a better title for it, the covenant of warranty

l
could not be said to be broken,"
and, more recentlv, that
1
was uncertain, and Fatten had a

under his covenant of warranty
right
with McFarlane, to avail himself of

the indulgence that might be
all
given by delay on the part of the
payment of the mortgage by the
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
Commonwealth to proceed against

the land, to have the money collected
by a sale of it. Although it may be
of the possession is necessary to constitute a breach of these covenants.
considered certain that the payment

of the money would have been com-
are to be met with on this subject,

both in the United States and in
some
Among
the numerous cases which
other, yet it
difference to Pat-
England, I have met with none in

which a mere payment of money for
whether he was to be called

of
the purpose of buying in a paramount title or extinguishing a mort-
for payment, or to have

postponed to a distant day by forbearance on the part of the Com-
gage, has been held to be a breach

of the covenant of warranty. The
case of Sprague v. Baker, 17 Mass.
monwealth to proceed
So far, however, as
it."
586, seems to countenance this idea
ap-
to
pelled
day or
might make some

ton
immediately, at
upon
the will
McFarlane,
it
Waldron
proved
Johns. 417,
v.
to collect
this
case
McCarty,
should be observed
it
that that case has been
since dis-
overruled
tinctly
(Brown
v.
in Pennsylvania,
Dickerson, 2 Jones, 372,)
some extent, but even in that

whose authority has been much
case,
questioned, the
for possession."
The decision
in Caldwell v. Bower, 17 Missouri,
suit
as well as elsewhere, (see supra, p.
568,
270,) and would not be recognized

as law at the present day in New
not,
York
Hunt
Amidon, 4
v.
Hill,
349
Fowler v. Poling, 6 Barbour's S. C.

So in a recent case in Mis168.
souri,
Pease, 10 Missouri,
was said, " The covenant de-
Shelton
482, it
clared on
the
to
warrant and defend
and possession against

and especially against the
title
liens,
is
v.
all
in-
rimihrance specified in the deed.

There is no covenant that the grantor
will pay oil' the mortgage, nor is any
such covenant implied by the covenant of general warranty. Nor is
payment of the mort-
gage was made under threats of a
is
to the
however,
same
It
effect.
necessary
to
was
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

It has been virtually
questioned.
overruled in Massachusetts on an-
other and totally different point,
viz.,
the capacity of the covenant against

incumbrances for running with (In-
land
1
&
see infra, Chapter VIII.
Dickerson
v.
Voorhees,
Serg. (Pa.) 409.
Watts
291
" there must be

proof at least of an involuntary loss of
in a recent case in New York, land, of
So,
possession."
which a part had been returned to the comptroller and sold
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
by him
and thereby redeemed the land, and

It was held, however,
then brought suit on his covenant.
by the Court below, that the action could not be maintained,
taxes, with charges, &c.,
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
2
A different
defendant, and charge him with such payment.
1
Dobbins
this case
S. C. 5 Paige, 620,
Partridge, 8 Durn. &
These cases
East, 308, are cited.
v. Lord, 19 Barbour's
"
(N. Y.) 18.
Upon principle,"
said Greene, J., who delivered the
" this seems a
opinion,
very clear
all distinguishable from the case

under consideration by peculiar facts
existing in each case upon which the
judgment of the Court was clearly
v.
Brown,
Penn. State R.)
2 Jones, (12
See
79.
noticed infra, p. 295.

2
McCoy
S. C.
The
case.
purchased
plaintiffs
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
broken.
there
no pretence that
But
it
is
it
has been
supposed
that
in
the peculiar
circumstances of this case from which
is
something
the plain tilFs derived a right to pay

the money in question, and charge
the defendant with
And
4 Hill, 345,
it
in this action.
Hunt v. Amidon,
McCrea v. Purmort, 16
the cases of
Wendell, 460,
and Exall
v.
are
founded.
which
is
of the
all.
last
It
them
two
is
cases, unnecessary in
that none of
sufficient
afford
The
action.
quiet
This fact renders criticism,

precluded by the authority
any authority
plaintiffs'
enjoyment
has
for this
covenant for
never
broken, for the reason that
never was any eviction.
been
there
They were
not compelled by legal process to

pay, as was the case in Hunt v. Ami-
don and Exall v. Partridge. And

had no covenant against incumbrances, they had no right to
pay them voluntarily and without
any request on the part of the defendant, and charge him with such
payment. It is no answer to say
as they

rule might, however, apply in the case of a covenant for
quiet enjoyment, expressed as is usual in English
conveyhas been held that

where the covenant was one of non-claim, 2 " the purchaser
was not bound to wait until such measures were taken to
1
and
ances,
a recent case
in
in
Maine,
it
deprive him of possession, when his remedy against the defendant might be fruitless."
So, where in Iowa there is a
'
statutory form of a covenant of warranty which

would be a hardship for
to be compelled to wait
plaintiffs
til they were evicted, and then
for the purchase-money and lose
enhanced value of the land and
that
it
But
provements.
for the
the
unsue
the
im-
covenant
incumbrances, he, as grantee, might

remove them, and resort to the covenant of his warrantor in an action
for indemnification."
"
mon
covenant
sistent
desired a
in
remedy adequate
to other
contingencies, they should have provided for it by appropriate cove-
These covenants have been
nants.
If "the com-
here referred to be
the ordinary covenant of warranty

as expressed supra, p. 224, then
these remarks are apparently incon-
enjoyment they could not

even recover the purchase-money in
a case free from fraud and if they
for quiet
consid-
is
with the course of decision

Pennsylvania and New York, no-
But
ticed in the text.
if
the cove-
nant be indeed a warranty against

incumbrances, the case would, it is
long in use, and the rights and remedies of parties under them have been
apprehended,
long and well settled; and
case itself was simply one of a mortgage given by the defendant to one
sufficient
answer
it
to this action,
such circumstances, that there
precedent for
i
That
under
is no
say, that
the
chaser shall enjoy without any

suit, &c.,
and
it."
to
is
is
that free
from
purlet,
all in-
cumbrances, &c., supra, p. 109, &c.

Such was the form of the covenant
Hall
in
v.
Dean, 13 Johns. 105,
where it was held that the purchaser

was entitled to recover the amount
he had voluntarily paid to extin<_mi>h
the incumbrance.
Sire supra,
p. 222.
Cole
Lee, 30 Maine, 392.

"
" as
But," continued the Court,
under a deed containing tin- comv.
mon covenant
of warranty against
fall
within the distinc-
tion noticed supra, in note
1.
The
Nickerson, and a subsequent mort-
gage by the former to the plaintiff

with a covenant of warranty, which
latter mortgage was afterwards extinguished by a quitclaim deed from
the defendant to the plaintiff, containing 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
right or title to the
Tin- plaintiff bought in tin-
any
son mortgage and took an assignment of it, and it was lu-Id. in a suit
upon the covenant,

tled to
him.
recover
tin-
that
IK-
\\as enti-
amount paid by

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,
pay the same, and recover the

1
on the covenant.
amount
his grantee
might
so paid, in an action
In the preceding classes of cases which have

thus been attempted to be considered, the loss for which the
Fourth.
benefit of the covenant
land
itself,
or of
But
ment.
was invoked, has been
some corporeal right
that of the
incident to
in case the subject of the loss
its
enjoy-
has been an in-
to the land, or somecorporeal right annexed or incident

of the land,
thing which represented, or stood in the place
there have been at least two decisions to the effect that such
is not within the scope of a covenant of warranty.
In the case of Mitchell v. Warner, decided in Connect-
a loss
2
18&5, a tract of land through which ran a stream
of water was conveyed to a purchaser with a covenant of
warranty, and the water having been, under paramount
icut, in
title,
diverted from the land,
was not broken,
it
was held
that the covenant
by the existence of the paramount

and diversion of the water in
right, or by the actual entry
But
it
of
it.
may be observed of this decision,
pursuance
either
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 hereditaments, yet the Court proceeded upon the distinction that
these authorities could not have meant to include incorpohereditaments which were not tenements, and
real
said that water,
and a right
to
it
draw water, were indeed
was
in-
corporeal hereditaments, but not tenements, as not being of

Such a distinction was not, however,
a permanent nature.
l
Funk
v.
Oesswcll, 5 Clarke, (Iowa,) 91.
25*
2 5
Connect. 497.
294
taken in the authorities thus cited, 1 and seems open to much

" if a man
objection ; for it is elementary law that
grants
all his lands, he
grants thereby all his mines of metals and
other fossils, his woods, his waters and his houses, as well
and meadows, and by the name of land, which
as his fields
nomen generalissimum^ everything terrestrial shall pass," 2

and it would seem natural to suppose that when a warranty
accompanied such a grant, its scope was co-extensive with
is
the subject-matter. 3
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
plaintiff,
in
water of the stream. 4
Co. Litt. 46, 48, 388, 389 ; Touch184; 2 Black. Comm. 18;
Bally
v.
v.
Ricroft, 1 Saunders,
Wells, 3 Wilson, 26.
322
"If
he that hath a rent, common, or any

profit out of the land in tail, disseize
and make a
and warrant
and his heirs,
the tenant of the land

feoff'ment of the land,
the land to the feoffee
regularly the warranty doth extend

to all things issuing out of the land,
that
is
warrant the land
to say, to
in
such plight and manner as it was at

the hand of the feofFor at the time
of the feoffme nt with warrantie, and
the feoffee shall vouch as of lands
discharged of the rent, &c., at the

"
time of the feoffmen t made
Co.
;
Litt.
388
b.
the
an action on his grantor's covenant of warranty,
stone,
Pomfret
So where
The
passage in the
"
Touchstone is, A warranty indeed

may be annexed to estates of inher-
which issue out of lands or tenements."
Comm.
2 2
Black.
3 It
was likewise decided
18.
in
Whee-
locky. Thayer, 15 Pickering, (Mass.)

70, that the benefit of a covenant of
warranty contained in a grant of a

drawing water from a pond
right of
would not enure to a subsequent purchaser of this right, " as it could not
run with the land, as no land was
granted, and to make a covenant run
with the land it is not sufficient that
it is
of and concerning land."
a distinction
is
Such
very technical, and un-
supported by authority, and this case

and that of Mitchell v. Warner, have
been questioned
in the note to
Spen-
Smith's Leading Cases,

(5th ed.) 161. The subsequent case
in Connecticut of Griswold v. Allen,
cer's case,
itance or freehold,
and that not only

of corporeal things which pass by
livery, as houses, lands and the like,
22 Connect. 89, was decided merely

on the ground that the grant was of
but also of incorporeal things which

lie in grant, as advowsons, rents,
coextensive
commons,
estovers
and
the
like,
a limited privilege, and the covenant

4
Peters
\\ilh the
v.
grant.
Grubb, 9 Harris, (21
IV nn. State K.) 455.

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 liberty to remove the building whenever his term expired, it was
held that the mere statement of the case
argument
"
What,"
that the
the absolute
veyed,
if
the act
said,
"
is
done
in
pursuance of a
that of the grantor at the date of the deed,
constitute a
the strongest
is a more
thorough eviction than
removal or destruction of the property con-
was
it
was
removal was a breach of the covenant.
more complete breach of
superior to
title
and what would
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 plaintiff! 5J1
In the case of Dobbins

vania in 1849, 2
owner
v.
Brown, decided
in
Pennsyl-
appeared that the defendant, being the

of certain lots, executed a sealed instrument by which,
in consideration
it
of the benefit to be derived to him from
the opening of the Pennsylvania Canal

through the lots, he
that
the
of
the
Commonwealth
agreed
agents
might enter
upon, occupy and keep so much of them as should be necessary for a canal, and released all claims for damages for land
so taken.
Ten
years afterwards, he sold these lots to the

plaintiffs with a general covenant of warranty, and in the
following year, the canal was, notwithstanding the
plaintiff's
prohibition, laid out
and constructed across those
by the
one
third
Commonwealth, occupying nearly
their surface,
the
whereupon
plaintiffs brought suit on the
covenant, and at the trial obtained, under the charge of the
lots,
authority of the
123
West
;
to the
v. Stewart, 7 Barr,
(Penn.)
there had been a prior decision
same
effect in
Kentucky, with
respect to the removal of a log cabin,

Combes v. Fisher, 3 Bibb, (Ken.) 51,
and
see accord. Mott v. Palmer, 1

Comstock, (N. Y.) 527, cited tupra,
p. 53.
2 2
Jones, (12 Penn. State R.) 75.
96
Court below, a verdict

1
But
for about
one third of the consid-
judgment was reversed by the

on
the
grounds, first, that a covenant of
Supreme Court,
warranty does not extend to an entry by the Commonwealth
in the exercise of her right of eminent domain
secondly,
eration money.
the
had been no eviction of the land, but

an interruption of the enjoyment of an easement
that there
most
at
thirdly,
Commonwealth was no
that the defendant's release to the
being merely a release of a claim to compensation,

which could not have fallen within the ancient warranty,
eviction,
which had regard

not
fall
to things corporeal, and therefore could

within the modern covenant ; and fourthly, that the
The charge of
the Court as to
That
stitution.
right itself
may be
the right to recover, was as follows

" The
alleged breach of warranty is
the eviction by the Commonwealth
considered inherent in the government so is the right to compensa-
under a prior authority or license
warranty in the deed
given by defendant. This eviction,

it seems, is but a partial one in point
by the mere exercise of this right on

the part of the Commonwealth. But
of
fact,
thus
far.
Was
the eviction
to the prejudice of plaintiff,
warranted
against
Certainly,
but not
by defendant ?
absolutely and
without qualification.
It is true, the
Commonwealth have the

ercised
and one
right, ex-
under certain conditions, pro-
tion
in
then
the citizen.
this
right of the citizen {o re-
quire damages or compensation therefor, is so complete and extensive that

it
cannot be abridged by
The
right
by the Constitution, and there

legislative authority to take
or diminish
it is not
easy to
just compensation,
find in it even any other rights than
And
has any private citizen, except

that
it
may
exercise
the right
it
be
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 property, yet it must be understood upon

the express stipulations of the Con-
statute.
reserved to the citizen
is
vided for in the Constitution ( X.,

for without it makes
Bill of Rights)
;
This general
not broken
is
it.
warranted to
is
by
no
away
This right, then,
plaintiffs
if this right
it
is
this deed.
was released or con-
veyed and
so destroyed by the warrantor prior to his warranty to plaintiffs, it is very clear that upon the
eviction
under
it
the
covenant
is
broken, and the warrantee or covenantee is entitled to recover from his

This is most certainly
warrantor.
right
Upon
and
this
and nothing moiv.

principle we charge you
just,
the plaintiffs are entitled to recover,

if such a state of facts is shown."
297
could not pass a right of entry to the Commonwealth, inasmuch as that right was in her from the hegin-
release
nmg/
" In
England," said the Court,

warranty was superseded by a covenant of warranty,
which, in turn, seems to have givi
" the
feudal
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 convey, a covenant for quiet enjoyment,
and a covenant for further assurance for the last of which Chancel;
lor
Kent
warranty,
which
substitutes the
covenant of
retained by us, and on
still
this action is
It
brought.
has
been thought by country scriveners,

and even by members of the profession, to contain the
the rest
elements of
but the terms of
the
specific to secure
it
all
are too
grantee against
every disturbance by those who may

It binds the
have a better title.
the
defend
to
possession
grantor
against every claimant of
it
by
right
consequently a covenant
To mainagainst rightful eviction.
tain an action for a breach of it, as
and
is
it
may be
3 S.
W. &
&
seen in Clark
v.
McAnulty,
Witman, 3
R. 364, Paul v.
and in the cases
S. 407,
col-
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
" It would
of the possession.
be thought that
a covenant of warranty extends to
an entry by the authority of the
State, in the exercise of its eminent
scarce,
Like any other covenant,

must be restrained to what was supposed to be the matter in view and
no grantor, who warrants the possession, dreams that he covenants
domain.
it
against the entry of the State to

nor can
railroad or a canal
make a
it
be a sound interpretation of the
contract that would
An
make him
it.
all
the world would bind
the law
him
but
not so unreasonable as to
is
The entry
it.
imply
liable
explicit covenant against
for
of the public
and the occupancy of the

ground, were not a breach of the
agents,
warranty.
"
Nor was
it
an eviction even of
the ground taken for public use
cer-
was not a disseisin. The

entry was on the enjoyment of an
easement, which was, at most, a disturbance that left the seizin, and a
tainly
it
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-
might have been a breach

was not an eviction. In
contemplation of law, the grantee was
vasion of
of
it
still
it
but
it
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 public franchise, reserved from the be-
He might lay pipes or open

a quarry under the canal or enter
ginning.
on any other enjoyment of the soil,

that would not interfere with* the
works, or impede the navigation.
298
But
it
may be observed of this decision, which was based
most
technical grounds, that although the Commonupon
wealth's right of eminent domain is an incidental
right par-
amount
to the
enjoyment of
all
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
It would, therefore, seem
through successive ownerships.
that any release of that right in consequence of which the
land is subsequently taken by the Commonwealth without
on her part to make compensation to the owner,

has the same effect as if his vendor had granted a similar
liability
Although the entry of the Comright to a stranger.

monwealth might not have been of itself an eviction, yet
when taken
with the prior release, it would

seern that the loss of the land without compensation was
"
Was
in connection
the antecedent release of
ultimate compensation an eviction ?

An eviction of what V Of a right to
claim.
tion
Strange subject of an evicHaving been executed before
the conveyance, the release, if an

eviction of any right, was an evic-
things' corporeal,
and
differed
from
successor chiefly in regard to the

voucher to warranty and the recomits
pense in value.
fall
"
within the
It,
therefore, cannot
modern covenant,
Apart of the argument has been,
tion of the grantor's right, for the
that the release passed a right of entry to the State, as well as extin-
grantee could not be evicted of what

he had not received. The construe-
guished the compensation for it. But

the releasor could not convey a right
was subsequent to
and if there was
that was in the State from the boginning, and one that could be exer-
was not by the
cised without his consent, on the sin-
tion of the canal
the conveyance
an eviction
at
all, it
sealing of the release, but by the entry of the State, which, we have seen,
was not a disseizin within the war-
ranty.
The
release was, if possible,
gle condition
owner.
The
of compensating the
the
release forestalled
compensation, and it did no more,

It was not a breach of a subsequent
The claim to compenno more than the beneof a chance, was an ideal thing
and prospective covenant, not rvrn

against incumbrances and running
and, though of appreciable value, it

would not have lallm within the an-
by any construction, be more than a

clog on the enjoyment."
still
less so.
sation being
fit
cient warranty, which had regard to
as
it
did, with the^ land,
it
could not,
299
but the consummation or accomplishment of the vendor's

previous act, to which his covenant might reasonably be sup-
posed to have extended.

l
The
The
decision in the recent case
New
objection that the
continued in possession for more than
York, of Murray v. Jayne, 8

Barb. S. C. 612, may be referred to
twenty years, but omitted
as corroborative of the objection thus

submitted to the decision made in
quested to do
in
Dobbins v. Brown. The defendants

were commissioners under an act of
the
legislature
to
raise
money
to
drain the drowned lands in Orange

County, and had power to enter
release
damages
so.
to
have the
though
ascertained,
The
re-
plaintiff sub-
sequently purchased the farm from

the tenants in common, and the commissioners having advertised it for
sale for nonpayment of taxes, the
owners, or by an appraisement and

payment of damages in the manner
an injuncon the ground that the agreement was one which, had it been
under seal, would have been a covenant running with the -land, and as
it was one which a court of
equity
would enforce, it must be regarded as
therein provided
and in order to
raise funds for the payment of such
having passed to the plaintiff' under

his deed
and the Court held that
purchase-money, or damages, the

commissioners had authority to levy
the plaintiff was entitled to an injunction, and that the true construc-
upon and occupy such lands
as
were
necessary for the purposes of the act,

upon purchase being made from the
and
collect taxes for the lands,
and
plaintiff filed his bill for
tion,
tion of the
agreement was that the
in default of payment.
commissioners were to collect no tax-
By a subsequent act, they were authorized to open a canal or ditch, and

for that purpose, to acquire the right
es till the damages were ascertained.

" It was said
upon the argument,"
to the necessary land
damages were
personal and not real property, and
to sell
them
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 commissioners obtained the permission to
enter upon the farm and open the
canal through
it.
No damages were
appraised or ascertained, but it was

agreed that they should be, and that
the taxes which
should
the commissioners
thereafter assess
upon the
farm from time to time should be deducted therefrom, and the balance of
damages paid by the commissioners.

The latter entered upon the land and
said
Brown,
opinion,
J.,
" that
who
delivered the
the
therefore did not pass to the plainby force of the deeds of convey-
tiff'
This argument would have

had more force if the damages had
been ascertained and declared beance.
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
which they accrued would have

been, in a measure, complete, and
they would then have assumed the
to
300
would not have
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
fallen
premises and deduction, as the ancient warranty

1
And it has
many incorporeal hereditaments.
its
did extend to
been recently held that where the subject of a conveyance
and not
lay in grant
in
livery,
and was therefore insuscep-
of any other than a constructive seizin, any eviction

which might happen must consequently be of the same
tible
nature as the possession.
aspect and the attributes of personal

The entry upon the lands
estate.
and the opening of the
canal, were
on the grant of an advowson with
lie
warranty, and see supra, p. 294, note.

The ancient warranty was, moreover,
extended to many
would not formerly
not tortious acts creating a right of

action which died with the person,
or survived to the representative
before
but the entry was under an agree-
Coke
ment and license to purchase, pay for

and acquire the title at a future pe-
tend to any lease, though it be for

many thousand years, or to estates of
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
The agreement
thing granted.
exempt the lands from taxation to
.
to
the extent of the amount of the dam-
had the contract been

be a covenant running
ages, would,
under
seal,
with the land.

1
Barn.
&
Vyvyan
Cress.
v.
Arthur,
410; Vernon
v.
Smith, 5 Barn. & Aid. 1

Bally v.
And if the
Wells, 3 Wilson, 25.
agreement be such as courts of equity
;
purpose and to
must be regarded as
having passed to the plaintiff under
will enforce, for that
that extent
it
the deed."
1 Thus it will be found in the Year
Hook 43 Ed. III. 25, and
Hni.
!'
VI. 56, that a warrantia charfce
will
its
disuse,
things which
it
to embrace.
Thus
" a warrantie does not exsays
have been held
tenant by statute staple or merchant,

or elegit or any other chattel, but
only to freehold or inheritance." Co.

But the case of Pincombe
Litt. 389.
v.
Rudge, Hobart,
3,
shows that in
seventeenth century, warranty

when annexed to the assignment of
the
a leasehold was used as a personal

covenant supra, p. 208.
;
Lukens
v. Nicholson, decided in
January, 1860, in the District Court
for the city
and county of Philadel-
Legal Intelligencer, 36,)

where Hare, J., who delivered the
" This case turns in
opinion, said
phia, (17
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 reoml.
and 'the subsequent execution of a

mortgage by the assignor, can recover compensation from the latter
301
In a subsequent case in Pennsylvania, the owner of a

furnace and grist-mill had made an offer to the Commonby an action on a covenant of special warranty contained in the assignment, without any other allegation or proof of an eviction, than
that arising from a suit on the mortgage, followed by a judgment and
the sale of the
under a
rent by the sheriff
levari facias.
It is
undoubt-
edly true that such a sale is not an

actual dispossession, and that no one
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 Carondelet, 26 Missouri, 112, and these cases
also show that a warranty could not
be the less broken by an eviction resulting from the subsequent acts of
the grantor, because the
can be said to be evicted, under ordinary circumstances, until he is ac-
when
tually dispossessed. But it is equally

true, that when dispossession is im-
present case,
"
title
was good
originally granted.
Applying these principles
we
to the
find that the estate
the plaintiff has
warranted lying in grant, and not in

livery, was insusceptible of an actual
not been and could not be possessed,

proof of an actual ouster will be
or of any other than a constructive

seizin, and that any eviction which
dispensed with, and it will be enough

to show that he has been deprived of
all power or
possibility of enjoyment,
might happen, must consequently be

of the same nature as the possession.
by a default on the part of the de-
iff's
when
as
possible,
fendant, which
is,
in other respects,
And
it is
equally plain that the sher-
sale stripped the plaintiff of the

whole right and title to the rent, and
such as to amount to a breach of the
by taking away the
warranty. Thus when the warrantor

grants land which is at the time held
necessarily took with
adversely by third persons, under a

paramount title, the grantee will not
of an incorporeal hereditament. An
attornment by the tenant of the land,
to the purchaser, might perhaps have
be bound to go on the land at the

risk of an action, merely for the purpose of being turned off again, because the law will not make the performance of a vain or impossible act,
a condition precedent to the vindication of a right in other respects
perfect
Rawle on Covenants
for
The law
262, 266, (2d ed.)
so held in Curtis v. Deering, 12
Title,
was
Maine, 449, and the entry of a grantee under a deed duly recorded,
held to be a breach of a warranty
contained
in
prior
Peters
v.
unrecorded
Gubb,
26
right to possess,
it the only
possession which can exist in the case
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 adversely
not
by the purchaser, and then, and

till
ranty.
9 Harris,
(21
then, proceed on the warthose who urge this ar-
But
Penn. State
K)
455.
302

the
wealth, that if
canal commissioners would raise the
height of his dam, he would allow them a sufficient supply

gument
forget, that the sale left the
without any right to the

rent, or means of redress against the
tenant of the land out of which the
plaintiff
rent issued
while in the hands of the complainand the money brought into
ant,
court for distribution,
when
it
peared that at the time of the
apsale
that any payment to

him would have been a mispayment;
of the stores by the defendant, he

had agreed to assume the payment
which he might have
of another mortgage to one Phillipon,

which they had jointly given for a
that
any
suit
brought, or distress which he could
have levied, would have been destiand would nec-
tute of legal validity,
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-
without compensation, in attendance upon th.e pleasure of others, he

riod,
was necessarily
sue
as
soon as the sale was made, and
we
entitled
to
consequently discharge the rule to

show cause why there should not be
new trial."
The case of Kinney v. McCullough,
recently decided in New York, (1

Sandford's Ch. 11. 370,) may be here
noticed.
The defendant and one
Halsey, being the owners, as copartners, of certain valuable stores,
which
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 purchased. The mortgagee was, therefore, entitled to payment out of the surplus remaining
after the two oldest mortgages had
been satisfied, and this consumed the
whole fund leaving nothing for the
complainant, who thereupon filed a
against the defendant for pay-
bill
ment of the amount thus
lost.
His
right to a decree was sufficiently obvious, but
it
was objected, on behalf
were subject
of the defendant, that the complainant had a sufficient remedy at law
nership, sold his undivided interest

to the latter, who assumed as part of
the sale to his late partner, the benefit of which had passed to the com-
the consideration, the payment of the
"
plainant but the Court said, This
would have been the case unquestionably, if Phillipon's mortgage had
to two mortgages, the

former, at the dissolution of the part-
mortgages which were exempted from

the covenants for quiet enjoyment
which the deed contained. The purchaser then executed another mortgage
eloM-d
who
to the complainant,
it,
and
>loiv- himself.
at the sale
The
lien
fore-
been foreclosed while the complainant remained in possession, and the

complainant had been ousted there-
bought the
by.
of the prior
red.
mortgages was not devested by this

gale, and they were subsequently
foreclosed
upon the defendant's covenants on
and the property
sold again
But no such
eviction has occur-
The complainant was
turned
by a title paramount to both, but

which left to him a surplus in money,
out.
not a portion of the land,
lie ha-
303
The commissioners, without
of water to feed the canal.
a gate at the head

taking any
of the race leading to the mill and furnace, and in spite of
the owner directed the water therefrom
objection from
1
notice of this offer, erected
whenever the low
state of
water in the canal rendered this
The premises were afterwards

necessary.
covenant "to warrant and defend the same
leased, with a
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."
after the execution of the lease, the agents of the
Soon
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
It was contended that the lessors were not
closed entirely.
that the case was less
on the covenants in the lease
liable
strong than that of Dobbins

been evicted from that surplus by
Phillipon's
mortgage.
This
is
not
such a legal eviction as will sustain

an action at law upon the covenants
v.
Brown,
ment of
as the vendor there
these
damages, have any
right to resort to the covenants of

those prior to himself in the chain of
to Halsey."
support of this point, however,
title, because he had not been evicted

from the land, but from the consideration money he had received at its
learned Vice-Chancellor relied

on the earlier New York cases, which
have been already referred to as having been overruled, supra, p. 242,270;
by him. Such a result is, howmet by a numerous class of

cases, which decide that each vendor, on payment of the damages re-
and
covered against himself, is entitled to

recover them back, from any of the
in the
In
conveyance
the
if,
indeed, the broad position be
taken that an eviction, in order to

come within the scope of a covenant
of warranty must be of the land
self, it
would seem
it-
to follow that if a
sale
ever,
previous vendors within whose covenants the loss may be comprised

and although these cases may per;
series of
conveyances should be made,

each containing a general covenant
haps be more properly referred to

the principle that the first covenantor
of warranty, and the last purchaser

should be evicted by reason of a title
paramount to all of them, and should
has engaged not only to warrant and

defend the covenantee, but also his
recover damages from his immediate

vendor, the latter would not, on pay-
strict rule
assigns, yet the
application of the
referred to would prevent
so obvious a course of decision.
304
had released
his claim for damages, while in the present

case the lessees enjoyed the premises in subordination to the
l
hut the Supreme Court
rights of the Commonwealth ;
held that the covenant must be held to embrace
all
existing
Common-
antagonistical claims, whether on the part of the
that if the original entry

wealth or of private persons
of the State under the right of eminent domain had been
The charge of the Court below,

was " The covenant of
as to this,
course extended only to lawful inter-
No man
ruptions.
is
presumed
to
covenant against lawless ones, as the

tenant can protect himself against
them by actions of trespass, which
landlord could not sustain, he
the
having parted with the possession.

Nor would it be presumed that the
and paid or presumed

with
him
The
him.
entirely
be settled
exclude
to
right
to
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
landlord covenanted against any original entry by the State to make
water, and as the defendants denied

the right of the State to stop their
roads, take and use the water, or

exercise other acts of prerogative.
works,
No man
Have
is
presumed
to
contract
it
is
no more than probable
that they would guarantee against
they done so
We
it.
consider
exagainst bare possibilities without
the words quite broad
for such inpress Words. Besides,

his redress by
has
tenant
the
juries
cover the case and applicable to it,

more especially as there does not
be
claiming damages, which it is to
presumed the public will accord and
appear
to
puted
right,
had entered
and drawn off the
water after the lease was executed,
we should hold that it did not come
hended defect in the title, or pretence of right in any other person

to interrupt the tenant in the enjoyIf you believe
ment of his lease.
within the covenant for quiet enjoyment, although the same is expressed
these parties had in view the claim

of the State to interrupt the occupant in the use of the water, and
pay.
If,
then, the State
for the first time
The
strong and broad terms.
tenant would have to seek his re-
in
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
(I
i.iwn off
to
when required
for the ca-
and the damage if any, was done

John Gaiubur, the then owner,
nal,
that,
to
have been any other disno defect or appre-
made
enough
the contract with a view to
we
instruct
you that the rove-
nant for quiet enjoyment in the lease

is broad
enough to protect the truant or his assignees, ami rentier tin
1
lessors responsible for the
sustained
tion."
daman's
by reason of such interrup-
305
subsequent to the date of the lease, the case of Dobbins v.

so much relied on by the defendants, might have
Brown
ruled the case in their favor, but that the works of the
Com-
having' been erected for some years prior to the

date of the lease, and the right to use the water when nec-
monwealth
essary, claimed, and to some extent exercised, under objection

by the owner, who claimed that his was the better right
to the exclusive use of the water,
it
could not be doubted
that the covenant for quiet enjoyment

parties to protect against this claim
was intended by
on the part of the
the
Com-
monwealth. 1
be perceived that this decision was based upon the
construction to be given to the covenant under the peculiar
It will
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

breach of the covenants for title contained therein. 2
is
no
And
but for the fact of the release having been executed by the
vendor in Dobbins v. Brown, the decision in that case could
not have been considered as open to objection.
In reviewing the numerous cases upon the
subject of what
constitutes an eviction within the covenant of
warranty, it
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 propReference may be had,
erly govern the law of real estate.
therefore, not only to the intention of the parties as expressed in the conveyance which contains the covenants,
i
" If there was

error," said the
" in
submitting to the jury the
question of the intent of the parties,
Court,
no just cause
the defendants have
of
complaint,
of
this
Court,
as,
in
the
the
intent
26*
opinion
might
have
been inferred
as
matter
of
law."
2
Xhis was expressly decided in

the recent case in Pennsylvania, of
Bailey v. Miltenberger, 7 Casey, (31
Penn. State R.) 37.
306
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
and the more exactly and particularly the

covenants were expressed, the more rigid would be their
strictly confers
So far, however, from such being the pracof conveyancing in this country, it is rarely, if ever, the
case that the covenants for title which are inserted, are exconstruction.
tice
So, in some of the

pressed otherwise than very briefly.
States, long-settled usage has caused the omission of all the
covenants for
except that of warranty, which, by common practice at least, is looked upon as containing all that
1
is
necessary to assure the title to the purchaser.
Such
title,
the case in Pennsylvania, even in the larger towns,

where, except as to the form of the deed, so much of the
is
practice of English conveyancing as
is
suitable to local laws
The title is, in a case of any importance, submitted with an abstract, or at least a brief, for the opinion of
Since equity jurisdiction
counsel, and carefully examined.
prevails.
has been to a great extent conferred upon
law as
its
Courts, the
performance applies more closely, and, in

rules
the
which govern the relation of vendor and
general,
the
before
execution of the conveyance, are accupurchaser,
to specific
rately defined,
with
and are or can be readily understood.
Yet,
this, the covenant of warranty is, except in very

rare and particular instances, the common and the only
all
These remarks were quoted and
approved by Stockton,
in^
(lie
J., in deliver-
opinion of the Court in the
recent case of
Funk
Clarke, (Iowa,) 93.
v.
Cresswell, 5

covenant for
title
which the deed contains.
believed to be true of
many
other States.
807
The same is
Where such has
suggested, with
different
great deference, that technical rules, based upon a
as
these
custom of conveyancing
covenants, lose to
respects
some extent their application, and to say that " the purchaser should have protected himself by other covenants,"
become the
settled practice of a State,
it is
apply a hard rule in States where those other coveNor do such decisions reform
nants are never employed.
is to
It
the practice, and bring into use those other covenants.
it is the course of decision,
that
eventually
generally happens
and not the usage of the community which changes, and
mean time
the
the position of purchasers
is
in
unenviable.
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
That the course of decision
harm.
It
can seldom
in
last
long.
The former
generally
or to the practical difficulties to

yields either to legislation,
of
decision
leads.
such
a
course
which
It is
not meant in the application of these remarks to
advocate a general departure from established and technical

On the
rules as to the construction of covenants for title.
contrary, these rules can, in most instances, be applied with
All that it is intended to suggest is, subentire propriety.
that
ject to correction,
where the covenant of warranty
is
habitually the only covenant for title contained in conveyances, such a construction should be given to that covenant
as will rather tend to indemnify the purchaser than to pro1
tect the vendor.
i
This
may be done
without giv-
ing to the covenant of warranty the

attributes of a covenant for seizin,
But
suggested that where a vendor has sold land with a defective

it is
title,
and covenanted (according
as
the usage of the country interprets

the covenant) that he will indemnify
the purchaser against
quent thereupon,
it
decide that the latter
any
loss conse-
seems hard to
may
not,
upon
the hostile assertion of the adverse
308
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
which the particular deed is expressed. This subject is
in
considered in a subsequent chapter. 1

It may be here mentioned, 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

not broken by a deficiency in the quantity of land con-
is
veyed.
has been repeatedly said that "in an action on the

covenant of warranty, an eviction must be averred and
It
As
respects the proof, it has just been seen that

the eviction may be either actual or constructive ; and the
proved."
question then arises whether, in the pleadings, the declaclaim, quiet his title, and then be
indemnified to the extent of the
amount
reasonably and
bond fide
paid for that purpose, or that in

every case in which the very corpus
of the land has not been the subject
will
be seen that although there are
many cases which

a
strict rule,
profess to lay
and
down
to
deny this right

" unless there has been
fraud, or an
eviction," yet, there are few, if any,
which deny to the purchaser the
amount bonafide,
reasonably and necessarily paid by
branch of this subject of evic-a him to buy in the paramount title,
even where the only covenants are
tion is that of the purchaser's right
those for quiet enjoyment or of warto detain the unpaid purchase-money
of the eviction, no remedy can be

had upon such a covenant
right to set off the
by reason of a defect of
title.
Such
a right depends (except in Pennsylvania), upon the defect in question

coming within the covenants for title
he has received, and is, according to

the weight of modern authority, sanetioned to the extent to which the
ranty.
See Chapter X.
Thus an assignment of the breach
" that the defendant had not warranted and defended the premises,"
without more, is bad on general
l
demurrer; Sedgwick
r.
Hollenbark,
purchaser would be, at that time, entitled to damages upon the covenants,
This subject is attempted to be fully
defendant pleads only non
considered in a subsequent part of
Cooper
this
work, (see Chap. XIII.) where
it
Johns. 376.
turn,
an
Y.) 205.
est
the
fac-
need not In- shown

Watson, 10 Wendell, (N.
eviction
v.
When, however,
309
ration should set forth the facts intended to be relied on as
constituting the eviction, or whether an eviction itself should

In Pennsylvania, there have been several dicta
be averred.
in favor of the latter proposition.

it
Thus,
in
an early case,
was said, " there can be no breach of the covenant of
It
warranty assigned, without alleging an actual eviction.
is true that evidence of a
paramount title, and that the war-
up the possession,
rantee, in consequence, yielded
will sup-
Still, however, an actual

port such an allegation
1
ouster must be set out."
So it was subsequently said,
" I consider that an eviction must be
in all
alleged
although it
cumstances
cases,
be supported by the proof of particular cirbut it will not do to state the circumstances
may
;
must be according to their legal

For instance, an eviction might be alleged in the
effect.
declaration, but on trial, may be shown by proof of an elder
and better title than that which was transferred by the vendor, and that the vendee voluntarily, upon the demand of
themselves
the averment
him who had such

the land to him,"
better
and
averment of an eviction
another."
gave up the possession of

it was observed, "the
title,
in a later case
is
one thing, the evidence of
it
In a somewhat recent case
the King's Bench, however, the plaintiff, in suing upon a covenant in a lease that
he " should and might have, occupy and enjoy the said
in
demised premises from the said sixth day of April for and
" had not been
during the term aforesaid," averred that he
able to, and could not have,
occupy
1 Clark v.
McAnulty, 3 Serg. &
Rawle, 372.
2 In Patton v.
McFarlane, 3 Penn.
R. 419.
3 Paul v.
Witman, 3 Watts &
So, in a late case in Inwas said : " The main
Serg. 410.
diana,
it
thins
to
and enjoy the said de-
be averred
amount
is
the eviction by parmanner of evic-
the
title
tion is matter of evidence, and need

not be alleged." Reese y.McQuilkin,
7 Indiana, 450
and see Hannah v.
Henderson, 4 Indiana, 174.
;
310
mised premises, &c., during the term aforesaid,
in this, to
wit, that he, the said plaintiff, being so possessed of the said
demised premises, the said defendant afterwards, to wit,
&c., entered into the said demised premises and upon the
possession of him the said plaintiff thereof, and expelled and
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

The Chief Baron was
kept out of them by the defendant.
of opinion that a nonsuit should be entered, but
left
finally
to the jury whether the

plaintiff had gone to the premises
with a bond fide intention of taking possession, and whether
the defendant had seriously expressed, and shown by his
it
conduct, an intention that he should not have

dict
it
and a ver-
having been found for the defendant, a rule for a
new
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-
trial
dered.
In one of the Pennsylvania cases just cited,2 an analogy

was suggested from the rules of pleading as to the aver-
Hawks
Den man,
v.
"
Ellis, 367.
Orton, 5
The
" here
Adolph.
plaintiff," said
&
Lord
declares in cove-
nant, and states, as a breach, that

the defendant entered upon his pos-
and expelled and removed
session,
This
him.
is
a perfectly intelligible
might have been alleged so as to

make out a breach of covenant the
statement here is shown by the evidence to be untrue. I think that
;
there was no expulsion in law or in

fact, and that the Lord Chief Baron
even went out of
his
way
breach and other modes of breaking

llic covenant
might have been stated
the
with equal clearness
and the jury have found
liad
if
the plaintiff
thought proper to allege tlu'in.

is no evidence of the breach
Then;
as stated. -It
in
is
not necessary to say

facts of this case
what mode the
case to the jury.
in put lag
did so
I
He
however, indulgently to the

fendant.
The
to ask for
a new
2 Patton
425.
v.
plaintiff;
for the <le-
plaintiff has
no
right
trial."
McFarlane, 3 Ponn.
311
an action against the maker of a negotiable note, of

" indisnotice to the iiulorser, as to which it was said to be
ment
in
pensably necessary to aver the demand upon the drawer

and notice given of non-payment to the indorser, and this
be proved by showing that the indorser, before the note
became payable, accepted from the drawer an assignment of
may
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

It
effect."
may, however be observed of the analogy thus
suggested, that although there certainly have been some
decisions to the effect
under an averment of notice,
that
may be given of its dispensation or of due dili1

gence, yet that the law has also been held the other way ;
and there are many cases which decide that, under an averevidence
ment of
notice,
nothing but actual notice can be proved, and

it, due diligence or the like, must, if
that a dispensation of
intended to be relied
according
o to the
on,
facts.
be set forth in the pleadings
The
analogy, therefore, cannot be said to be entirely sustained, and there have been several cases on this side of the
Atlantic which have recognized as correct, an assignment of
the breach of the covenant of warranty by an averment that
3
it was caused
by a failure to obtain possession.
3 Jn
Shirley v. Fellows, 9 Porter,

(Alab.) 300;Taunton Bank v. Richardôn, 5 Pickering, (Mass.) 436;
Stewart
121
Eden,
Caines, (N. Y.)
Williams v. Matthew, 3 Cowen,
v.
'2
(N. Y.) 252.

2
v.
(Ken.) 183; Hill
v.
Varrell, 3 Green-
(Me.) 233; Blakely

Mass. 388.
leaf,
Witty y. Hightower, V2 Smedes

Marsh. 478, it was said that an
averment of "an actual ouster or

eviction, or a holding out under paramount title," was necessary. In
Day
Legge, 5 Meeson &

Welsh. 418; Carter r. Flower, 16
Fra/ior v. Ilarvie, 2 Littell,
Id. 743
Burgh
&
v.
Grant, 6
v.
Court
Chism, 10 Wheaton, 449, the

per Marshall, Ch. J., "In
said,
an action on such a covenant
it
is
undoubtedly necessary to allege substantially an eviction by title paramount, but we do not think that any
fo/mal
words are
prescribed with
312
Upon
which
the subject of the measure of

be made.
for a breach
damages
not necessary to say in terms

that the plaintiff has been evicted
the possession, custody or control of

the plaintiff, he is unable to produce
in court, for a valuable consideration
by a
therein mentioned,
this allegation is to
It is
paramount to that of the

In Banks v. Whitehead, 7 Alabama, 85, where the
breach assigned was a failure to
obtain the possession, it was said,
title
defendant."
"
Although the strictly formal course

would have been to allege an evic-
we
tion,
feel constrained to decide
and conveyed
to
bargained, sold
S. a certain
one J.
parcel of land, (describing it,) to

hold the same with the appurte-
him the said J.

and assigns forever
nances, to
his heirs
and
and in
S.,
;
and by the same, the
among
said defendant,
other things, covenanted with
and
and
that the averments here are equivalent to an actual ouster," and this
the said J.
was approved in the recent case of

Reese v. McQuillan, 7 Indiana, 451.
same premises to the said J. S., and

and assigns forever, against
the lawful claims and demands of all
In Grannis
v. Clark, 8 Cowen, (N.

the breach was similarly
Y.)
36,
laid,
and held defective only
cause
it
" be-
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 expression must not be construed to mean
that the plaintiff must set forth the
;
particulars of the
see supra, p. 183).
adversary
title
precedent for a declaration

when the breach is caused by a
failure to obtain the possession, will
53.
The
5 Wentworth's Pleading,
following form of a decla-
ration
on a covenant of warranty
given
by
Professor
is
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, heretofore, to wit, on the
day of
his deed, by him duly
acknowledged ;md recorded, which deed, not being in
,
by
executed,
his heirs
as-
defend the
his heirs
And
persons.
the said J. S. after-
wards, on the same day, lawfully

entered into said premises, and by
virtue of said deed
seized of the
same
became lawfully
and being so
;
seized, the said J. S. afterwards, to
on the
by
day of
by him duly executed, ac"
(it is,
knowledged and recorded
wit,
his deed,
in general, necessary that these as-
signments should be specially averred Williams v. Weatherbee, 1 Aik;
be found
S.,
warrant and
to
signs,
(Verm.) 233 see Beardsley v.

and see
Knight, 4 Vermont, 471
ens,
Chapter VIII.)
infra,
"and now
here by the plaintiff produced in

court, for a valuable
therein
consideration
mentioned, bargained, sold
and conveyed the
said premises to
the plaintiff, to hold the same with

the appurtenances to the plaintiff,
his heirs and assigns forever;
by force of which deed the plain (ill',
afterwards and the same day, lawfully entered into the same prem-
and
ises,
and became
thereof accordingly.
lawfully seized
But the plain-
313
1
of the covenants for quiet enjoyment and of warranty, there
in the different
is a
great conflict of authority and practice
In
States.
many
of them, these covenants are treated as a
substitute for the old warranty,
w arrant
i<t
flu/rice or
upon w hich,
in an action of
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

ern covenants is still measured by the same standard.
mod-
But
in other States, they are regarded as covenants of indemnification, whose object, therefore, is to compensate the party
for his actual loss at the time of their breach.

It is scarcely
law
necessary to repeat what was the commonthe obligation of warranty was implied
When
rule.
by tenure, the lord gave
to
his vassal, in case of eviction,
whose measure was computed as

Nor was the rule altered by the
3
introduction of express warranties, as they went no farther
than the warranty whose place they supplied, and from the
other lands of equal value,
at the time of donation.
tiff
in fact says, that the said defend-
Of
course the above assignment of

is adapted only to the
ant has not warranted and defended
the breach
the said premises to the plaintiff, as
first
by
his said
covenant he was bound
on the contrary, the plaintiff avers that one E. F., lawfully

claiming the same premises by an
to do, but,
elder and better title, afterwards, by

the consideration of the Justices of
Court, begun and holden

(here describe the terra, &c.,) recovered judgment against the plaintiff
the
of the classes of eviction referred
to supra,
p.
drawn
rately
there
is
As
respects this subject, there
tory
and
still
thereof evicted the

lawfully holds
plaintiff,
him out of the same."

27
is
between
these covenants, nor does it seem
that any has ever been taken.
2
and
3 Za-
27, 1847.
writ of execution duly issued upon

said judgment, the said E. F. lawfully entered into said premises,
Denman,
ration being in the form of a petition.

Digest of 1851, p. 492 ; Act of Dec.
no difference
v.
In Georgia,
(N. J.) 260.
a statutory form, the decla-
and possession of said

premises, and for his costs and afterwards, to wit, on the
day of
under and by virtue of a
for his seizin
declaration
found in Carter
briskie,
Another elabowill be
242.
in principle
1 Reeves's HisGodbolt, 151

of the Common Law, 448,
;
supra, p. 59.
3
Gilbert's
supra, p. 59.
Tenures,
124.
See
314<
absence of authority at the close of the seventeenth century

and since that time, it may fairly be inferred that in England the introduction of the covenants
no change
in this rule.
now
in use
worked
In this country, however, the rapid advance of improvement and the comparative insecurity of titles gave the
at an early day, and it will be found
question importance
discussed among the very first of our reported cases.
In some States, it was held that the damages should be
measured by the value of the land

veyance, and, in others, by
eviction.
the
The
common
at the time of the con-
value at the time of the
its
position was supported by analogy to

the danger of introducing a less simand
law,
first
and the latter by the usage of the particular provple rule,

ince or State, and sometimes, by reference to the civil law.
The
cases in support of the last position, being less

ous, will be the first referred to.
The
earliest authority
appears to be Horsford
v.
numer-
Wright,
the second case reported in Connecticut, where Law, Ch. J.,

" The constant rule of this Court has been to ascertain
said,
at the time of the eviction,
damages by the value of the land
though the British rule is to give the consideration of the

The diversity in this respect is undoubtedly founded
deed.
permanent worth of their lands as an old country, and

the increasing worth of ours as a new country, and it is supposed that the purchaser goes on, improves, and makes the
in the
land better
till
he
is
evicted,"
1 It would
appear from the case of
Lewis v. Campbell, 8 Taunton, 728,
which was an action brought upon
a covenant for quiet enjoyment,
that no cases in point had been decided, since none were cited by the
" I
counsel, and Dallas, Ch. J., said
much
doubt
whether
in
very
any
:
and " immemorial usage
in
case a plaintiff can recover for the
improvements and buildings he may

choose to make and erect upon the
but I am of opinion thai
they cannot be recovered in this
case, as the declaration in insuililands;
cient."
2
Kirby's Rep. 3, decided in 1786.
315

Connecticut
"
was afterwards
said to be the foundation of

1
this rule,
So
in
which has always been adhered to there.

"
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

4
which Parsons, Ch.
v. Brazier, decided in 1807,
Gore
endeavored to found the practice upon English authorthat however convenient and proper the feudal
ity, saying,
rule might have been, yet "when lands were aliened for
J.,
money, when improvements and agriculture became an imalienor might

portant object of public policy, and when the
have no other lands to render a recompense in value,
came expedient
that another
eviction should be allowed.
remedy
And
it
for the purchaser
it is
be-
on
certain that before
the emigration of our ancestors, the tenant, on being law-
paramount, might maintain a personal action of covenant broken on a real covenant of war-
by a
fully ousted
title
5
The authorities, however, cited in support of
ranty."
6
these remarks, give no different rule of damages from that
The decision in
which existed before at the common law.
" conformable to
Massachusetts, was, however, said to be
to personal covenants broken, to
principles of law applied
the ancient usages of the State, and the decision of our
7
predecessors supported by the practice of the legislature,"
and its authority has been consistently followed in that
State.
1
Peet,
t?.
Sterling
14
Connect.
245.
Drury
Slmmway, D. Chipman's Rep. Ill; Park v. Bates, 12
Vermont, 887.
3 Cushman v.
Blanchard, 2 Green1
v.
leaf,
But see supra, p.

i Brownlow, 21
268
Hardy
4 3
Swett
v.
v.
Patrick, 12 Maine,
Id. 525.
Nelson, 27
Mass. 523.
Some
212.
2 Id. 164.
of these decisions are re-
ferred to in the opinion, but are not
be found reported.
Caswell v. Wendell, 4 Mass. 108 ;
Bigelow v. Jones, Id. 512 (and, not-
to
withstanding an apparent decision to

the contrary, in Sumner v. Williams,
316
In Louisiana, the principle of the
civil
law
is
of course
adopted.
8 Id. 221, by) Norton
2 Metcalf, 516, White
3 Id. 89.
In Sumner
action was
the
on
v.
Babcock,
v.
Whitney,
Williams
v.
the covenants
of right to convey,
seizin,
against incumbrances, and of warThe Court refused to assess
ranty.
for
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

" covenants broken at the time
upon
of the execution of the deed
"
;
though,
"
after, it is said,
Morehad been commenced on covenants which respect

the title, there is no doubt the measure of damages would have been the
immediately
of the original sale, would be to reand carry into effect the entire
store
provisions of the article of the Code

the legislature in-
of 1808, which
But
to suppress and repeal.
the Court never had a doubt that
tended
the damages, intended by the law, in

cases of eviction, are something over
and above
it
mean
the. original price, nor did

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, on the
over, if the action
contrary, 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
purchase-money with interest."

l Bissell v.
Erwin, 13 Louis. 148.
"The District Court erred," said
to in the
Host, J., who delivered the opinion,

" in
rejecting the evidence offered
by the plaintiffs to prove the in-
and it was generally believed,

;
justly or not we do not pretend to
say, that there was no exception to
former decision, provided

that the increase of value was in all
cases to be paid to the person evict-
ed
however enormous the
crease in value of the property, at
that rule,
the time of eviction.
crease might be, and from whatever

causes it arose.
Such is the inter-
damages on a warranty.
This is an error into which many
members of the bar have fallen, and
it arises from some inaccuracies in
lar
In doing so, it
assumed that no part of that increase
could be taken into consideration, in
assessing
the printing of the opinion of this

Court, in the case of Morris v. Abat
et
al.,
9 Louis.
Rep. 552.
The Court
there held that a bond fide 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
in-
pretation given by Toullier to a simiprovision in the French Code.
Toullier on Obligations.
" The
who
jurisconsults
prepared
Code of 1825, have adopted

Toullier's opinion, and the article
was suppressed at their recommenthe
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 ilauiMvres assessed on a
warranty, but such increase only as

The
cases which support the
317
much
opposite rule are
more numerous.
the parties 'could have in contemplation at the time of the contract, ought
be taken into account, and the

vendor should not be made to pay
the increase which results from unforeseen events, or from accidental
to
Duinoulin, de
eo quod, interest, No. 57, and folPothier on Obligations, No.
lowing.
or transient causes.
6 ToulIbid., Vente, No. 133

on Obligations, 285 Troplong
de la Vente, No. 506."
The Revised Code of 1838, which,
104
lier
as to this, has adopted the provisions

of the Code of 1825, is as follows
lect of the
buyer, or by any providential 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 buyer, 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 estimated in favor of the owner who

evicts him.
ART. 2485.
The
seller is
to reimburse, or cause to
bound
be reim-
ART. 2481.
Even in case of stipulation of no warranty, the seller, in
bursed to the buyer, by the person

who evicts him, all useful improvements made by him on the premises.
case of eviction, is liable to a restitution of the price, unless the buyer
ingly
was aware
at the time of the sale of
the danger of the eviction
chased at his peril and
risk.
When
ART. 2482.
and pur-
ART.
2486.
If the seller
and dishonestly has
know-
sold the
property of another person, he shall

to reimburse to the buyer
be obliged
expenses, even those of the embellishments of luxury that the buyer
all
there
is
promise of
warranty or when no
was made on that subject,
has been at in improving the prem-
stipulation
ises.
the buyer be evicted he has a right

to claim against the seller,
If only a part of the

ART. 2487.
thing sold be evicted, and it be of
such consequence relatively to the
if
1.
The
2.
That of the
restitution of the price
when he is
the owner who
3.
of revenues,
obliged to return them to
fruits
evicts
him
All the costs occasioned either
warranty on the part

of the buyer, or by that brought by
by the
suit of
the original plaintiff;

4. In fine, the
damages,
when he
ha< su Herod 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 ncg-
27*
whole that the buyer would not have

purchased it without the part which
is evicted, he may have the sale cancelled.
ART. 2488.
Not only eviction
from part of the thing sold, but eviction from that which proceeds from
included in the warranty. Such
would be the eviction from the child
it, is
of a slave, after the death of the
mother.
ART. 2489.
But
if
the
thing
be succession rights, the eviction

which the buyer might suffer from
sold
318
In South Carolina, the law was at
Some
first unsettled.
early cases adopted the rule which has just been referred
1
to, but this was soon after departed from, and the meas-
ure of damages limited by the consideration-money. 2

By a
3
"
it
in
is declared,
that,
statute, moreover,
any action or
law or
at
suit
reimbursement or damages
in equity for a
upon covenant or otherwise, the true measure of damages
the property of the succession, does

not give rise to the warranty, be-
non possideat aedificium vel servum,

ex empto habebit actionem in omnibus tamen his casibus, si sciens
cause in this case the thing sold is

only the succession right, which in-
quis alienum vendiderit, omnimodo

teneri debet."
See also 1 Doniat,
cludes only such things as belong

really to the succession.
part
any particular thing found among
ART. 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
buyer according
its
to the
estimate, pro-
book
1,
1, tit. 2,
Dom.
Cushing's
15, 16, 17;
For the
233.
Scotch law, see 1 Erskine's

of Scotland, book 2, tit. 3,
Law
13.
"Absolute warrandice in case of

eviction affords an action to the disfor
mak-
that he shall
have
ponee against the disponor,
portion ably to the total price of the
ing up to him
sale."
suffered through the
all
defect of the
rule of the civil law (which,

to afford in every
right, and not simply for his indemnification by the disponor's return-
case a full compensation to the party
ing the price to him," &c. Also Dic" Wartionary of Scotch Law, tit.
randice."
See passim, Sedgwick on
The
in
its
endeavor
injured, necessarily was in many instances arbitrary and unsettled, and

which as to warranty recognized no
distinction between real and personal
property,) may be found in the Digest,
xix.
lib.
tius
45
videbatur;
"
Illud expedimihi alienam areain
tit. 1,
si
vendideris, et in earn ego aedifkavero,

atque ita earn dominus evincit nam,
:
quia possum petentem (dominum),

nisi
impensam
doli
aedificiorum
solvat,
exceptione summovere,
magis est ut ea res ad periculuin
rriali
non pcrtiueat. Quod et

in servo dicendum est, si in servitutem, non in libertatein evinceretur,
venditoris
ut
dominus mercedes
prajstare
debeat.
et
Quod
imjirn-as
si
emptor
Damages, Ch. VI.

1
Liber
Car.)
265
19
v.
;
Parsons,
Guerard
v.
Bay, (S.
Rivers, Id.
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 o. Collins, 2
Nott
& McCord,
189
as also llon-
Brevard, 458
Wallace v. Talbot, 1 McCord, 468
Ware v. Weathnall, 2 Id. 413 Earle
ning
v.
Withers,
v.
Cheves's Rep.
Mtddleton,
and Pierson
v.
Davis,
I\K
127
37.
3
Stat. 17th
Mullm,
December, 1824,
1.
ji
319
be the amount of the purchase-money at the time of

1
the alienation with legal interest/ but it has been said that
sluill
was
the rule of law
settled long before its enactment.

2
New
Jersey, a decision at Nisi Prius, allowed the

evidence of his improvements, in order to
plaintiff to give
3
increase his damages, but in subsequent cases every allow-
So, in
ance for improvements has been rejected.

So, in Virginia, there was an early case
to the
same
New
England, but it was subsequently

6
the subject was
v. Jackson,
it
held
that
the safer rule of
and
was
elaborately examined,
damages was to measure them by the value at the time of
effect
as those in
departed from.
In Stout
the conveyance, and this was considered as finally settled

7
by the subsequent case of Threlkeld v. Fitzhugh.
8
So, in Tennessee, an early case left this question unde9

termined ; but by recent authorities it may be said to be
now
settled.
The
measure of damages on the covenants

for quiet enjoyment and of warranty is limited
by the consideration money and interest, may be said to be now settled
rule that the
law in the States of

i
Earle
v.
New
10
Hampshire,
Middleton, Cheves's Rep.
127.
a
Hulse
White, Coxe's
v.
Rep.
Stewart
v.
Drake, 4 Halsted,
Sinnickson, 2 Green,
Holmes
v.
313
Morris
v.
304
Rowan, 2 Harrison,
and see supra, p. 103.
Mills
Nelson
v.
Matthews, 2 Hen.
&
Munf. 164.
6
Randolph, 132;
Coalter, J.,
dissented,
7
2 Leigh, 463.
v.
Thompson, 4 Humph-
Shaw
v.
Wilkins, 8 Id.
In Loomis
o.
Bedel, UN.
Hamp.
was considered to be as
yet unsettled, and in Wilson r. Cochran, 14 Id. 399, the Court said, "We
are not aware of any decision which
matter authoritatively in
But in the more recent
case of Willson v. Willson, 5 Foster,
this State."
236, the subject was carefully conand the damages fixed by the
sidercd,
See
also
Jackson
Turner, 5 Leigh, 119; Haffert's

Heirs v. Burchetts, 11 Id. 88.
May
New
87, the rule
consideration-money.
v.
11
settles the
Bell, 3 Call, 277.

v.
101
York,
647.
1
1 73.
142
9 Elliot v.
ries,
New
Wrights,
Overton, 385.
50
Bennett
Kelly
v.
v.
Jenkins, 13 Johns.
of
The Dutch Church
Schenectady, 2 Hill, 116
Kiimey
v.
320

1
Ohio,
Virginia,
Jersey, Pennsylvania,
Watts, 14 Wendell, 40; Peters
v.
Mr. Sedgwick (Damages, 168,) mentions that
McKeon, 4 Denio,
550.
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
North Carolina, 3
607, edition of 1841.
former statutes on
There were
which
this subject
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
Dickerson, 2 Jones,
the effect of forcing the real owner

to a speedy assertion and proof of his
superior title, since few men would
Bender v. Fromberger, 4 Dallas,

King v. Pyle, 8 Serg. & Rawle,
166 McClure v. Gamble, 3 Casey,
(27 Penn. State R.) 288; Cox v.
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-
provision was not finally
that the
adopted.
1
372
441
Brown
v.
Henry, 8 Casey, (32 Penn. State R.)

See an elaborate argument in
19.
McClowry v. Croghan, ,1 Grant,
(Penn.) 307, as to the measure of
damages for a breach of contract to

lease, which the Court held could
not be measured by the value of the
must be limited to the
consideration agreed to be paid.
2
King y. Kerr, 5 Ohio, 154 Foote
Clark v. Parr,
v. Burnett, 10 Id. 317
contract, but
In this State a statute,

"
10th
1831, called The
March,
passed
occupying claimant act," provides
14 Id. 118.
claimants, being in
title
quiet possession of lands under
from some public office, or deed duly
that occupying
authenticated and recorded, or under

or sale by order of Court,
&c., shall not be evicted or turned
out of possession by any person who
a tax
title,
shall set
up and prove an adverse
and better
title,
until the
occupying
cordance with the principle of this

but is not entirely free from
statute,
inconvenience in
Tomlinson
Bright
v.
v.
its
application.
Boyd,
See
378;
Story, 478,494;
Smith,
Finch,
779 b,
799 a,
2 Story's Eq. Jur.
1237 to 1239 Green v. Biddle, 8
Wheaton, 77 Patrick v. Marshalls, 2
;
Bibb, (Ken.) 45; Craig v. Martin,

3 J. J. Marshall, (Ken.) 55 Morton
;
Ridgway, Id. 257; Barlow v. Bell,

1
A. K. Marshall, (Ken.) 246;
Grimes ?>. Shrieve, 6 Monroe, (Ken.)
v.
557; Richardson v. McKinson, Litt.

Sel. Ca. (Ken.) 320 Moore v. Cable,
;
Johns. Ch. 385
Id. 26
Putnam
u.
Green
v.
Winter,
Ritchie, 6 Paige,
these authorities
(N. Y.) 390. For

am indebted to the note to page
1029 of Mr. Perkins's edition of
^Bugden on Vendors.) It was once

said at the bar of the Irish Court of
Chancery to be "a common equity
improve the right owner out of
claimant shall be paid the value of
to
and permanent improvements made, &c. unless the occupy-
the possession of his estate."

3
Philips v. Smith, 1 Car. Law Re-
ing claimant shall refuse to pay the

value of the land without the im-
pos.
all
lasting
provements,
by the suc-
475; Williams v. Beeman, 2

Devereux, 483 Nesbit v. Brown, 1
Devereux, Ch. 30. This case went
Statutes of Ohio,
so far in support of the principle, that
if (liMiiuiidcd
cessful claimant.

South Carolina, Georgia, 1 Kentucky, 2 Indiana, 3 Tennessee,
5
6
7
4
and such
Arkansas, Missouri, Iowa, and Wisconsin
a rule has also been adopted by the Supreme Court of the
;
United States. 8
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,
Union
it
conclusively settled in every State in the
is
which the subject has been discussed, that the

are
to be measured
damages
by the value of the land at
the time of its alienation, which is established primd facie
in
by the consideration named
We
in the conveyance.
may
rule be so generally and rigidly

adhered to as to one of the covenants for title, has a differ-
then inquire why,
if this
ent one been anywhere established as to another ; since all

the arguments drawn from the civil law in favor of recom5
on an agreement that in case of eviction the covenantee should recover
166
twice the consideration-money and all

Court held this a penalty,
28
costs, the
Davis
where
an elaborate opinion by
In Martin v. Atkinson,
Nesbit, J.
7
the
contract was execuGeorgia,
" bond
tory as to one of the lots, a
"
for titles
only having been given.
Tin-re were also express representations made by the vendor that he
would pay for improvements.
2
is
Stnxle's Heirs
Bibb, 279
Hanson
v.
Booker
Stewart
v.
v.
Swafford
v.
Young
Blossom
Desire, 23 Missouri,
Id. 437.
Matthew,
Noble,
v.
G. Greene,
Whipple,
3
Knox,
v.
3 Id. 263.
Chandler,
295.
Smith, 5 Georgia, 285,
v.
and that only the purchase-money

could be recovered.
Dickson
v.
v.
Cox's Heirs, 2
Bell, 3 Id. 175
Buckner's
Executor, 4
8
Hopkins v. Lee, 6 Wheaton, 118.
There are many other authorities
cited
269,
in
Greenleaf's Evidence,
Kent's
Commentaries, 471,
and Sedgwick on Damages, 175,

supporting this position
but
as
many of
these (as well as some cited in Davis

Smith, 5 Georgia, 274,) are not
based upon covenants for quiet env.
joyment or of warranty, but upon tlie

covenant for seizin, respecting which
there has not been for many years
Dana, 453; Pence v. Duval, 9 B.

Monroe, 49.
3 Reese v.
McQuilkin, 7 Indiana,
United States as to the measure of
450.
cited in Davis
Logan
v.
Moulder,
Pike, 323.
the least conflict of authority in the
damages.
Some
v.
of the authorities
Smith, are, more-
over, cases of executory contracts.
322
pensing 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
to be estimated
damages are
by the value of
the land at the time of the breach of the covenant.
covenant for seizin is

for quiet
tion
;^
broken as soon as
enjoyment or of warranty
is
made
The
that
not broken until evic-
said, the difference of the rule.
it is
hence,
is
it
There are many reasons why
this
should be an unsatis-
In the first place, technically speaking, the

factory answer.
covenants are no more than. an expression of the intention 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
by reason of
his purchaser's
the other hand, the latter takes the
liability
improvements ; and, on
title for what it is worth
he makes, by his
contract, the purchase-money the measure of the value of
the title, and takes security by means of covenants, in that
amount and no more. 1
at the time;
If then
we
turn to what some of
the decisions call the equitable view of the case, the anomIt is hard,
aly seems striking.
they say, that a purchaser,
acting in good faith, should lose the valuable improvements
wherewith his honest labor has enriched 'the land.

indeed true, but
also in
good
faith,
parties, all acting

belief that
the
same
fide.
Here are
The vendor, with
three
the honest
a purchaser, who, with

and enhances its value,
is his, sells it to
improves it
real owner,
immediately on discoversues for and recovers his estate.
Ho\v shall
conviction,
title,
is
no reason why a vendor, acting
should pay for them.
bond
an estate
perhaps tenfold.
ing his
affords
it
This
The
the profit and loss be adjusted?

By taking, say those defrom
the
ten
vendor
times
the consideration-money
cisions,
i
Kinney
v.
Watts, 14 Wendell, (N. Y.) 41.

he received, paying
it
owner
real
retain
and reap the
value of the estate.
who
will
therehy he
in before,
and
letting the
to the purchaser,
put in the same position he was
323
benefit of all the
It is difficult to perceive
improved
the equity
of this rule, and courts of equity have not followed it.

It
that
if
in
the
real owner of an
is a familiar
equity
principle
estate invoke its aid for the recovery of the estate
from one
who, acting
good faith, has put improvements upon it,
that aid shall be given to him only upon the terms that he
in
make due compensation
such innocent person to the

extent of the benefits which will be received from those
will
to
improvements, since the party' who seeks equity must

2
be willing to do what is equitable.
There
another light
is
which
in
this
matter
first
may be
The
cases referred to speak always of improve"

But after a
ments and increased value of the property.
viewed.
property does not always

streets. that were at one time
certain advance of civilization,
In the larger cities,

the most desirable, either for business or pleasure, yield
increase.
These remarks were approved

in delivering the
Court in the very
by Woodward,
J.,
opinion of the
recent case in Pennsylvania of Hert-
zog
r.
The
Hertzog (MSS, Jan. 3, 1860).

following remarks were con-
tained in the opinion delivered in the

case of Willson v. Willson, 5 Foster,
(N.
II.) 230,
about the same time as
the text above was first written

" Let us
suppose that after a sale
the land increases in value, either by
:
or by the improveupon it by the pur-
rise in its pi-ice
ments made
chaser, a third person recovers the

land by a paramount title, and the
buyer sues the

in his deed.
He
owner alone
by the transacno mala fides

in any one of the parties, and the case
supposed is not an extreme one. It
will happen where the parties act in
good faith, and the owner happens
tion.
the consideration paid the measure

of damages, has at least the reconi-
mendation of dividing the loss between the buyer and the seller; for
the seller loses the consideration, and
the buyer loses the value of the mi-
provements."
2
&c.
seller
be ignorant of his legal

rule which makes
The other
rights.
lie recovers the value
loses nothing, the
profits
Now there may be
for a time to
on the covenant
seller
of the land at the time of the eviction.
pays for the improvement, and the
Story's
;
Eq. Jurisp.
Sugden on Vendors,
51, 52, 53, &c.
Davis
u.
799, 1237,
c. 22, sects,
See the remarks
Smith, 5 Georgia, 274.
in

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
Improvements of the most lasting and
depended upon.
permanent character may sometimes be more than counterbalanced by depreciation from other causes
or, what is a
;
much
stronger case, the purchaser's
may have
lessness
tive wilderness.
own
neglect or care-
reduced a flourishing farm to a comparaSuppose the purchaser to have received a
He can
covenant for seizin and one for quiet enjoyment.
2
sue upon either, or he is allowed, it is said, if he sue upon
If the propboth, to have judgment entered upon either.
erty is less valuable than when lie purchased it, he elects to
enter judgment upon the covenant for seizin and receives
the consideration-money, which
erty
is
judgment
is
is far
more than
the prop-
however, it has increased in value,

entered on the covenant for quiet enjoyment or
then worth.
If,
of warranty.
The
impossibility of adapting laws to suit all emergenhas been lamented by jurists of every age and country,
and it is obvious that the common-law rule as to the measure
cies
of damages on these covenants will often afford an imperThe rules of

Still it is a certain remedy.
fect remedy.
the civil law have been
instances
conflicting
"
felt
to
and as
be arbitrary and in many

Chancellor Kent has well
On
a subject of such general concern and of

remarked,
such momentary interest as the usual covenants in a con-
veyance of land, the standard for the computation of damages (whatever that standard may be), ought, at least, to be
1
"
By the
When
Louisiana Code, however,
at the time of eviction, the
thing sold has lost any of its value

or is considerably impaired, either
through the neglect of the buyer or
acts or unfore-
by any providential
seen accidents, the seller is still hound

"
to 'the restitution of the full pri
Art. 2483.
a
Supra,
Sterling?-. IV.-t,
p. 817.
1
t'oum-rt. 245.
325

certain
and notorious.
The
and the purchaser are
seller
the rule fixed.

equally interested in having
But the rule of the common law is capahle of being
mod-
or by a court of
by circumstances in a court of law,
If the vendor has made use of fraud or concealequity.
ified
ment, an action on the case
may
in the
nature of a writ of deceit
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
has taken the covenants for
ignorant, notwithstanding he
And
his protection against the defect.
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,
to an action for the
would
mesne
be set up as an equitable defence

profits,
it is
very certain that
be recognized in a court of equity.
If there
is
any
class of cases in
it
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 purchaser covenants that he will, for the purpose of securing to
the vendor the rent so reserved, erect certain stipulated im4
In such cases, the
provements upon the land conveyed.
improvement
to be erected being a thing within the
mean-
ing of the parties and one of the inducements to the contract, it would seem that if the land thus improved were
subsequently lost by reason of a defect of
1
Pitcher
v.
Livingston, 4
Johns.
21.
2
Lee v. Dean, 3
Supra, p. 64
Wharton, 316.
3 Green v.
Biddle, 8 Wheaton, 77
Lord Cawdor v. Lewis, 1 Young &
;
28
title
or incum-
Exch. 427; Bright

Story's R. 478-493.
Coll.
As
is
the case in
v.
Boyd,
many
parts
of Pennsylvania, particularly in the

cities of Philadelphia, Lancaster and
Pittsburg.
326
brance created by the vendor, the damages should, not be

1
limited 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

2
has been repeatedly
called "a nice and speculative one,"
applied to the
somewhat analogous
rule of
admeasurement of a writ of dower, and
damages upon
this is
between
a rise in value owing to improvements made by the purchaser, and an increase from other and adventitious circumstances.
3
common
law, as stated by Coke, it seems that

the wife was entitled to admeasurement of dower as against
the
By
the heir, according to the value of the land at the time of

the dower being assigned to her, whether that value was
" in the time of the

husband," and
greater or less than
But as rewhether occasioned by improvements or not.
spects a purchaser, the rule was different ; and we find in
Mr. Hargrave's note, that " if feoffee improve by buildings,
dower
yet
1
The
shall
be as
it
was
in the seizin of the
consideration in such case
being merely the rent reserved, the

loss of the land by paramount title
would be, of course, a suspension of

the rent, as in the case of landlord
and tenant.
2 Pitcher
not bound to warrant except according to the value as it was at the time
of the feoffment, and so the wife would
recover more against the feoffee than
he could recover
not
reasonable."
in value,
The
which
cases
is
cited
1.
from the Year Books appear to sustain this distinction, though not for
Year Book, Mich. 17 Hen. III.

Ab. Dower, 192);Pasch.
the reason given by Lord Hale. The

cases are these: " E., who was the
wife of 11., demands one third part of
Livingston, 4 Johns.
v.
3 Co. Litt.
4
husband." 4
32
a.
(cited Fitz.
31 Ed.
288)
I.
for
(cited Fitz.
which
this
Ab. Voucher,
reason
is
quoted
fromthe Hale MSS.: "For the heir is
;
three acres of land with the appurtenances in E., as her dower, against

In America, a further distinction
is
taken in
3*7
many
and though
of the
none of
States as regards the purchaser ;
is the wife allowed to receive any advantage hy reason of
yet there are many cases which give
in
them
improvements,
her the henefit 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
The leading case in support of this doctrine may

country.
1
be said to be Thompson v. Morrow, where the land had
first
by reason of the
and
secondly, by the rapid adpurchaser's improvements,
The case was twice elabvance of the city of Pittsburg.
received a twofold increase of value,
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 buildings to himself.
And,
therefore, she
seizin, saving the said W.

the houses built by him," &c. Mich.
"
and demand
7 Hen. III.
had her
Dower,
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
judgment if of such
he ought to be warranted and the
built the mill
case was, that in the seizin of the

husband the place was but a vacant
place.
Herle
the writ.
He might have abated
Hingham
You
ought to
have discovered the matter when you

vouched, and it was not done, for
which award," &c. Pasch. 31 Ed. I.
See also Perkins, Dower, 328.
5 Serg. & Rawle, 289.
1
It
is
true that Parsons, Ch. J., had, in the

prior case in Massachusetts, of Gore
v.
Brazier, 3 Mass. 523, used the
fol-
" If the husband

lowing language
coverture
had aliened real
during
:
commercial town, and at

death the rents are trebled from
estate in a
his
causes unconnected with any improvement in the estate, and the
widow should then sue

perhaps
it
might be
for
her dower,
difficult for
the
purchaser to maintain that one ninth

only, and not one third, should be
assigned to her ;" but this was introduced for the sake of illustration
merely, and did not form part of the

case.
328
the

Year Books, 1 and observed
that such of
them
the wife to the value of the land at the time of
as limited
its
aliena-
all cases where the

purchaser had made improve" I have found no
and
then
remarked:
ments,
adjudged case
tion
were
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.
State, it does not appear that the point now in
has
been decided, though I have certainly considquestion
ered the general understanding to be, that the widow should
In our
own
increase of value not arising from

after the alienation. Having considered
have the advantage of
all
improvements made
all the authorities which bear
upon
this question, I feel
my-
what appears to me to
of the case, which is, that the
self at liberty to decide according to
be the reason and the justice

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

The distinction
time her dower shall be assigned to her."
2
not
adhered
to
in
has
been
thus taken
only
Pennsylvania,
but has been followed almost wherever
3
has been noticed.
The Bank
of the United
Dunseth
Ohio, 76. In
the cases of Dorchester
Supra, note 4 to p. 326.

In the subsequent cases of Benner v. Evans, 3 Penn. R. 456 and
;
v. Shirtz, 5 Watts, 258.

In Massachusetts, in the case of
Powell v. The Monson and Brimfield
Shirtz
3
Manufacturing Co. 3 Mason, 865,

will be found an elaborate opinion of
Judge Story,
in
it
Thompson
also
fully
t>.
adopting the rule
Morrow, which has
been sustained in the States of
Maine, Delaware, Indiana, Kentucky

and Ohio ;Misherv.Misher, 15 Maine,
372; Greer v. Tenant, 2 Harrington,
(Del.) 336 Smith and Wife v. Addle;
man, 5 Blackford, (Ind.) 406; Taylor v. Brodrick, 1 Dana, (Ken.) 348;
v.
States, 6
New
York,
v.
Coventry,
11 Johns. 510, and Shaw v. "White,
13 Id. 179, were decided before
Thompson v. Morrow, and Chancel-
Kent, though leaving the point

undecided in Hale v. James, 6 Johns.
lor
Ch. 258, has said in his

taries,
"
The
better and
Commenmore
rea-
sonable American doctrine upon this

subject I apprehend to be, that the
improved value of the land from

which the widow is to be excluded
assignment of dower, as against
a purchaser of her husband, is that
which has arisen from the actual la-
in the
329
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 ex4 Com.
trinsic or general causes."
68.
This language, however, was
remarks,
widow
" the latter holds that the
not fully concurred with in Walker

v. Schuyler, 10 Wendell, 485, Sav-
have the benefit of improvements made by the heir, but

"
not those made by the purchaser
" on the other
while,
hand, the former declares it to be the ancient and
" Whether the

age, Ch. J., saying
Chancellor is correct or not in this
the
conclusion, I
am
not to inquire.
It
is
purpose that in this

State the widow's rights have been
my
sufficient for
frequently adjudicated under a statute like the present statute (which
had formerly been held in Humphrey 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 construction which has been given to it."
This construction,
served,
was given,
it
should be ob-
as has
been above
stated, before the case of

v.
Morrow was
decided.
Thompson
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
shall
common law
settled rule of the
that
widow takes her dower according
to the value of the land at the time
of
its
and not according
alienation,
subsequent or improved value,

though he assented to the right of
to
its
the dowress to be
allowed for in-
creased value arising from extrinsic

On examinaor general causes."
however,
whether there
it
tion,
is
may be doubted
any
conflict of au-
thority as to the rule
itself.
Each
opinion of the other with

approbation, and the only difference
cites the
of opinion seems to be as to
Judge Story,
in
Powell
v.
its
source.
The Man-
ufacturing Co., after reviewing and

approving the cases which deny to
widow the value of improvements

made by a purchaser, comes to the
the
case of Hale
of the recovery of laud against the
v. James, decided
by
Chancellor Kent, and says, " That
learned Judge went there again elab-
vendor on eviction, which on great

we have fixed at the
orately into the doctrine, and adhered

to the rule already laid down, viz.,
seems
to rest
on ground similar
to that
consideration
purchase-money
Stout
v.
with
interest,
Jackson, and Threlkeld
in
v.
See supra, p. 319.

Mr. Sedgwick, in his work on the
" Measure of
Damages," says (p.
132), that as to the point of admeasurement of dower, " some perplexity
Fitzhugh."
and the greatest authorities of

American law, Chancellor Kent and
exists,
Judge Story, are divided,"
28*
since,
he
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
and not
its
correctness) that the
" With
difference of opinion exists.
rule,
most profound respect for so

great a Judge, I must be permitted
to doubt if there be any such doctrine
the
in the
common
law," continues Judge
330
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
and
prosperity of the country ;
the learned Chfef Justice
finding the cases in the Year
Books
all
to turn
"
accordingly feels
himself at liberty to decide according to what
appears to
him the reason and the justice of the case." But although
we may approve the feeling which led to a new distinction
upon improvements,
the law in favor of such a

particular class, it may be
in
strictness
of
remarked, that,
law, what is hardship to a
in
widow
is
hardship to a purchaser
and there seems no rea-
why an evicted purchaser should not equally recover the

value to which the generally increasing
prosperity of the
son
It might be
country has raised the estate he has lost.
that
the
is
rule
a
urged
although
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 increased value from other causes, the
principles that prevail
Story, who then remarks that the
quotation from Perkins and the Hale
MSS. were both susceptible of misinterpretation.
In defence of him-
rule, its reason or its application, but

merely as to its source ; one learned
Judge being of opinion that

rived from the
common
law,
it is
de-
and the
other that the common-law authori-
Chancellor Kent, in a note to the

4th Com. p. 68, says " I am rather
of the opinion that they (the authorities) do warrant the doctrine to
do not recognize it. From the

quotations from the Year Books just
the extent the Chancellor meant to
tainly are in
self,
go, viz., that the
widow was not
to
be
benefited by improvements made by

the alienee. That position does not
seem
to be denied," &c.
There is
then no conflict of authority as to the
ties
cited, it
would appear that they cerharmony with our own
cases denying to the widow any increase in case of an alienation, and

we have the authority of Coke for
saying that in case of a descent the

rule was otherwise Co. Litt. 32 a.
;
331
be applied, and
as in most instances the value of real estate consists in its
in other cases of contract should, if possible,
as nearly as possible, be
individuality, a purchaser should,
the
placed in such a position as to enable him to go into
market and supply
his loss.
practical difficulty in the
which would occur
in
There would be, however, one
way of allowing for increased value

many cases, viz., that if improve-
from the measure of damages,

while increase of value from other causes is to be included,
ments are
to be excluded
between these, since

improvements on one place are frequently the cause of improvements on others in the neighborhood, and it would be
it
would be often
difficult to distinguish
difficult to say, after
the lapse of years, whether the rise in
was caused by the improvements in the vicinity, or

on the estate itself and Story, J., even while
those
by
value
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." 1
tt must also be
distinctly observed, that although the
cases
upon covenants
do not seem to refer particuyet their decision has almost neces-
for title
larly to this distinction,
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, 2 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.

1 Powell v.
Manufacturing Co. 3
Mason, 375.
Chapters
III.
Within
and V.

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.
See supra, pp.
72,
134
et seq.
&c.
EXTENT TO WHICH COVENANTS,
CHAPTER
333
ETC,
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-
and separate classes, those which run with the land,

and those which do not possess this capacity that, in the
tinct
former
comprised the covenants for quiet enjoyof

ment,
warranty, and for further assurance ; in the latter,
class, are
the covenants for seizin, for right to
incumbrances.
convey, and against
The common-law
doctrine of covenants running with
land, being itself an exception to another

is
attended with
many
common-law
niceties of distinction
which
it
rule,
would
be needless here to dwell upon.

I will
only attempt, thereto
notice
of
such
its
as
are
fore,
principles
applicable to the
subject of covenants for
title.
1 This is
not, however, the exact
form in which the proposition should
be stated, as all the covenants for
title run with the land until breach,
of warranty are prospective, and no

breach occurs till an eviction, actual
and the difference taken by American authority between them is, as

will be hereafter shown, that the cov-
a middle position.
or constructive.
That
to Spencer's case in
while those for quiet enjoyment and
edition
further
It is impossible to examine the

subject of covenants running with
land without experiencing the benefit
enants for seizin, for right to convey,

it would seem,
against incumbrances, are broken as soon as made
and,
for
assurance seems to hold somewhat of
to
be derived from the very able note

of
the
American
Smith's Leading Cases.
EXTENT TO WHICH COVENANTS
834<
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 choses

"
lest there should be multiplying of contention
in action,
and suits." 1 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
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
respect depended
estate.
When
was such
was very
benefit
the tenure between the covenantor
and covenantee
as to create a privity of estate between them, as

anciently the case upon every conveyance, both the
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 quid emptores abolished subinfeudation, 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 imposed any charge, burden or obligation upon the land were
held not to be incident to it, and therefore incapable of passing with
it
it
to
an assignee; thus, if the owner of land granted

a rent which the grantee cov-
in fee, reserving to himself
enanted to pay, here, though the covenant was to be performed out of the land, yet the assignee of the covenantor
would hold the land discharged from

Much advantage may also be had
from the remarks in the third Real
Property Report
Commissioners, in
somewhat
freely
commented on
in
the tenth and eleventh editions of
But on
2,
chap.
14.
British
the
liability.
Sugden on Vendors, Vol.
1832, which are
of
its
to
Lampet's case, 10 Coke, 48.

Thus the liability of an aid
pay ground-rent can only be enon strict principles, where
forced,
FOR TITLE RUN WITH LAND, ETC,

the other hand,
the land,
if
the covenant
was held
it
335
were one intended
to be incident to
even
it
if
to henefit
made by a
1
stranger, and, therefore, whoever might become the owner
of the land would also become entitled to the benefit of the
covenant.
It is
upon this principle, that both the ancient warranty
and the more modern covenants for title, intended for the
benefit of the land,
assignee
that
have been held to run with
to say, the
is
owner of the land
it
to the
for the time
being is entitled to the benefit of all the warranties and covenants which the prior owners in the chain of title may
have given.
there
There was, however,
some privity between the
is
covenantee and the assignee of the

covenantor. See Milnes v. Branch,
5
Maule & Selwyn, 411.
Until the
of quia emptores abolished

subinfeudation, such a privity grew,
statute
common law, out of every conveyance into which no contrary stipulation was introduced.
In Pennsylvania, before it was decisively announced from the bench, in the case
at
of Ingersoll
v.
Sergeant, 1 Wharton,
337, that this statute never was in
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,
before
found
to
St reaper
155
though
that
them on
v.
Scott
been
authority
made
;
see
Rawle, (Pa.)
Lunt's Admrs, 7 Peters,
Fisher,
v.
had,
attempts
decision,
605.
1
Such
at least
is
the conclusion of
the English Real Property
Commis-
3d Rep. p. 52
and such
appears to be the view taken by Mr.
Hare. Lord St. Leonards, however,
sioners,
has questioned the accuracy of this
this
important difference
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.

and the comments on the cases of
ed.)
Brewster
v.
Kitchell, 1
Lord Raym.
Owen,
2 Blackford,
317; Taylor
(Ind.) 301.
v.
This is illustrated by the early

authority of Pakenham's case, 42 Edward III., cited in Spencer's case, 3
Coke, 1C, where a Prior and Convent having covenanted with the
owner of a manor, on which stood a
chapel, that they would sing weekly
in this chapel for the benefit of the
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
it
passed to whomsoever might be the owner, although,
as between him and them, there was
benefit the land,
neither privity of estate

tract.
nor con-
336
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
stance, whether
it
upon the heir in every inhad or had not been broken in the life-
time of the ancestor.
never
could
It
succeed.
although until
was a right to which an executor

But with respect to covenants,
breach, they, equally with the warranty,

with the land they were intended to pro-
to the heir
passed
yet if a breach had occurred in the lifetime of the testhen became choses in action, incapable of transmission or descent, and whose right survived to the executor
tect,
tator, they
alone.
Nor
there any difference, as to principle, between
is
Eng-
and American authority in this respect.

It is a settled
on
both
of
that
sides
the
until
rule,
Atlantic,
breach, the
covenants for title, without distinction between them, run
lish
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
if broken at all,
what are called covenants in presenti
their breach occurs at the
covenant
is,
moment
Touchstone, 175.
53,
Com.
418
Covenant, B. 1;
Wentworth's Office of Exec. 160;
Lucy
v.
v.
Dig.
Levington, 2 Levinz, 26
S.
Polhill, 2 Ventris, 56
C. 3 Salkeld, 109, pi. 10
Smith
64
Comberbach,
Simonds,
v.
Ray-
Fitch, 2 Croinpt. Mees. &

Rose. 588
S. C. 4 Tyrwhitt, 985
mond
v.
Eicketts
v.
12
Weaver,
Welsb. 718; Young
Com. Bench,
810.
v.
Mees.
Raincock,
The much
&
7
con-
Kingdon v. NotMaule & Selwyn, 355 4 Id.
troverted cases of
tie,
the
that a particular state of things exists at that
Morley
of their creation
and King
v.
Jones, 5 Taunton,
King, 4 Maule & Sel188,

though sound as to the
wyn,
decision, contain some dicta which
;
Jones
would seem
that
v.
to justify the conclusion

for title, like
modern covenants
the warranty, passed to the heir or

devisee, whether the breach did or
did not happen in the testator's lifeThis was going too tar, :md
time.
has since been corrected by the caet

of Raymond v. Fitch, llicketts v.
Weaver, and Young

supra.
v.
Raincock,
FOR TITLE RUN WITH LAND, ETC.
337
if this be not true, the delivery of the deed which

contains such a covenant causes an instantaneous breach ;
time, and
these covenants are then,
it is
held, turned into a
mere right
not assignable at law, which can be taken

advantage of only by the covenantee or his personal representatives, and can neither pass to an heir, a devisee, nor a
of action, which
is
subsequent purchaser.
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
distinction exists
it
seizin,
between the
has been said,
is
England
that
different covenants.
no such
That
for
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
quo ties as the exigencies of the

case may require, and that the want of seizin is therefore a
that even although, according to the
continuing breach
letter,
tion
to ties
there should be a breach on the instant of the crea-
of the covenant,
(when
its
words are
in the
present
that according to its spirit, the right of action

tense,) yet
should pass to and vest in the party in whose time the sub-
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
stantial
title to
the land through him.
Such are the
principal grounds on which the English

1
decisions have been based.
In the case of Kingdon v. Not-
when
presented, the plaintiff as executrix sued the

defendant for a breach of the covenant for seizin, and, as is
tle,
first
Kingdon
Selw. 355
v.
Nottle,
S. C.
Id.
29
Maule &
53; King
v.
5 Taunton, 418; Jones

King, 4 Maule & Selw. 188.
2 1 Maule & Selw. 355.
Jones,
v.
338
usual in declarations on this covenant, assigned for breach

was not seized, &c., which on special
demurrer was held bad, on the ground that there was no
that the defendant
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 testathat it was not alleged that the estate was thereby
tor
prejudiced during the lifetime of the testator, and if after
his decease any damage occurred, that would be a matter
which concerned the
Judgment was, therefore, entered in that action for the defendant.

But when the case
was again presented, 1 the same plaintiff sued as devisee of
heir.
the
covenantee, setting forth in the declaration that the

estate had been prejudiced by reason of the defect of title,
On
demurrer, it was argued for

the defendant, that the covenant was broken as soon as
and
its
sale prevented.
made and
but
it
was
therefore no right of action passed to the devisee ;

held that so long as the defendant had not a good
was a continuing breach, and although according

the letter, there was a breach in the testator's lifetime,
title
to
there
the substantial breach was

yet that, according to the spirit,
in the time of the devisee, for she thereby lost the fruit of
the covenant in not being able to dispose of the estate.
Jones 2 proceeded much on the same

ground, though the covenant was for further assurance,
which, although its breach occurs technically by the refusal
The
case of
King
v.
may present the same quesIn that

as that arising on the covenant for seizin.
case, the refusal to make further assurance occurred during
to execute a further assurance,
tion
the lifetime of the covenantee, while the real
damage was
" The covethe party evicted.

felt by his heir
"
nantee," it was said by the Court,
paid his purchase-money,
who was
Kingdon
Selw. 53.
v.
Nottle, 4
Maule &
25
3
Taunton, 418.
See supra, p. 199.
339
relying on the vendor's covenant ; he required him to perform

it, but gave him time, and did not sue him instantaneously
It was wise so to
for his neglect, hut waited for the event.
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
in preference to the executor," and

respect of personalty,)
on writ of error to the King's
affirmed
was
judgment
this
Bench.
On
State of Indiana
this side of the Atlantic, the
is
the
only one in which the doctrine held in these cases has been
fully recognized
and enforced, 2 although there are some
which no opposite opinion has been expressed.

In Maine, however, recent statutory provisions have
3
tablished the law in accordance with this doctrine.
in
es-
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.
istrators v.
M'Coy
Jones v. King, 4 Maule & Selw.

In considering these cases,
care must be taken to distinguish
i
188.
between
decision
their actual
the dicta which they contain.

cases themselves decide no
than that in the
and
The
more
place, until
breach, the covenants for title run
first
with the land, and that, secondly,

the covenant for seizin, though nominally broken at the instant of its
creation, has in reality a continuing
breach, not consummated until some

In
actual damage has taken place.
other words,
enant in
it is
not so
prcesenti, as
indemnity.
much
a cov-
a covenant of
The American
Backus's Admin-
the leading case, and

although the
is
author-
agree with the
ities
first
of these
propositions, but, in general, dissent

from the second,
2
s ee Martin v. Baker, 5 Blackford,

In Reasoner v. Edmundson, 5
Indiana, 393, the suit was brought
by an assignee, and although in the
232.
very recent case of Bottorf v. Smith,

7 Indiana, 674, the Court said "If
the vendor had no title, the covenant
was broken immediately after it was

executed," yet the decision does not
touch the point ruled in Martin u.
Baker,
3
g ee
43
infra, p. 343, note,
Ohio, 216.
340
pleadings did not perhaps strictly call for the doctrine there
laid down,
yet it has since been adhered to and become the
law of that State.
Sherman, J., in delivering- the opinion

of the Court, after referring to the
English decisions just
" when the heir or
cited, considered that they settled that
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
and make that which otherwise must be
either a
considering the
covenant of seizin as a real covenant, attendant upon the
inheritance, it will form a part of every grantee's security,
dead
letter
means of
injustice, a most useful and beneficial covenant.

dead letter, when an intermediate conveyance has
taken place between the making of the covenant and the
or a
discovery of the defect of
title,
and the covenantee refuses
to bring suit.
means of injustice, when after the covenantee has sold and conveyed without covenants, he brings
and sustains an action on the ground that the covenant was
broken the moment
it
was entered
into,
and could
not,
When lands are granted in fee,

thereafter, be assigned.
by such a conveyance as will pass a fee, and the grantor
covenants that he is seized in fee, we can perceive no objection, legal or equitable, to this covenant, as well as the cov-
enant of warranty, passing with the land, so long as the purchaser and the successive grantees under him remain in the
undisturbed possession and enjoyment of the land."
The
doctrine thus held, though
in the arguassailed
strenuously
ment of a subsequent case, 2 was nevertheless there adopted
1
Soe supra,
p. 22, note.
Foote
v.
Burnett, 10 Ohio, 327.

by the Court, and may be said to be the settled law in the
1
and recent cases in Missouri have apState of Ohio
2
proved and followed this same course of decision.
;
Devore
v.
Sunderland,
1 7
Ohio,
crued
to himself
but in respect to the
had fallen upon his grantee."

2 Dickson v.
After referring to the Ohio decisions,
" We are
it was then said,
162.
After referring to the English
disposed
to take a similar view of our statute
authorities, Leonard, J., in delivering
the opinion of the Court said, " It is .covenant.
It proceeded no doubt
thus seen that the real point of diffrom an instinctive feeling of the
moral propriety of requiring a party
ference is that in England the covenant of seizin is, under some circum- who sells land, and not merely his
own interest in it whatever that
stances, a mere covenant of indembut in some of the United may be, and conveys it by words of
nity
loss that
60.
States
transfer appropriate to such a transaction, to secure to the purchaser and
which of course only one recovery

can be had, the right to which ac-
the enjoyment of the property sold,

and to indemnify them if it should
crues as soon as the covenant
be
it is
always a present covenant, which if ever broken, must be
broken as soon as made, and upon
tered into.
then seem
is
en-
The
true question would

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
those
who succeed him
by reason of any defect of
lost
title.
in his rights,
This construction
will best
islature
we
think
promote the object the leghad in view, and subserve
the purposes of justice, in transactions 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
at the present term, that the cause of

action accrues immediately, so as to
the right of action upon a covenant

of seizin shall vest in the assignee of
the land, so as to enable him to sue
set the statute of limitations in
and recover
motion
in his
against the party, if we are to hold

that during the whole period of its
eviction
running, the party could not have

recovered anything more than nomi-
session without
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
wards
to allow
title,
him
and yet
after-
to recover, not
on
account of any damage that had ac-
29*
by a
title
own
right after
an
paramount. When,
therefore, a defeasible
under the deed, we
title,
or the pos-
has passed
shall consider the
any
title,
statute obligation in respect to the title rather as one of indemnity, which,
running
O with the land until the damage is sustained, enures to the benefit
of the party on whom the loss falls.
The general doctrine of the old law
as to the real warranty, that when no
estate passes to
which the warranty
31-2
The weight
of American authority is, nevertheless, unof the position, that the covenant for
favor
doubtedly
seizin being broken, if at all, at the instant of its creation,
is
thereby turned into a mere right of action, incapable of
assignment, and, consequently, of being exercised by any
in
but the covenantee or his personal representatives. 1
can be annexed, the benefit of it does
vests in the
not run to a subsequent assignee,
loss falls."
it
admitting
to
be applicable to the
modern covenants of title,

in cases like the present
228
by the Amer-
383
ican decisions that the conveyance

by a grantor in possession under a
passes an estate to the
grantee sufficient to carry the cove-
claim of
title
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-
and indefeasible, and the possession have not gone along with the
deed, the covenant is broken as soon
as it is entered into, and cannot pass
to an assignee upon any subsequent
fe"asible
transfer of the supposed right of the

In such case the
original grantee.
breach
is
final
obviated
is
and complete
the
Hacker
Heath
but see the recent statute in
ardson
Potter v.
Dorr, 5 Id. 9
Taylor, 6 Id. 676; Pierce v. Johnson, 4 Id. 253; Mitchell v. Warner, 5 Connect. 497; Davis v. Ly-
man,
v.
6 Id. 249
627
Id.
an estate
Bickford
Prescott
Wheelock
Page, 2
v.
v.
Trueman, 4
v.
Thayer, 16
Pickering, (Mass.) 68; Thayer v.

Clemence, 22 Id. 490 Clark v. Swift,
;
3 Metcalf, 390
2 Johnson, 1
Id. 72
Greenby
v.
Hamilton
v.
Townsend
(N. Y.) 123
McCarty
if
Mass. 455
and the party recovers all the

damages that can ever result from it.
If however the possession pass, although without right
Whidden, 24 Maine,
v.
Maine, cited in the note to the next

Williams v. Weatherbee, 1
page
Garfield v.
Aikens, (Verm.) 233
RichWilliams, 2 Vermont, 327
worth, 21
all,
v.
Wilcocks,
Wilson, 4
Morris, 6 Cohen,
Beddoe's Exr.
v.
34 Blydenburgh
;
Lot
nington, (N. J.)
1 Duer,
Thomas, 1 Pen407
Chapman v.
v.
Cotheal,
v.
Holmes, 5 Halsted, (N. J.) 20
ferred by the deed, and the grantee

have the enjoyment of the property
rison
according to the terms of the sale,

the covenant runs with the land, and
Wilson
paramount
title results
in
some dam-
age to the actual possessor, and then

the right of action upon the covenant
v.
Sandford,
Id.
261
Gar-
Carter
3 Zabriskie, (N. J.) 270

Forbes, 2 Devenuix, (N.
Denman,
v.
120;
Leggett, 3 Hill, (N. Y.)
v.
(N. Y.) 197
v.
Wads-
Wendell, (N. Y.)
in fact, although not in law, be trans-
passes from party to party until the
the
Storer, 8 Greenleaf,
v.
covenant is broken immediately, once

for
whom
party upon
Grist v. Hodges, 3 Id. -JuO

Car.) 30
South's Heirs v. Hoy's Heirs, 3 Mon-
(Ken.) 94; Rice v. Sjiottiswood,

40 Pence v. Duval, H. M miroe, (Ken.) 48
Logan v. Moulder, 1
roe,
6 Id.
J)
34-3
This rule has not, however, been applied to the covenant

The original
against incumbrances, without a struggle.
Pike, (Ark.) 313
Ross
v.
Turner, 2
the grantor
is
seized, or not seized,
(Ark.) 132; Pillsbury v.

Mitchell, 5 Wisconsin, 21. In Mitch-
and, therefore, the covenant is invioNot further

late, or violated wholly.
was the
to pursue the subject, I remark, that,

in my judgment, the case of
Kingdon
English,
ell
v.
Warner,
especially,
English doctrine severely criticized.

From the opinion of Lord Ellenborotigh in
Kingdon
mer, Ch.
J.,
v.
Nottle, said Hos-
"I am compelled
sent in omnibus.
to dis-
First, I affirm, that
y. Nottle
may justly be said to Authorize the assignment of a chose in
action by devise ; a supposition as
unfounded as
it is
novel.
I therefore
the novel idea attending the breach

in the testator's lifetime, by calling it
conclude, that the determination in

the above-mentioned cases of KinÔ
a continuing breach, and therefore a

breach to the heir or devisee at a
don
is an
ingenious sugno substantial import.
subsequent time,
v.
Nottle are against the ancient,
uniform and established law of Westminster Hall, against well-settled
uing breach, until it is in some manner healed

but the great question
whom does it continue as a
is, to
and decided cases in the

States, and that the
Judges pronouncing them would have
been of an opinion different from the
one expressed, had they recognized
breach ? The only answer is, to the

person ivho had the title to the contract
the principle here well established,

that the breach of the covenant of
when
seizin
gestion, but of
Every breach of contract
is
a contin-
it toas broken.
It remains, as it
was, a breach to the same person who
first had a cause of action
upon it.
be anything more,
continuing breach, but a
If
it
ence.
that
it
is
not a
new
exist-
it
In the next place, I assert,

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
broken, that is, if the grantor was

not seized, it is infracted to the
is
core,
and a second supposed breach is as

futile, as the imaginary unbroken existence 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
and cannot be
and partly sound but
futurition,
partly broken
principles
surrounding
is, in its nature, total, and the

measure of damages the whole con-
money paid for the land."

In Maine, however, the rule which
denies the benefit of a covenant for
sideration
seizin or against
incumbrances
to
an
assignee has been thus altered by the

Revised Statutes (1841), Title X.
" In all cases where
Chap. 115, 16.
real estate has been or may be conto any person, his heirs or aswith
a covenant that the grantsigns,
or was seized in fee of the same, and
veyed
that
it
was free of
all
incumbrances
at the time of such
conveyance, the
same estate being then under mortgage or other incumbrance, or the
grantor not being thus Seized of the
same, the assignee of such grantee,
his executors or administrators, after
having been evicted of said estate by
344
object of the introduction of this covenant
it
being often
connected with the covenant for quiet enjoyment, and therel

it
being* often
by rendered equally prospective with it
the elder and better
title
of the mort-
gagee, his heirs, or assigns,
may
main-
such an intention
whole
out the
is
not used throughIt subse-
section.
an action of covenant broken

first grantor on any of the
quently limits the enactment to cases

of incumbrances arising from mort-
covenants in such absolute deed, in

his or their own names, and recover
But sect. 17 dispels the obIt takes

scurity of the prior one.
from the grantee, after he has as-
tain
against the
such damages as the grantee might,

he had been evicted and had
if
brought the action in his own name

provided, he shall file in court, at the
;
gages.
signed to a third person, the power

covenants of seizin and
to release the
first
term, for the use of the grantee,

a release of the covenants in said
freedom from incumbrances, so as to

bar or any way affect the right of
such third person to maintain an
grantee's deed, to said assignee, and

all causes of action on any of such
action against the first grantor for

breach of said covenants of seizin,
and freedom of the premises from
covenants.
"
17.
When
a person has con-
cumbrances.
in-
This section deprives
veyed, or shall convey real estate to
the grantee, after assignment, of the
another, covenanting in his deed

that he is seized in fee of the premises, and that they are free from all
power of releasing such covenants,

and recognizes the right of the as-
incumbrance at the time of the conveyance, and such grantee shall afterwards convey the said premises to a
cover damages for a breach of them.

Taking both sections together, the
signee to maintain an action to re-
meaning and purpose of the

lature
covenants contained in the deed
for
first
mentioned, so as to bar or any way

affect the right of such third person
an action against the first

grantor for breach of said covenants
of seizin and freedom of the premises from incumbrance."
to maintain
It is
is
a breach
of the covenant
seizin, as well as that against
422
Allen
v. Little,
36 Id. 175.
In Georgia, moreover, it has been

said in a recent case, " I would sug-
choses
assignability of
breach of the covenant of seizin, but
Redwine
language
necessary to perfect
of
incum-
brances, is intended to be given to

the assignee of the grantee."
See
also Stowell v. Bennett, 84 Maine,
The following observations upon

these provisions were made in the
recent case of Prescott v. Hobbs, 30
" The 1 6th sect, of
Maine, 346.
chap.
115, R. S., indicates," said Wells, J.,
" that a
right of action shall pass to
the assignee of the grantee for a
the
legis-
too plain to be disregarded.

manifest that a right of action
third person in fee, such grantor shall

have no power to release the said
gest the inquiry, does the reason for

not allowing the covenantee to sue
for
a breach of personal covenants

this State, where our leg-
apply in
islature
is
v.
so literal in favor of the
Brown, 10
See supra,
p. 109.
in
action?"
(leor-in, 318.
345
and the obvious policy of

owner for the time being, have
called a covenant of indemnity,
insuring its benefit to the
conspired to militate against the supposed technical rule

which has confined the covenant for seizin within such a
all
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
earlier
cases in
assignee, while in
the assignee of one
its
Massachusetts,
some
who
had received a covenant against incumbrances was, without

objection or comment, allowed to recover, and in a subsequent case the language of the Court in favor of the rights
of the assignee was direct and explicit.
1
McCrady
v.
Brisbane,
(S. Car.) 104.

however, cited in
McCord,
Nott
&
The author-
But a few years
nant against incumbrances in a case

This is of course
like the present."
this,
obvious, provided it be not held that

the covenant is broken once and for
ance, eminently prospective in their

operation ; and indeed the distinc-
the quotation from the Year Book,

the covenant was a prospective one,
and the decision would, it is believed,
ities,
support of
were not applicable to this covenant, since they were cases arising
under covenants for further assur-
tion
between
their several
natures
seems not to have been very closely
The
observed.
following authority
from Co. Litt. 384 b, would appear

to have been principally relied upon
" It hath been
adjudged (42 Ed. III.)
:
all,
at the instant of
its
creation.
In
have been the same at the present

day in any court. See infra.
2 Stinson v.
Sumner, 9 Mass. 143,
and Estabrook v. Hapgood, 10 Id.
313.
3
Sprague
v.
Baker, 17 Mass. 588.
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-
the covenant has been kept, but that

it was broken
previous to the assign-
sued out of the land, the covenantee

In that case, the assignee
chose in action
aliened.
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
authorizes me to
The objection is," said Wilde, J.,

who delivered the opinion, " not that
ment of
the plaintiff, and being a

it was not assignable
by the common law.
The ground of
has been frequently

held valid by this Court Bickford v.
Page, 2 Mass. Rep. 455 AVyman v.
this
objection
Ballard, 12 Id. 304.
The same
point
case before us, and

say, that where the covenant runs
with the land, the assignee of the fee
and by a
v. Ridge, Cro. Eliz. 863
majority of the Court in the case of
may have
Green by
the benefit of the cove-
was determined
in the case of
Lewis
et al.
v.
Wilcocks, 2 John-
346

1
was adhered
to in so few words as
had never been doubted, and
one case the question seems to have been thought
the technical rule
after,
to induce the impression that
it
although in
an open one, 2 yet when the point was directly presented within
a few years past, the authority of the earlier cases which
proceeded upon the English doctrine was distinctly repudi8

ated, and the question may be considered as finally settled
in favor of the
son, 1.
technical rule, not only in Massachusetts,
similar doctrine
laid
is
down by Comyn's
would not be
that such
of maintenance, the good sense of

which Judge Buller, in the case of
well warranted in
Master
v.
Miller, 4
&
Durn.
East,
340, thought very questionable. He

even pronounces it not only a quaint
which, he
says, the courts of equity, from the
earliest times, thought too absurd for
maxim, but a bad one
However this may

be, it is a rule of the common law,
and must be held -binding. But we
them
to adopt.
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
nor do I think
right,
Dig. Covenant, B.
3.
It, however, depends upon a rule
of the common law, for the avoidance
the law.
is
seems
It
that, if the present case
decision
this point,
upon
to
me
required a
we might be
saying that the
covenant against incumbrances, notwithstanding the breach, passed to

the assignee, so as to entitle him to
an action
any damages he might
for
sustain after the assignment, because

the breach continued, and the ground
of damages has been materially enso that the

larged since that time
;
does not depend upon

the assignment of a mere chose in
plaintiff's
action.
title
He
is
principally interested
and those covenants
in the covenant,
run with the land,

er
is
and
in
which the own-
solely or principally interested,

which are necessary for the main-
tenance of his
rights.
Covenant
lies
but for this breach

assignment
Hitchings could only have recovered
by an assignee, on every covenant

which concerns the land. Com. Dig.
nominal damages. The actual damages accrued after the assignment.

These were sustained by the plaintiff,
and not by Hitchings, who has no in-
Covenant, B.
terest
from
in
his
them except what
covenants with the
arises
covenants, or suppose Hitchings to be

insolvent; then, unless the plaintiff
can maintain the present action, lie

is without
remedy. This certainly
3."
v.
Adams,
v.
Hawes, 13 Pickering.
Pickering,
549.
2
Pettee
327.
v. Clemence, 22 PickerMet. 'alt;
Clark v. Swift,
r. Dinsmoiv,
394;
Whitney
(Mass.)
6 Cushing, (Mass.) 128; OsU.nie r.
plaintiff.
But suppose there had been no such
Tufts
ing,
Thayer
494
:i
Atkins, 6 Gray, (Mass.) l:M.
847
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 authorthe benefit of the covenant against incumbrances is
ity,
denied to an assignee, unless where it is either so exas to
pressed in itself, or so linked to another covenant
have a prospective operation, and not be a covenant in present L
In examining the American cases which have thus established the rule referred to, it will be observed that the
1
As where
the covenant
is
that
the purchaser "shall enjoy, &c., and

that free of all incumbrances," &c.,
see Jeter v. Glenn, 9 Richardson's
376, and supra, p.
fact injuring
of
title
no one
may be
and the want
at length, for the first
time, felt by one, who, removed from

the original grantee by many conveyances, has directly to bear the
Law,
(S.
109.
Chancellor Kent, in referring
whole burden of the
in his
Commentaries
case, if the injured party has not received a general covenant from his
as settled
Car.)
to the doctrine
by the American
remarked,
" that
to
it is
cases, has
be regretted
loss.
In such
immediate grantor, and the
cove-
that the technical scruple that a chose

in action was not assignable, does
nants for seizin or against incumbrances are the only ones in the
necessarily prevent the assignee from

availing himself of any or all of the
deed, he may be, according to the

current of American decision, with-
He
covenants.
the most inter-
is
and the most
person to
claim the indemnity secured by them,
for the compensation belongs to him,
ested,
fit
as the last purchaser
and the
first
4 Kent's Commentaries,
Lord Ellenborough got over
suil'erer."
472.
the difficulty in Kingdon v. Nottle,

\vlu-n tlu- rase came before him the
second
time,
want of
by holding
seizin
that
the
was a continuing
" but
this," said Chancellor
Kent, "is too refined to be sound.
breach
seizin in those prior to himself in the
chain of
title.
In those parts of
this
country where, as in England, a vendor does not, in general, covenant
beyond
his
own
acts,
it
becomes im-
portant that each vendee should have

the benefit of all the covenants entered into by the prior owners, so that
although each vendor
and
may only have

covenanted against his own acts, yet
in the last vendee will be vested the
Nommany
right to take advantage of each and

all of these covenants
and this can
but nominal for a long time, un-
only be on the principle that their

technical and their actual breach
The breach
per tir
1:
is
single,
entire,
in the first instance."
inally, indeed, this
instances,
is
out remedy for a covenant limited

to the acts of the grantor would not,
of course, be broken by any want of
it
may
yet in
be that the breach
is
discovered, perhaps,
so,
and
in point of
occur at the same time.
348
decision
and only
in obedi-
to be the strict technical
common-
often given with reluctance,
is
ence to what
is
supposed
and enforced by the cases of Lucy v.

1
2
and
Lewis
It is, however, somev. Ridge.
Levington
what remarkable that these cases do not at all appear to
law
rule, as illustrated
support the position for which their authority is relied upon.

The case of Lucy v. Levington decided no more than that
where a
who had
testator,
enjoyment, was
received a covenant for quiet

was the proper party
evicted, his executor
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
to take
capacity for running with the land of course ceases ; a proposition too obvious to need the
support of authority, and
1
reported 2 Levinz,
force of this fine, non aliter, the de-
831.
as to the
fendant was seized, and sold and

made this covenant and that after
inquiry, the most

" Covenant
as follows
the act, Croke, claiming by title derived from the Lady Mary Powell
that Levington sold to
by the settlement of Vanlore, by

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
This case
is
26, 1 Ventris,
The
175, 2
Keble,
report in Levinz,
point
is,
now under
and is
and declares
full,
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
and
Sir Peter
Van lore,
their heirs
virtue of the said
and all claiming unand assigns for breach,

der them
that Croke, claiming under Vanlore,
ought to be brought by the heir or
ejected him. The defendant pleaded,

that at the time of the covenant, he
the executors.
was seized of an indefeasible title,

and that, by a subsequent Act of
that the eviction being to the testator,
assigns,
;
Parliament, reciting that Sir Peter
Vanlore had
the
settled his estate
Lady Mary
upon
Powell, and that cer-
tain persons had unduly procured

her to levy a fine, it was enacted
that
thi.s
be void, and
if no
fine should
persons might enter as
that
all
fine
had been levied
and that by
of inheritance
assignee,
whose
therefore the action
loss it
is,
To which
and not by
it was an-
swered and resolved by the Court,

he cannot have an heir or assignee
of this land
and so the dama-vs
;
belong to the executors, though not

named in the covenant, for they represent the person of the testator."
The
rest of the report is not mate-
rial.
Cro. Eliz. 863.

which applies equally
84<9
to a covenant for seizin or for quiet
enjoyment.
The
which,
case of Lewis
v.
in this country, is
Ridge is, however, the authority

deemed to he conclusive of the
or against incumbrances
point that a covenant for seizin
is
broken as soon as made, and is immediately incapable of

The decision seems to have been somewhat
assignment.
"
misunderstood.
The
was such
case
ing seized of land in fee, let
it
for
life,
the defendant, be-
remainder for
life,
and afterwards acknowledged a statute, and

after that, by indenture, bargained and sold the reversion,
and covenanted with the bargainee, his heirs and assigns,
rendering rent,
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 maae to the bargainee by the common law,
But because the coveor by the statute of 32 Hen. VIII. I

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
there can be no doubt that a covenant to

place,
discharge
of incumbrances within two years, being a covenant to do

a thing certain at or within a certain time, is finally and
i
Shelton
(Mass.) 321
v.
;
Codman,
Fields
v.
3 Gushing,
Snell, 4 Id.
30
509
Tillotson
C. (N. Y.) 521.
v.
Boyd, 4 Sandf.
S.
350
at the expiration of that time, although no

actually broken
whatever may have occurred to the covespecial damage
This was expressly decided in the case of Lethnan tee.
1
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

19,000, no special damage having been laid or proved,
and judgment having gone by
default, the
sheriff's
jury
this
aside
but
was
set
the
nominal
Court,
damages
by
gave
on the ground that, as the object of the covenant was that
the estate should be unincumbered within a year, it would
;
be valueless, unless upon
whole amount
it
the plaintiffs could recover the
of the incumbrance
and such a
distinction,
of the covenant, has been

arising from the peculiar nature
in
and
many cases on this side
applied
distinctly recognized
2
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
3
reason of such a mere technical breach.
But, in addition to this, it seems not to have been observed that in this case of Lewis v. Ridge, execution had
issued upon the statute ; the land was actually extended ; the
covenant was therefore as completely broken as
& Adolph. 772.

See them cited supra, p. 153,
note. " There is a difference," said
1
2 Barn.
Swift, J., in the course of an able opinion in the case of Booth v. Starr,! Con" between a contract to disnect. 249,
or
charge
acquit from a debt, and one
to discharge or acquit
from the dam-
ages by reason of it. Where the

condition of the contract is to discharge or acquit the plaintiff from a
bond or other
particular thing, then,

unless this be done, the defendant is
liable
it
could be, 4
from the nature of the contract,
though the plaintiff has not paid,

But if it be to discharge and acquit
the plaintiff from any damage by
reason of such bond or particular
thing, then it is a condition to indemnify
and save harmless
Saund.
117, n."
3
*
Supra, p. 134.
In this case, the word extent
seems to have been used
in* its
general
xirution
with
synonymous
upon a statute or recognizance. This
sense, as
351
" 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
action,
total breach the covenant
becomes a chose
in
and therefore incapable of transmission or descent.
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 intenIt
may
making and receiving them, and the

which
were
intended to fulfil.
object
they
They succeeded
the ancient warranty, which was exclusively a covenant real,
tion
of the parties
and could never in any event be taken advantage of by personal representatives ; and it seems that the introduction of
covenants in place of the warranty, was intended rather to extend the remedy (both by means of the more pliable form of
the action of covenant, and by giving indemnity in the shape
of damages,) * than to alter materially the rights and relative
positions of those who might seek to take advantage of them.
was often the case
for although,
in the older books,
used will be found in Bac. Ab. Exe-
staple the
B. And see the Stat. de

Merc. 13 Ed. L, stat. 3, c. 1. This construction seems also to have been put
upon a statute
conusee could not, after the appraisement or extent of the lands, iminediately take possession of them, but
was obliged
sue out a liberate,

(Fitz.Nat. Brev. 132,) in which case
the extent was not the consummation
to
eution,
upon the case of Lewis

4
Sandtbrd's
it is
said
time of
the party was dead or not in his bailiwick, the lands were extended and
his
forthwith delivered to the conusee,

without the delay or expense of a
had acquired
Fitz. Nat. Brev. 130.
stances of the
word
In-
extent being thus
S.
" As
long ago as the
Elizabeth, it was held
that a purchaser of land could not
where
of the execution but only one of its

parts, yet upon a statute merchant, if
the sheriff returned to the capias that
liberate;
Ridge in
v. Boyd,
C. (N. Y.) 521;
.
the recent case of Tillotson
Queen
who had conveyed to

immediate grantor, on a covenant
which was broken before the plaintiff
sue the person
right.
Lewis
v.
Ridge,
Cro. Eliz. 863."

1
See supra, pp.
12, 59, note,
35%
was probably not supposed,
It
at the period
of
intro-
its
duction, that the covenant for seizin could never be taken
advantage of by any one to
whom
the land had
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
doctrine, if practically enforced,
Such a
in his lifetime.
might have materially
les-
1
sened the value of this covenant.
The
extent to which this doctrine
is
susceptible of modifiin the name of the
the
to
sue
cation, by allowing
assignee
original covenantee, will be presently considered.
But whatever
difference of opinion may exist as to the

an
of
assignee to take advantage of the covenants for
right
or
seizin
against incumbrances, there is none as regards the
These are,
covenants for quiet enjoyment and of warranty.
with entire unanimity on both sides of the Atlantic, held to
enure to the protection of the owner, for the time being, of
the estate which they are intended to assure, passing with
it
by descent or by purchase, by voluntary or by involuntary

They may, therefore, be enforced not only by
alienation. 2
1
Nor, perhaps, can an authority

in the English books to
Thus,
it
has been repeatedly held
be found
that the benefit of covenants for
support such a doctrine. The case of

Lewis ;. Ridge, it has already been
will pass to a
observed, seems to have been misunderstood.
The
decisions in
Kingdon
and King y. Jones, appear to

have laid down no new law and in
3 Wentworth's Pleading, 440, will be
found an elaborate declaration, drawn
by Mr. Lawes, (author of the wellknown work on Pleadings in Assumpin an action brought by the
sit,)
nice of one who had received
v.Nottle,
covenants, that a lease was a valid

and subsisting one, and that the cov-
enantor had
full
power
to assign
it.
sale,
title
purchaser at sheriff's
of a debtor's estate
Carter v.
;
"Penman,
McCrady
v.
Zabriskie, (N. J.) 270
Brisbane,
& Mc-
Nott
Cord, (S. Car.) 104; Lewis r. Cook,

13 Iredell's Law, (N. Car.) 196 Town
;
Needham, 3 Paige, (N. Y.) 546;

Markland v. Crump, 1 Dev. & Batt.
Redwine v. Brown,
(N. Car.) 94
10 Georgia, 320; White v. Whitv.
ney,
this
case
Metcalf,
more
injra, p. 862.
(Mass.)
81
see
particularly noticed,
353
the covenantee and his representatives, but by heirs, deviwho claim under the seizin vested in the
sees and alienees,
1
original covenantee.
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
in
Tims,
is
it
England,
though each vendor may only have covenanted against

his own acts.
Thus, if A, B, C and D, were successively
of an estate, each covenanting only
and
vendors
purchasers
this,
against his own acts, on the conveyance to C, he would achad

quire the same rights under A's covenant to B, as
himself done, and by a conveyance to D, the latter would
acquire all the benefit of the prior covenants of

addition to those which he had personally received
1
to
"
For
and
instance, if
convey land
his heirs, to certain specified uses, or to such uses as

shall
appoint,
and covenant
for title with
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;
the conveyance were to B and

his heirs, to such uses as C shall appoint, and, in default of appointment
so, if
to the use of
in fee,
C and
nant with
his
and
heirs,
cove-
and C
(instead of exercising his power of

appointment) convey the estate limited to
him
in default of appointment,
appears, can sue upon

A's covenants so, if C, in the exer-
his alienee,
it
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*
to B, in
from C. 2
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 nevertheless sue thereupon."
Dart 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 limited to the covenants which he had
himself received
but this was, in the
subsequent case of Withy
v.
Cowen, 137, shown
Mum-
have
proceeded upon a misapprehension
of the language of Parsons, Ch. J.,
in Bickford v. Page, 2 Mass. 460,
ford, 5
to
upon which the dictum in Kane v.

Sanger was founded, and the doubt
thus suggested has been frequently
Booth
and decisively repudiated
;
S54f
however, that if the defect of title were caused

would have no remedy upon the covenants of B
so if the defect were caused by C, he could sue
It is evident,
by A,
or
neither
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,
could sue either
A, B, or
but
apprehended that
is
it
if
the consequence of C's acts, neither

nor
liable, as it would be unreasonable that a
the defect were
could be held
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 subject the covenantor to several actions;
but this has been

" The better
observes,
denied by Lord St. Leonards, who

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
damages, which would be measured by the loss

of the assignee, as far as he might be entitled to recover it
lie
either for
under the covenant, or for an act to be done,
e.
g. further
assurance, which might properly be confined to the particuy. Starr, 1 Connect. 241
Chase v.
Weston, 12 N. Hamp. 413 Williams
v.
Wetherbee, 1 Aikens, (Verm.)
239 Thompson v. Shattuek, 2 Met;
calf,
(Mass.) 615
Wheeler
v.
Sohier,
pressed with his usual ability)

rin
Her-
McEntyre, 1 Hawks, (N. Car.)

410 Thompson v. Sanders, 5 MonRedwine v. Brown,
roe, (Ken.) 358
v.
;
10 Georgia, 311.
l 3 Preston on Abstracts of
Title,
3 Gushing, (Mass.) 222

Suydam v.
Jones, 10 Wendell, (N. Y.) 184; Le
57, 58.
Ray de Chaumont
Forsyth, 2 Penn-
great part owing to this reason that
sylvania, 507 ; Markland v. Crump,

1 Dev. & Bat. (N.
Car.) 94, (where
he stated that purchasers in general

attached more importance to cove-
is
u.
an opinion of Rullin, Ch.
J.,
ex-
nants for
It
seems to have
title
Uvn
than was di-M-rvud.
in
355

It
lar proportion of the property.
does not seem that any
would arise hy suffering" several covenants to lie,

injustice
to inconvenience ;
although it might expose the covenantor
might lead
to positive injustice, or if not, to greater inconvenience on
" l
and this view of the law has been adopted in
their part
2
So it seems to be considered in England,
this country.
that where the estate is divided, as where it becomes vested
whereas the denial of the right
to each assignee
in a tenant for life,
with remainder in
fee,
and the breach of
covenant affects the entire inheritance, the owner of each

of the inheritance can sue for damages proportioned
portion
3
to the extent of his estate, but in a recent case in
1
Sugden on Vendors, 508, citHare v. Cator, Cowper, 766
ing
Stevenson
Larabard, 2 East, 575;

Pickard, 2 Barn. & Aid.
Merceron v. Dowson, 5 Barn.
Twynam
105
&
v.
v.
Cress. 481
N. C. 756
Curtis
and see
v.
Spitty,
Bing.
Jarman's Con-
veyancing, 366. All these cases, howexcept Twynam v. Pickard,

were actions ayainst assignees of a
ever,
covenantor.
a
White
v.
(Mass.) 87
(N. Y.) 345
;
Whitney, 3 Metcalf,
v. Amidon, 4 Hill,
Hunt
;
Van Home
v.
Crane,
Penn-
for a long
term, in the middle of which the
been previously demised
brought an ejectment for

and recovered possession of the premises, and also recovered from the
500 damages in an action
tenant
on the covenants contained in the
trustees
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
against the trustees for
the transfer to themselves of the sum
filed a bill
thus invested, but
it
was dismissed by
Paige, (N. Y.) 455 Astor v. Miller, 2 Id. 68; McClure v. Gamble,
3 Casey, (27 Penn. State R.) 290
the Vice- Chancellor, on the ground

that the damages had been recovnvd
Dougherty v. Duvall's Heirs, 9 B.

Dickenson v.
Monroe, (Ken.) 58
Hoomes's Admr. 8 Grattan, (Va.)
and that for any injury done to the

inheritance those in remainder might
have their separate action. " It was
urged," said the Vice-Chancellor,
" that the
were
406.
3
At
least
the
proposition
is
so
for the use of the tenant for life only,
damages
something
Dart on Vendors, 366, referring to 9 Jarman's Conveyancing,

by Sweet, 404, and Noble v. Ca>s,
In that case a house
2 Simons, 343.
accruing to the inheritance, but no
had been devised in trust for a daughter for life, remainder to another for
sonal estate of the person
staled in
life,
remainder over.
The house had
authority was produced to show that

a court of equity has ever held that
damages were anything but the per-
who
re-
appears to me
that I should be introducin<? a new
covered them
and
it
356
sylvania, it has been held that all the parties entitled to the
1
benefit of the covenants for title must join in the action.
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,
It is evident,
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 damages recovered in an action for a
breach of a covenant running with

the land, are to be considered as part
of the inheritance.
is
Where
at all doubtful, the best
follow the law.

section 315,
a case
way
is
to
Now
"Also
sonals, tenants in
Littleton says,
as to actions per-
common may have
such actions personals jointly in all

their names, as of trespass or of offences which concern their tenements in
common, as for breaking their houses,

In this
breaking their closes, &c.
case tenants in common shall have
one action jointly and
shall
recover
jointly their damages, because the

action is in the personalty and not
And Lord Coke, in

" If
on
this
section, says
commenting
in
an
action
an aunt and niece join
of waste for waste done in the life
of the other sister, the aunt shall rein the realty."
cover the damages only, because the

"
same belongs not by law to the niece
;
Co. Litt. 198
a.
Therefore
that the spirit of the law
is,
it is
plain
that with
which
rc-|icct to injuries to land for
damages are to be recovered by personal action, the person who brings
the action is entitled to the damages.
McClure v. Gamble, 3 Casey,

The title
which the covenant was intended to
1
who
assure," said Lowrie, J.,
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 covenant are single, and that all those entitled to the
remedy upon
in the action.
it
We regard
must join
this objec-
and as receiving supthe

port by
reasoning of Mr. Justice
Rogers in the case of Paul v. Whittion as sound,
W. & S. 409 though in that

was decided only that different
owners may properly join. Regarding the tenant for life and the remainder men as entitled, as against
the covenantor, to one seizin and
man,
case
it
property divided
as
among them-
selves into different periods, we think

that the action on the covenant uivcn
to secure that seizin ought to be sin-
otherwise the covenantor, not

being able to set up the judgment
gle,
of "one against the other claimants,
might have
to
pay
to all
much more
required by his covenant,

and might be subjected to innunuT-
than
is
able actions for a single

the same covenant."
bivai-li
of
To
obviate such a result, a decision
357
was made
in
one of
New
York, which has, however, been

In the case of Kane v. Sansubsequently departed from.
the earlier cases in
with covenants of
warranty,
ger, the defendant conveyed,
certain lots to the plaintiff, who in turn conveyed them, with
who were subsesimilar covenants, to different
purchasers
suit on his covequently evicted, when the plaintiff' brought
nant. It was objected that by his assignment to the different
devested himself of
purchasers from himself, the plaintiff had
but the Court
all
right of action on his vendor's covenants,
was bound to indemnify these purentitled him to support his action, and,
held that as the plaintiff

chasers, that liability
to avoid the obvious objection that the original
vendor might
be liable to these purchasers (on the covenants which

had passed with the .land to them), it was suggested that
still
the latter were,
by
their acceptance of the covenants
themselves by the
to
plaintiff,
those of the original vendor.
made
precluded from suing upon
ler
however, the only ones relied on by

the Court, nor perhaps would they
be considered as available at the
Sanger, said,
grounds
recovery were, that the plaintiff's
present day in Massachusetts, since

it has there been held that although a
mortgage technically vests the legal
14 Johnson, 89.
In the very recent case of
Whee-
v. Sohier, 3 Gushing, (Mass.) 222,

the Court, in commenting upon Kane
" The
of the
v.
grantees had mortgaged the premises

to him for the purchase-money, so
title in
had the legal estate

when the covenant was broken, and
the defendant had obtained releases
from the plaintiff's grantees of all
claims and damages sustained in con-
remain with the equity of redemp-
sequence of the covenant, so that the

defendant was under no liability to
case of a mortgage, the benefit of a

covenant for seizin should attend the
and the Court held that these
it would
legal title in the mortgagee,
follow that one who had given a
mortgage for the purchase-money
that the plaintiff
them
releases could not bar the plaintiff's

recovery as, by the mortgage, the
;
of the premises was in the

and the mortgage was unplaintiff,
seizin
satisfied."
These grounds were
not,
the mortgagee, yet the benefit
of covenants
tion,
will,
and pass with

White
purchasers
notwithstanding,
it
v.
to successive
Whitney, 3
see infra, p.
Metcalf, (Mass.) 81
362, and if it were held that in the
;
could never sue upon his vendor's
covenant, because, by the mortgage,

the right of action had
become
vest-
358
This decision has, however, been since overruled on both
means adopted of meeting the difIn the case of Booth v. Starr, 1 decided
ficulty referred to.
in Connecticut in 1814<, it was held that the
right of action
these points, and another
of an intermediate purchaser
who had
himself parted with
interest in the land, did not
depend merely upon his

the purchasers from himself, but that
all
prospective liability to
could not be enforced until that liability should have been
fixed by the recovery of damages
by them, and their actual
it
2
payment by him, and
in the subsequent case in
New York
ed in the covenantor himself, and so
have sustained no damage.
merged. The law as to the benefit

of covenants following the legal title
last assignee,
As
the
has his election to sue
or any of the covenantors, as a
all
considered more
recovery and satisfaction by an intermediate covenantee against a prior

covenantor, would not bar a suit by
2 "Iii the
present case," said Swift,
J., in delivering the opinion of the
" the
a subsequent assignee, such intermediate assignee ought not to be

allowed to sustain his action till he
in the
mortgagee
is
fully infra, p. 360.

1
Connect. 244.
Court,
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 circumstances he can maintain this action
his
who is
The last
against the defendant,
immediate covenantor.
has
satisfied
his
subsequent assign-
every intermediate
covenantee might sue the first covenantor one suit would be no bar
ees, for otherwise
to another
they might
judgment and obtain

that a
man might
all
recover
satisfaction, so
be liable
to sun-
the same thing, and be
assignee can never maintain an action on the covenant of warranty till
dry
he has been evicted. Though the

title may be defective,
though he
may be constantly liable to be evicted, 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,
different covenantees, for the
thcre
has been
no breach of the
covenant, no damage sustained. By

parity of reason, the intermediate
nantees can have no right of
action against their covenantors, till
something has In-en done equivalent
to an eviction ; for till then they
suits for
compelled
to
pay damages
to
sundry
same
breach of covenant. In the present

case, the plaintiff cannot know that
his
covenantee who has been evicted,

ever sue him he may bring his
will
action
directly against the detend-
ant; a recovery in this suit, and puyment of the damages, would be no
bar; the defendant could then have

no remedy but by petition lor a new
trial, and if the plaintiff* in the mean
time should become unable to refund
money, the defendant would,
l>y
operation of law, be compelled
to
the

of Withy
Mumford 1
v.
359
was quoted with appro-
this decision
was moreover held that the acceptance by a

his own vendor, had no effect
purchaser, of covenants from
whatever upon his rights on the covenants given by the
bation, and
it
and on both these points

prior vendors in the chain of title ;
2
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
to or
all his interest in the land, he
parts also with all right
control over the covenants
which run with
and he can
it,
only regain that right over them by being made liable upon
own covenants and satisfying that liability ; 3 and when
his
the conveyance has been of part of the land only, the

doctrine will, it is apprehended, apply proportionally.
pay the same demand twice, withBut if the principle is
out redress.
adopted that the intermediate covenantee can never sue till he has satdamages, no such injustice
can ensue. The subject may be considered in another view. In all these
isfied the
the duty of the first covenantor to make good the damages
cases
it is
for a breach of the covenant,
indemnify
nantees.
nantor
is
and
to
the subsequent coveEach subsequent cove-
all
liable to all the
subsequent
and, on paying the

damages, will have a claim for indemnity against a prior covenantor.
covenantees,
The
nature, then, of the engagement

of the first covenantor is to indemnify all the subsequent covenantees
from all damages arising from

breach of the covenant."
1
Cowen,
his
137.
Chase r. Weston, 12 N. Hamp.

Williams v. Wetherbee, 1
Aikens, (Verm.) 239
Thompson
;
v.
615
Shattuck,
;
Wheeler
2
v.
222 Suydam v. Jones,

10 Wendell, (N. Y.) 184; Baxter
v. Ryerss, 13 Barbour's S. C. (N. Y.)
283 Le Ray de Chaumont v. Foring, (Mass.)
syth,
Crump,
574
Perm.
1
Dev.
&
Markland
v.
Bat. (N. Car.)
Uerrin v. McEntyre, 1 Hawks,

Thompson v. San(N. Car.) 410
Redders, 5 Monroe, (Ken.) 358
94
wine
v.
Griffin
Brown, 10 Georgia, 311.

v.
Fail-brother,
In
Fail-field,
(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.
413
same
Metcalf,
(Mass.)
Sohier, 3 Gush-
3 Allen o.
Little, 36 Maine, 170;
Vancourt v. Moore, 26 Missouri, 98,
in which cases the passage in the
text was cited and approved.
860
But from the
doctrine that the benefit of covenants for
passes, with the legal estate, through successive aliena-
title
and vests
tions,
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 covenants 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,
would seem
that wherever the
common-law
as the holder of the legal
mortgagee
but
it
relation of the
title is
recognized, as
England and some of our
States, he must, on
absorb
the
whole
benefit
of the covenants,
principles,
to the exclusion, in a court of law, of any subsequent purchaser of the equity of redemption.
Thus, it has been
is
the case in
strict
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
2
out of it, or such as will carry to an assignee the benefit of
1
Minot, 4 N.
McMurphy v.
251
Tufts
v.
550
White
Hamp.
McClary, 5 Id. 529

Adams, 8 Pickering, (Mass.)
Cavis
v.
(Mass.) 87.
Whitney, 3 Metcalf,
See this case, infra, p.
v.
362.
2
The Mayor
of Carlisle
mire, 8 East, 487.
v.
Bla-
In this case, one
Denton granted
to the Corporation
of Carlisle so much of the river Cal-
dew
as should be sufficient for their
mills,
nor
and covenanted
that neither he
nor assigns should ever

The defendants
course.
his heirs
divert
its
were sued
as assignees of all the estate, right, title and interest of Denton, and the breach alleged was the
erection of a
across
among
wear or dam by them
the river.
They pleaded
other things that they were
not assignees of
all
Denton, and upon
the estate, &c., of

this
an
issue
was
joined, and at the trial it appeared

that long before the breach of cove-
nant one Wilson was mortgagee of

the property, and the defendants were
seized only of the equity of redemption as devisees of
Denton 's
heir-at-
They were therefore nonsuited,

and, as the Court in bane held, prop" It is
impossible," said Lord
erly.
law.
" to
say that the doEllenborough,
fendants were assignees of the estate
of Denton within the sense
and mean-
ing of the terms in which this issue

was framed, and which terms respeet
that description
and quality of
namely legal
whereof parties are
alone,
estate, in
estate
virtue
at all liable to
actions of covenant as assigi
361
l
and in a very recent
a covenant for the payment of rent
case, where a purchaser having mortgaged the premises
was afterwards evicted hy a paramount title, and sued his
;
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,
the action.
facts
were
So
in
it
similar,
was held
to be a har to
a recent case in Kentucky, where the

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
would obviously lead to the

where land was sold with covenants
decision
embarrassing result that

for title, and the purchaser had given to his vendor a mortgage 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
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 mortalso
gage remained unpaid, but

court of equity.
It is,
1
his only
however, familiar, that in
Pargeter
Bench, 708.
2 Thornton
v.
remedy would be
in
Harris,
Queen's
many
of our States the
his rights stand
on a different footing.
Whenever
the
money
spec-
Court, 17 Jurist,
(March, 1853,) 151; 17 Eng. Law
& Eq. R. 231 ; see this case noticed
mortgage has been paid,

the mortgage is fully satisfied, and
even without a formal release, the
more
title,
v.
fully, infra, p. 365.
McGoodwin
Stephenson, 11 B.
Monroe. (Ken.) 22. "The covenant in
the deed," said the Court, "is the usual
covenant of title, and runs with the
land.
v.
It is well settled that
a mort-
gagor, even after forfeiture, is considered in equity, as still having the
ownership of the
estate, the
land be-
ing only a pledge or security for the
mortgage-money.
At
law, however,
31
ified in the
by the act of payment, reverts

and of course, in
to the mortgagor,
such case he could maintain the action
having been
thus
reinvested
with the legal title

but so long as
the debt remains unpaid and the
;
mortgage is in full force 'unsatisfied

he is deprived of the legal estate,
and cannot sue for a breach of the
warranty of
4
But see
title."
in/ra,
Chapter IX.
862
doctrine that " a court of law
knows nothing about mort-
l
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 securthe payment of the debt.

This has been carried so
ity for
far in
New York
that an assignee of the
not only subject to the state of accounts
mortgage takes it
between the mort-
gagor and mortgagee,
but, according to the recent decisions,

2
to equities of third persons, and hence in that
even
subject
State, the rule enforced in the cases just cited
with
land
would meet
favor, and it has been there decided that where

conveyed with a covenant of warranty, and a mort-
little
is
gage given
mortgage
is
to secure the
unpaid purchase-money, and the
afterwards foreclosed and the premises sold,
the benefit of the covenants passes to the purchaser, not3

withstanding the mortgage.
4
In a recent case in Massachusetts, moreover, the doctrine 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

was afterwards levied upon by a creditor and sold to
estate
the plaintiff,
who
after
having been evicted by the mort-
suit upon the covenant,

gagee, brought
benefit
the
all
that
when
title
it
was objected
had passed with
the legal estate to the mortgagee, and hence that the plainBut the Court held that although a
tiff could not recover.
was certainly entitled to the benefit of the cove-
mortgagee
316
Poillon v. Martin, 1 Sandford's

see the note to
Ch. (N. Y.) 569
Row v. Dawson, 2 Leading Cases in
1 Per
Bayley, J., in Partridge v.
Bere, 5 Barn. & Aid. 604, 1 Dowl.
&
Ryl. 273; cited in
McGoodwin
361. See Cross

Stephenson, sti^ra, p.
Robinson, 21 Connect. 387, cited
infra.
2 Van Rensselaer v. Stafford,
kins' Ch. (N. Y.)
Van Rensselaer, 9
569
v.
v.
Equity.
3
.
Town
Y.) 545
Hop-
Stafford
v.
Cowen, (N. Y.)
v.
Needham, 3 Paige, (N.

WolAndrews
see also
cott, 16 Barb. S. C.
4 White v.
t>.
(N. Y.) 21.
Whitney, 8 Metcalf,
(Mass.) 81.
363
nants so far as necessary to protect his interest, yet that,

would remain with the equity
subject to this, their benefit
of redemption, and pass with
involuntary alienation, to
"
J.,
our laws," said Shaw, Ch.

delivered the opinion of the
"a mortgage is considered,

between the mortgagor and mortgagee, and so far as it is necessary to
Court,
as
the mortgage as a
full effect to
give
security for the performance of the

condition, as a conveyance in fee;
but
for all other
purposes
it is
whether by voluntary or
1
its
By
who
it,
con-
especially until entry for

condition broken, as a mere charge
or incumbrance, which does not desidered,
Such a course of
purchaser.
equity of redemption was that of an

which covenants real could
estate to
Were it otherwise, in
case of the conveyance of an estate
with the usual covenants of seizin
be annexed.
and warranty, but described

to
subject
to
a mortgage which
grantor stipulates to pay off and
be
the
dis-
charge, and which he accordingly

does pay off and discharge, still the
covenants in futuro and all cove-
seized so far that he
nants running with the land would

No the general
be inoperative.
result of the rules of law upon this
can convey it, subject to the mortgage he may make a second mort-
subject seems to us to be, that a mortgage, though an estate in fee to the
vest the
He
estate
deemed
is
of the
mortgagor.
gage
debts
may be
it
he
is
attached for his
considered as having
power of an
and
mortgagee, to the extent necessary

for his security, is, to all other pur-
necessary to hold otherwise, in order
an estate in the mortgagor;

and the mortgage, except so far as
the rights and security of the mort-
The
to give effect to the mortgage.
interest of the mortgagor is thereby
gagee are concerned, is regarded as

a burden or charge only upon the
all
the
rights
owner, except so far as
regarded as an
estate,
it
may be
though in legal
poses,
estate,
and when removed or
dis-
strictness,
and as against the mortgagee, it is an equity of redemption.

.... These principles are so familiar
charged, it leaves the estate in the

hands of the mortgagor or his grantees, attaching creditor or assignees
it is hardly necessary to multiply authorities in support of them.

In the case of Sumner v. Williams,
in fact or in law, in the
that
8 Mass. 162, in which there was a

great diversity of opinion on some
points, the
conveyance upon which
the covenants were
made
tion as if such
same condimortgage had not ex-
We
are therefore of opinion,

the conveyance from the defendant was the conveyance of an
isted.
that
which covenants real would

and which covenants might
estate to
upon
the face of it, the conveyance of an
equity of redemption, because it was
attach,
described as subject to one mortgage,

which was excepted in the covenants
an
against incumbrances; but it was not

doubted that the conveyance of an
cumbrances, but subject in fact to an
was,
pass with the estate to a grantee or
assignee
Suppose A, holding
estate protected by covenants of

seizin and warranty against all in-
outstanding mortgage, or to some de-
364
decision
is
and
ience,
certainly supported by strong reasons of convenwhere, as in most of our States, the mortgagor
invested with most, if not
all the incidents of

legal as
well as of equitable ownership, it would probably be followed. So where premises are conveyed in mortgage, with
is
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
equity of reattached by C, his cred-
to B, afterwards
his
demption is
itor, and in due time and in legal
form, this equity of redemption is
sold at auction on execution, and
conveyed to D by an officer's deed
;
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, according to their respective rights in
the estate. It is incident to the es-
and inseparably annexed to it.

B, the mortgagee, being first in time,
would be first in right, so far as neetate,
essary to his security as mortgagee

is deemed seized of the estate,
he
and of course
to the
same extent
that he holds the estate, he
is
the
But
assignee of the covenant.
the purchaser at the officer's sale,
purchases the whole estate, subject
to B's mortgage
to the same extent
;
and under the same

he takes the
estate,
the covenant.
limitations that
ho
Should
is
assignee of
enter to
mortgage and actually foreclose, he would hold the

whole benefit of the covenant; but
hold
if
under
his
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 coveIn such
be brought on
nant, as assignee in law.

case, if suit
were
to
the covenant, before either foreclosure or redemption, there might be a

question who would have a right to
what damages the plaintiff

would have a right to recover. But
no such question can arise here, because 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
and
plaintiff by the sheriff's deed
sue, or
It
he alone now has an interest.
may be added, by way of further
illustration,
the
that
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
should he do
stated in his
warranty attending
1
the estate
and
he would be reinright to the covenant of

so,
Lockwood
v.
it."
Sturdevant, 6 Con-
nect. 373.
"Mortgage deeds,"
Hosmer, Ch. J., who delivered
opinion, "generally,
if
said
the
not univer-
365
And
even where the mortgagee
is
considered in a court
of law as the holder of the legal estate, so as to hecome

entitled to the benefit of all the covenants which pass with
owner of the equity of redemption,

to the interposition of equity is
of
latter
the
the
right
yet
This was well
sufficiently obvious upon general principles.
to the exclusion of the
it,
exemplified in the recent case in England of Thornton v.

1
Court, where the plaintiff having purchased of the defendant 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
defendant
the
the
upon
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
This
premises remaining in him.
was a bar to the plaintiff'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
the mortgage debt and of
it was in full satisfaction of

demand which the mortgagee
that
all
might have against the defendant under the covenant conare secured
sally,
by covenants of
and the equity of redemption

extinguished by release or fore-
title,
is
mortgage title, guarded by covenants,

is the
plaintiff's only security, and it
would be flagrantly unjust and in
opposition to general convenience to
In the event of a release

from the mortgagor, it cannot be
presumed to have been the intention
should merge and the plaintiff be
of the parties to extinguish the morttitle, and in both events, of
pie,
closure.
gage
release
and
foreclosure,
it
would be
unjust and inconvenient to hold this

as legal doctrine.
The title to the
estate
tive,
may be
and of
cussion
is
found fatally defec-
this the case

full
under disThat
illustration.
the debts secured
by the mortgage
should faithfully be paid was the
intention of both parties, and to this
end the release was executed. The
31*
hold
that
the
title
by mortgage
Upon the same princiupon decree of foreclosure, the

mortgagee would be without remedy
remediless.
if his title
and
should prove defective,"
this decision
was approved and
followed in the late case of Lloyd v.

Quimby, 5 Ohio State K. 264. See
also
Andrews
v.
Wolcott, 16 Barb,
S. C. (N. Y.) 21.

l
17 Jurist, (March, 1853,)

Law & Eq. R. 231.
17 Eng.
151;
366
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 defendfor a reference to a Master to assess the damages,
ant
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 covenant, and directed an action at law to be brought by the
plaintiff,
which the defendant should be restrained from
in
by pleading, evidence or otherwise,
in his defence,
setting up
the mortgage executed
lease of the covenant.
"
The defendant
in
by the
this
case,"
Knight Bruce, L. J., "entered into a covenant for the peacesaid Sir
able enjoyment, by the plaintiff, of

an estate which the defendant sold
The
to him.
his
plaintiff
purchase-money,
having paid
entered into
The
possession accordingly.
plaintiff,
or the indorsed re-
plain-
whose
been broken.
nantor
covenant
The
has
thus
defendant, the
aware of this,
covenantor, being
applies to the mortgagee, in
whom
legal estate, as J have said

a legal estate carrying with it, of
was the
course, the whole right to sue
the covenant
and pays him
off,
on
ac-
tiff
then mortgages his property once

or twice, as he was entitled to do,
quiring thereby the right the mortgagee had, and takes at the same
so parting with the legal estate and

with it the legal right to bring an
time an acknowledgment from the
mortgagee that the payment
damages but he became

to redeem the property, and
full
to reinstate himself in the fullness of
my
action of
entitled
his original
things,
is
in
In
right.
this state
an adverse or paramount
asserted,
and the
possession,
plaintiff,
defends
of
title
being
himself
at
law unsuccessfully. The paramount

claim, which was adverse to all the
plaintiff's
plaintiff
rights,
is
succeeds,
evicted.
and the
No man
can
doubt, that, in that state of circumstances, the plaintiff has a right to

recover some damages, some substantial
damages,
from
the
cove-
of
all
is
in
demands upon the cove-
nant, thereby creating, according to

present opinion, a case of accord
and
satisfaction,
sible for
covenant.
rendering it imposto be sued on the
him ever
The
plaintiff, therefore,
without remedy in a
court of law by the act of the deis
left entirely
fendant, and he comes to the Court

asking (whether in a perfect form or
a matter unimportant) for an

damages either here or
in a court of law, wlm-li lu would
have plainly had a right to have asnot
is
-inent of
sessed in a court of law, but for tlu
367
has been already stated that where one has parted

with all his interest in the land, he parts also with all right
It
which run with
to or control over the covenants
it,
and
it
covenants made
necessarily follows that a release of those
ineffectual
as
will
be
such
against
wholly
after
conveyance?
the purchaser as a second conveyance of the land itself
would
be.
right acquired by the defendant.

confess, if that be as I believe it
I
is,
the true state of things, there appears

be only one course to be taken.
pleading, or in evidence or otherwise, the deed or deeds of mortgage
executed
by the
or
plaintiff,
the
to
memorandum
There is a right in the mortgagee,

or the person to whom the mortgage
has been transferred, to payment of
gage deed of the 25th of April, 1842,

and it
in the pleadings mentioned
every shilling of
interest
his
advance, with
also be as-
and there must
sured to the plaintiff a right to ascertain the amount of damages to which
he
is
entitled at law.
damages
seems
to
The amount
cannot, I think,
is
ordered that execution in the said
action do not issue without the leave
tions
and
costs
till
the said action.
of
be the opinion of my learnbe ascertained by

also,
.Reserve further direc-
of this Court.
and that
ed brother,
indorsed on the mort-
Supra, p. 359.
For the effect of a release of the

covenants made by one who is at the
time the owner of the land, see
us without the consent of both parties to the litigation.

Perhaps, even
infra, p. 371.
both parties consented, we might

decline to take upon ourselves such
503, infra, p. 372
if
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
" The
in the case
his
:
plaintiff,
by
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 deliver the declaration in such action
within three weeks from the date of
trial
decree, and to proceed to the

of the said action at Chester with
due
diligence,
this
after the trial of
Liberty to apply."
Middlemore v. Goodale, Cro. Car.

Chase v. Weston,
12 N. Hamp. 413
Crooker v. Jew8
29 Maine, 527
Prescott v. Hobbs,
30 Id. 346, and see the provisions of
the Revised Statutes of Maine, cited
Alexander v. Schriesupra, p. 343
ell,
ber, 13 Missouri, 271

v.
405.
Cook,
193,
ogous
Cunningham
Barb. S. C. (N. Y.)

The recent case of Lewis v.
Knight,
13
was
Iredell's
decided
Law, (N. Car.)

upon an analA man and his
principle.
wife, seized in her right, sold land to
Harrison by a conveyance deficient
as to the private examination of the
ordered that the
and which, therefore, only passed the husband's life estate.

The
defendant be restrained from setting

up, in his defence to such action, by
purchaser resold, with a general covenant of warranty to Howerton, who
it is
wife,
368
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
between themselves, and
it
would seem that
by a deed which contained a clause,

assigning "all the covenants in the
sheriff, goes into possession,

evicted by title paramount
he has a cause of action, but the arto sue
is, he has no covenant
and
is
gument
on and Green has a covenant, but
;
no cause of action, for he has not

been evicted. So the covenantor escapes from his obligation, and cannot
be sued by either. Again, is it rea-
upon under execution against

Howerton, and some months after was
sold at sheriff's sale and purchased
levied
who continued
England,
of 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
plaintiff,
in
surdity of the idea, take this very

The plaintiff, under the deed
case.
sold again to Green, in April, 1842,
by the
of course be binding as
latter, will
in
first
possession until the death of the
vendor, when he was evicted by the
sonable or right, that a debtor finding

bound by executions of
his estate
heirs of the wife, and brought covenant against the executor of HarriIt was objected to his recovery
son.
that the deed from Howerton to
prior teste, should have the power to

sever from the estate, covenants an-
to pass the
by the estate, thus stripped naked,"

would sell for nothing, and his credit-
Green not only professed

estate,
nexed thereto for its protection, and

assign them to a third person, where"
but expressly passed the cove-
nant of warranty and that although

it was overreached in regard to the
ors be defrauded ?
estate,
by the
sheriff's sale
and deed,
ed without the principal.
If
the
principal does not pass, how can the

incident pass ?
They are insepara-
Can
the substance pass without

the shadow, or the shadow without
ble.
the substance ?
There
is
no author-
ity or reason to
support the proposition, that a covenant annexed to an

estate and running with it, can be
severed and assigned so as to be pass-
and restrained by itself,

and thereby give an independent
cause of action. To show the abed by
itself
it
has been frequently held

may be a competent
that a vendor
yet that this could not affect the as-
signment of the covenant, the benefit

of which had passed to Green.
" this cannot
"
But," said the Court,
be so. The incident cannot be pass-
Thus
"
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. 467;

Clark v. Johnson, 5 Day, (Conn.) 3 73,
(overruling Abby v. Goodrich, 3 Id.
433) Van Hoesen v. Benham, 15
Wendell, (N. Y.) 165 Ford v. Walsworth, 19 Id. 834
Cunningham v.
;
Barbour, (N. Y.) 405;

Getchell, 82 Maine,
Field v. Snell, 4 Gushing,
Knight,
Littlefield
392;
v.
(Mass.) 504; Lawrence t>. St'iiu-r,

4 Sneed, (Tenn.) 52 Arnold v. MrNeill, 17 Arkansas, 185; Cooper v.
Granberry, 33 Mississippi, 117; of
course, without such a release a
;

the burden of a covenant cannot be
369
removed otherwise than
that creating it,

by an instrument of equal solemnity with
upon the application of the maxim, quo modo ligatur, eodem
modo dissolvitur. 1 On this side of the Atlantic, however,
decisions to the effect that a parol

of a sealed contract is
dispensation with the performance
that although the contract itself
the
valid ;
there have been
many
ground
upon
cannot be dissolved unless by a specialty, yet that the rights

2
proceeding from it may be varied or released by parol.
the agreement between the
covenantor and the covenantee as respects the dispensation
of the covenants or alteration of the rights which they con-
But whatever may have been
fer,
it
New York
has been decided in
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
were entered
latter
into,
of which he had no notice.
vendor would not be a competent

witness, Elliott v. Boreu, 2 Sneed,
(Tenn.) 663, unless his interest were
equally balanced,
Robb
v.
Lefevre, 7
Clarke, (Iowa,) 150, or unless he had
conveyed without covenants
Doe
v.
Cassiday, 9 Indiana, 66.

1
Rogers
Kaye
v.
Payne, 2 Wilson, 376

1 Taunton, 428
Hunt, 8 Id. 596 Harris
v.
Waghorn,
Cord we nt
v.
Man. & Grang. 405,

note (a) of Sergeant Manning to May
v. Taylor, 6 Id. 262
West v. Blake-
v.
Goodwyn,
way, 2 Id. 729.

2 United States v.
Howell, 3 Wash.
C. C. R. 620 Fleming v. Gilbert, 3
;
Johnson, 528
Langworthy v. Smith,
Dearborn
2 Wendell, (N. Y.) 587

v.
Cross, 7
Cowen, (N. Y.) 48 Leavitt

;
Savage, 16 Maine, 72; Marshall v.

Craig, 1 Bibb, (Ken.) 379. Many of
In
any acts done under its authority,

and some of the earlier English cases
were in harmony with those just cited
for
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 per1 Roll.
formance and waiver of
(the evi-
it
dence of which must always rest in

parol), were equivalent to actual
The later English

performance.
cases however, enforce a more technical 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
United
will be a bar to an action.
Shaw
v.
States
the cases suggest the analogy between

such a parol dispensation and a license
Kurd, 3 Bibb, (Ken.) 371 Note on

"License" in 2 Am. Leading Cases;
Note to Cumber v. Wane, in 1
to exercise
dominion over land, which,
while unrevoked,
is
a justification
v.
Howell, supra
v.
370
1
Jones, premises which were subject to a mortgage were conveyed with covenants of warranty and for
quiet enjoyment, and in a suit on these covenants by an
v.
Suydam
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
of the consideration,
assume and pay the mortgage as part

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
and that "
to allow a secret
agreement in oppoof
a
covenant
running with the
plain import
land, to control and annul it in the hands of a bond fide
itself,"
sition to the
would be a fraud upon such assignee which the

law would not tolerate," and in the subsequent case of
assignee,
Greenvault
v.
was held
it
Davis,
decision
this
that
as
was approved, and

covenantor and
between
although
covenantee the former might, in mitigation of damages,
show the consideration to have been actually less than that
expressed in the deed, yet such evidence was inadmissible in
an action brought by the assignee of the covenantee. 3 So,
too, in
a case before the
where a
certain
New York
bond was determined
Court of Chancery,
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 beneof the covenant,
fit
and the doctrine of these cases has
been very recently recognized and applied

1
Hunt v. Orwig,
10 Wendell, (N. Y.) 180.
24
(N.Y.) 648.
But see Martin u. Gordon, 24
84.
Hill,
'
Georgia, 536, infra.

*
Kellog
v.
Wood, 4
Paige's Ch. R.
578, 616.
5
Brown
v.
Staples, 28 Maine, 583
in others.
1 7
B. Monroe, (Ken.)
v. Schrieber, 13
In Alexander
Missouri, 2 7 1, L'Esperance, the owner

of a large tract, gave a deed of trust
(in effect
a mortgage), to Chouteau,
and then
sold several lots to AK-\;in-
der,
who subsequently conveyed
to
371
But, although a purchaser may not be affected by equities

between the covenantor and covenantee of which he
existin^
e>
has no notice, yet it would seem that a release of such covenants 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
upon those covenants by a subsequent pur1

It has, however, been suggested in a
chaser from him.
action brought
Schrieber,
by deed containing im-
covenants
from
the
words
plied
"
(See as
grant, bargain, and sell."
to this, the case of Alexander v.
Schrieber,
10
460, and
Schrieber mort-
Missouri,
der the purchase of Heisterhagen, he
acceded to
in the
all the rights

imparted
conveyance of Alexander to
Schrieber, including the use of his

in the suit at law, and that if
name
infra, Chapter X.)

gaged the property by deed of trust,
under which it was sold and pur-
any private understanding between

the latter had been ever proven, it
chased by Heisterhagen, who afterwards commenced a suit at law in the
the conscience of the former, unless

brought home to him at or before the
name of Schrieber
period of his purchase.
AlexanAlexander ob-
against
der, pending which,
tained from Chouteau a release of the
mortgage. Judgment was however

recovered against him for the amount
consideration-money, and
of the
af-
firmed by the Supreme Court (see

10 Missouri, 460). After the affirmance, Alexander having applied to
Schrieber (the nominal plaintiff and
" and obtained
original covenantee),
a paper from him professing to release the
damages recovered,
so far
would not have been binding upon
rights imparted
by
that
What
the
conveyance
were, has been previously decided by

this Court, in a suit at law between
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 damthe
ages to a sum merely nominal, that

consideration furnishes to our minds
but an additional reason
why it canmay not
as he rightfully could release them,"

(see as to the effect of such a release
be amiss
infra), filed a bill in equity to enjoin
tion (as above) of the general prin-
the judgment, alleging the above

facts, and that at the time of Schrie-
ciples by which this case must be

governed, any suggestion of seeming
from him, the former

was aware of the mortgage, and it
was agreed between them that Alexander should, at a convenient time,
procure its release, and in that case
should not be liable on his covenant.
hardship or inequality between the

parties is, to our minds, sufficiently
The
law."
ber's purchase
said
Court in dismissing the

"
:
We
bill,
are of opinion that un-
not be availed
to
add
here.
It
that in the applica-
answered and repelled by the prompt

and continuous offer of Heisterhagen
reconvey the land to Alexander,
upon payment of the judgment at
to
As
to this, see supra, p. 76.
Thus, in the early case of Mid-
372
"
peculiar
very recent case in Massachusetts, that there are
reasons why such a release might be held to be so closely
connected with the conveyance of real estate as to become a
1
proper subject of record in the registry of deeds j" and if
dlemore v. Goodale, Cro. Car. 503,
" the
defendant, by indenture, enfeoffed J. S. of such lands, and covenanted for himself and
the feoffee his heirs
make
his heirs with
and
assigns to
further assurance
which lands
J. S.
upon request,
conveyed to the
who
brings this action, because the defendant did not levy a

fine upon the plaintiff's request. The
plaintiff,
defendant pleaded release from J. S.,

whom the first covenant was
with
made, and
it
was dated
commencement of
thereupon
the
this
plaintiff
after
suit
the
and
demurred,
all the Court agreed, that the

covenant goes with the land, and
and
as deciding that a covenantee, while

land, might release or
owner of the
annul the covenant, and that the

land would pass to his grantee discharged of
of
Brown
more
its
benefit; but the case
Staples itself decided no

than that when, after the covv.
enant had been annulled, the purchaser bought " with a knowledge of
the facts, he could not
acquire more
extensive rights than the covenantee
had," but in a very recent case in
" If the bond
Georgia it was said,
had been a release, it would, according to Middlemore v. Goodale, Cro.

Car. 503, have extinguished the cov-
assignee at the common

or at leastwise by the stat-
and therefore would have preit from

passing to the purchaser, and this whether she pur-
have the benefit thereof;

secondly, they held that although
the breach was in the time of the
such release;" Martin v. Gordon, 24

Georgia, 536 see this case infra.
that the
law,
ute, shall
release
assignee, yet if the
had been
by the covenantee (who is a party to

the deed, and from whom the plaintiff derives) before any breach, or
before the suit commenced, it had
to the assignee from
been a good bar
But
bringing this writ of covenant.
the breach of the covenant being in
the time of the assignee, for not levying a
fine,
and the action brought by
him, and so attached in his person,

the covenantee cannot release this
nant,
vented
chased
with or without
50.
Field
The
Snell, 4 Cushing, (Mass.)

Court, in deciding that before
v.
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 question arising as to the effect
upon a
subsequent purchase, of recording

such a release. " Treating the release
as a
mere
kind,
or
that judgment should be entered for

the plaintiff." This case was cited
ion,
with approbation in the recent case

of Brown v. Staples, 28 Maine, 503,
of
action wherein the assignee is interested

whereupon, rule was given
:
notice
Dewey,
"
it
release
of an
ordinary
writing obligatory," said

J., who delivered the opin-
would not be a proper sub-
ject for record

deeds. But as
the registry of
ivK-asc of a cove-
in
;\
nant running with the land and
at-

so,
it
would seem
373
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.
2
a former part of this chapter it has been shown
that although all the covenants for title, without distinction,
run with the land until breach, yet that the covenants for
But
in
right to convey and against incumbrances, are,

most of our States, practically deprived of this capacity
by being held to be broken, if at all, as soon as made.
seizin, for
in
Hence, the foregoing remarks must be limited in their aptached to a deed already the subject
of record, there are peculiar reasons
such a release might be held to
be so closely connected with the conveyance of real estate, as to become
why
a proper subject for record in the

If the release maregistry of deeds.
terially affects the title
in real estate, or
and
interest
any incidents there-
connected, then such instrument, thus qualifying or releasing

an interest in the estate, or in any
with
covenants connected therewith, that

might be a subject of sale and transfer as incident to a
conveyance of
the land, would, by being duly recorded, give an effectual notice to a
an action instituted in favor of a purchaser taking a conveyance after his

grantor has executed such release,
and
after the release
is
recorded.
It
such case, become necessary

to decide the question, whether such
will, in
release, duly executed and recorded

in the registry of deeds, will effectu-
from the
covenant of warranty, as respects an
ally discharge the grantor
assignee of the land taking the same
subsequently."
1
Littlefield v. Getchell,
32 Maine,
The Court expressed
392.
the opinion that " purchasers are not entitled

to regard the registry as
affording
subsequent purchaser, as a release or
information respecting the rights of

action on covenants contained in the
quitclaim of some portion of the land,

or of some undivided interest in the
itself
a grant of an easement on
the same, of all which latter instruments the record would be effectual
estate, or
notice
to
subsequent purchaser.
These considerations will have their
proper weight, whenever a case arises
upon such covenant of warranty, by
32
deeds recorded," though the decision

was limited to the point that a
release to a covenantor, by a purchaser from him, would be good as
between themselves, so as to render

the former a competent witness for
the latter.
2
Supra, p. 336.

for quiet
plication to the covenants
enjoyment, for further
assurance and of warranty.
But
as respects the three covenants first
remains to be considered the
still
effect
named, there
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,

avoid repetition, that
of,
the same remark
it
when
will
be understood, in order to
the covenant for seizin
is
spoken
applies to the covenant of right to con-
vey and against incumbrances.

As the breach of the covenant for seizin
moment
our States, held to occur at the
of
is,
its
in
many
creation,
of
it
follows that in those States a subsequent assignment of the

land conveys to the purchaser no legal right to sue upon
That right remains in the covenantee
the broken covenant.
and
his personal representatives.
But
in case he has parted
notwithstanding such conveyance, he can,

the
of
condition of things between his purchaser
irrespective
with the land,
if,
and himself, recover damages measured by the consideration money, it would follow that the possession of a covenant for seizin gave much greater rights than the possession of a covenant of warranty, and that one who had sold
the land and received the consideration therefor, could, in
addition, recover
and
any
back the consideration he had himself paid;

he had sold without covenants, without
that, in case
liability
over on his part.
1 The
provisions of the Revised
Statutes of Maine, cited supra, p. 343,
of course except that State from these
remarks.
2
n<
Thus
ticut,
sold
in
Davis
v.
Lyman, 6 Conwho had
249, the defendant,
land with a covenant against
incumbrances, upon being sued by

his covenantee who averred as a
breach the existence of an outstand-
And
if,
on the other hand,
ing mortgage, pleaded that the plainhad conveyed the land to a third
tiff
party
who had
before the suit was
brought released the defendant from

but the
all liability on his covenant
;
Court held that the covenant being

broken as soon as made did not pa-s
with the land to the purchaser, and
that he, therefore, had no right to
release it, and, moreover, that the
375
his technical right of action be allowed to yield him no more

than nominal damages, it would seem that for all practical
was entitled to recover for the injury

occasioned by such fraud, whatever
disposition he afterwards made of the
covenantor's right to recover damages could not be affected by his

It
having parted with the land.
would sci-iii, however, that as the
plaintiff had in this case paid nothing
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-
towards the extinguishment of the
mortgage
his
damages should, accord-
ing to the weight of authority, (supra, p. 134,) have been but nominal. In the recent case, however, in
Massachusetts, of Cornell v. Jack-
mediately after the delivery of the

deed and his release or sale of the
where one who

had received a covenant for seizin,
brought suit upon it after he had
parted with the land to which it
son, 3 Gushing, 509,
related,
"
The
defendant's counsel
property, years after, could not affect

the amount of damages he was before
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."
maintained," said Wilde, J., who

delivered the opinion of the Court,
" that the
is entitled to nom-
grounds of
inal
than upon any analogy to the case of
plaintiff
damages only, because, as it is

said, he has suffered no actual damage, 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 authorIn the case of Medbury v. Watity.

6 Metcalf, 246, it
that one of the plaintiffs
son,
was proved
had sold out
his share of the
property in dispute
for the same amount which he gave
;
was objected that he, having

sustained no loss, could not maintain
and
it
the action for the defendant's fraud-
It
would seem, however, that the

this decision must rest
rather upon their
Medbury
v.
own
intrinsic merit
That was an
Watson.
action for fraudulent representations,

and the Court held that " what the
party sold the property

rule
by which
to
for, is
not the
measure the dam-
otherwise, it might make the

question of fraud to depend upon the
rise or fall of the property in the
ages
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 sustained no injury, because his goods,
though partially damaged by a peril

insured against, have sold, even in
their damaged state, for more than
ulent misrepresentations, by which

the plaintiffs were induced to pur-
their
chase of him the property in question, at a price much exceeding its
moreover, a purchaser took from his

vendor a covenant against a previous
value.
But
it
was decided
that
he
Keith
actual cost."
v.
Day, 15
In the case of
Vermont, 668,
incumbrance, being a rent payable
376
purposes, the covenant for seizin is as useless to one who

has parted with the land to which it related as a covenant
1
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-
Such a dilemma seems, however,
necessarily to
result as a consequence of separating the nominal from the
substantial breach of the covenant for seizin.
tives.
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

2
the civil law, and, in modern times, the common-law courts
3
have, to a great extent, acted upon the same principle, and
He
to the University of Vermont.
then resold part of the land with a
covenant against incumbrances.

It
was held that the covenant being
covenant against all claims, " except

a yearly rent to the University," and
broken as soon as made, he was indeed

entitled to damages, but they could be
no more than nominal, as the defendant would be still liable on the cove-
was held that he could not recover

his vendor damages measured
by the whole value of the incumbrance, as he was under no liability
it
from
to his
own vendee by reason
having excepted
it
of
2
it,
from the opera-
tion of his covenants.

1
v.
Such was the decision
in
Wyman
where land
a mortgage was
Ballard, 12 Mass. 304,
which was subject
to
sold with covenants against incum-
brances and of warranty.
The
nant of warranty to the evicted purchaser.
pur-
chaser, having resold the property to

one who was evicted, sue'd on the
See passim, Story's Eq.
Juris,
1047, &c.; 2 Speuee's Id. 850, &c.;

note to Row v. Dawson, 3 Leading
Cases in Equity, 332.

3 Master v.
Miller, 4 Term, 340;
Welch
v.
and
Wheeler
235,
Y.) 34.
Mandeville,
note,
v.
S.
C.
Wheaton,
Id.
277
Wheeler, 9 Cowen, (N.

hold
still
although they
377
necessary that the original party
it
appear upon the record as the plaintiff, yet they permit

his name to he used hy the party actually damnified and
shall
protect the latter from any fraud upon his rights committed
1
2
hy 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
assignment to a third person,
its
not, at the present day, either in a court of
is
law or equity
suffered to defeat the rights of the assignee in an action

3
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
American courts deem themselves reby authority from getting over it, and adopting the
English
they will at least be prepared to sustain a suit

of the original covenantee, for the benefit of
rule,
name
the
in
if the
that
strained
those claiming under him by purchase. 4

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
of the conveyance,
1
Legh
Riddell
v.
Crooker
Blin
son
654
8
v.
v.
&
Pul.
Moore, 617;
Simons, 529;
Jewell, 29 Maine, 530;

Pierce, 20 Vermont, 25 Johnv.
v.
;
Irby, 8
Dickinson
Grattan,
Humphrey, (Tenn.)
v.
p. 376.
2
expressly assigned at the time
Hoomes's Admrs.
Andrews v.
Pickering, (Mass.) 316
1 Johns. Cas. 411;
Raymond v. Squire, 11 Johns. 47; Suy;
Beecker,
dam
&
Dawson, supra,
p. 867.
Cowan
v.
Dunn
(Tenn.) 314
Mass. 485
Eastman
;
Shields,
v.
v.
Overton,
Snell,
15
Wright, 6
32*
As was done
v.
v.
Court,
in the cases of Col-
Gamble, 10 Missouri, 467;
Lawless
v. Collier,
71
Alexander
p.
Supra,
Welsb. 84; Thornton
lier
v.
Jones, 10 Wendell, (N. Y.)

v.
Clagget, 11 Mees.
Phillips
supra, p. 365.
407; Statute of
Row
v.
180;
Stats, c. 115, supra,

p.
(Va.)
Maine, Rev.
343 note to
Kiddell,
is
would seem that the mere conveyance
Bos.
Legh,
Mannings Cox,
447;
it
19 Id. 480, supra,

v. Schreiber, 13
Id. 271, supra, p, 370; and see the

to this effect in Clark v.
remarks
Swift, 3 Metcalf, (Mass.) 395.
878
be thought to imply a transfer of the covenant, on the general rule that the assignment of the prinof the land
may
draws with
the accessory.
So far, therefore, as the covenants for seizin and for right
to convey are concerned, these principles may, perhaps, serve
cipal
it
to obviate the inconveniences occasioned
by the American
rule that these covenants are incapable of being taken advantage of by an assignee. The name of the original cove-
nantee might appear as
plaintiff*
on the record, and the

be regarded as form-
injury to the party actually damnified
1
ing the measure of damages.
But as respects the covenant against incumbrances, a
difficulty might, it is apprehended, be presented as to the
In declaring upon a breach of the two former
pleadings.
it is
covenants,
sufficient to negative their
words generally, 2
upon the latter, it is necessary to set forth the particumanner in which the incumbrance has been the occasion
but,
lar
The
exercise of equitable juris-
diction in sustaining the rights of an

assignee, when a technical difficulty
stood in his way, has already been

well exemplified by the case in Thorn-
vendor,
it
to inquire
was referred
whether the
to a
Master
testator
had
executed any indemnity against the

claim of dower, and if so, whether
the indemnities were an existing
ton
In
v. Court, cited supra, p. 365.
Kiddell v. Riddell, 7 Simons, 529, a
charge capable of being enforced by
testator covenanted, before his death,
testator's estate
for valuable consideration, to surren-
that the covenants for
der certain copyhold land to the lord
latter
of the
manor
chaser,
for the use of the pur-
and covenanted with the
lat-
ter that he should quietly enjoy, and

that free from all incumbrance. (The
student
this
will,
of course
remember
that
was the usual form of alienation
The next day

of copyhold lands.)
the surrender was made, and some
months afterwards the purchaser recovenanting to surrender in
similar manner. Dower having been
claimed by the widow of the first
sold',
any and what persons against the

and it was objected
;
title
of the
were covenants in gross, by

reason of not being annexed to any
estate at the time they were made,
and therefore incapable of passing
to an assignee ; but the Court held
that even if this were so, yet equity
would compel the covenantee to alhis name to be used in an action

to be brought by a purchaser from
low
See also Murray v. Jayne, 8

Barbour's S. C. (N. Y.) 612, cited
him.
supra, p. 299.
2 s ee
supra, p. 53.
379
and where, therefore, this damage has not been suffered by the plaintiff* on the record, but
by one claiming under him by assignment, and to whose
of
damage
to the purchaser,
use the action

difficult to
is
it
conceived that
is
it
might be
frame the declaration so as to come within the
rule referred to.
As
brought,
the right to sue in the
name
of the original cove-
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
nantor
upon a subsequent purchaser from the

the case of a covenant of warranty, whose
serious in their effect

latter,
than in
benefit passes, if at
all,
as a strictly legal right, and not as
For the former covenant, being broken as

is at once a chose in action, and as such, even
transmissible at all to an assignee, must be taken by him
a mere equity.
soon as made,
if
subject to
it
all
the equities between the original parties
and
would, therefore, seem to follow, that a release of a cove-
made by
the covenantee, bond fide and for a

valuable consideration, and before the covenantor has notice
nant for seizin,
of the conveyance of the land, will protect the latter against

all claiming under the covenantee, whether with or without
notice of such release.
Thus
in the case of
Thornton
It
v.
Court, cited supra, p. 365, the plaintiil"s counsel, in

arguing that his
had no remedy, at law, under

the circumstances of the case, urged,
that " in an action at law in the name
client
of the mortgagee, the remedy would

for in such action,
be' inadequate
;
the mortgagee (the nominal plaincould not allege in his declaratiff,)
and therefore could not prove

that he had sustained any costs in
is
suggested, however,
plaintiff in this suit
is
that,
entitled to such
and would have recovered them

at law if he could have sued in his
own name."
2 Hence it was
held, in the recent
costs,
case of Proctor
v.
Thrall, 22 Ver-
mont, 262, that where a> covenantee,

by reason of having received a release from the holder of the para-
mount incumbrance, was thereby
dis-
defending the action of ejectment, to
abled from suing on the covenant

against iucumbrances, his assignee
could have no greater rights, and
But the
hence that equity would not enforce
tion
which he was no party.
380
upon general principles, such would not be the case, unless

1
the release were for a valuable consideration, nor if the
2
covenantee had notice of the conveyance of the land.
an agreement by which,
An-
in consider-
Reservoir Co.
v.
Chase, 14 Connect.
ation of such release, the releasor

should succeed to the rights of the
123; Bulkley
v.
Landon, 3
covenantee.
Bartlett
The
following extract from the

notes to the case of Row v. Dawson,
Parker
3 Leading Cases in Equity, 376,

be referred to as illustrative of
" Courts of
said
230; Anderson v. Miller, 7 Smedes

& Marsh. 586 Andrews v. Beecker,
'
233,
v.
this.
Story, J., in
law,'
Welch
may
Mandeville,
Wheaton,
in action,
and
afford
the assignee every protection, not inconsistent with the established prin-
and modes of procedure, which

govern tribunals proceeding accordciples
ing to the course of
common
law.
will not, therefore, give effect
to a release,
procured by a covinous
combination with the assignor, to interfere injuriously with the conduct

of any suit brought to enforce the
In accordright passed under it.'
ance with this doctrine, it is thoroughly well established, both in this

country and in England, that a release 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
63
v.
Holdsworth, 4 Dow's P. C.
Payne
407 Legh
;
v.
Rogers,
Douglass,
Bos. & Pul.
v. Legh, 1
Hickey v. Burt, 7 Taunton, 48
Mountstephen v. Brooke, 1 Chitty,
390 Innell v. Newman, 4 Barn. &
Aid. 419 Manning v. Cox, 7 Moore,
617; Barker v. Richardson, 1 Younge
;
447
&
Jervis, 362; Phillips
11 Mees.
&
v.
Claggett,
Wels. 84; Chesnut Hill
83;
Strong,
v.
Kelly, 10
Webb
Smedes
Steele, 13
v.
&
Marsh.
N. Hamp.
Johns. Cases, 411 ; Blake

chanan, 22 Vermont, 548."
1
take cognizance of the assign-
ments of choses
They
84;
v.
Id.
2 Aikens, 373
Pearson, 29 Maine, 9
v.
Strong
v.
Bu-
The above remarks would,
of
course, apply to any covenant, released after breach; and the lan-
guage of the Court,
in
Cunningham
Barbour's S. C. (N. Y.)

405, would seem to agree with the
The deposition taken in the text.
v.
Knight,
fendant, in an action on a covenant

of warranty given by him, offered as
a witness, a prior vendor who had
conveyed the land with a similar

covenant and to render him competent, executed to him a release of the
also
covenant ; and the Court, in holding

the witness competent, said, " At the
time of giving the release, the defendant had a contingent right of
If he
action against the witness.
should be evicted by the result of
this
suit,
absolute,
that right would become

and would be forever dis-
charged by this release. The covenant could never pass to any subsequent purchaser. If, however, the
recovery should be in favor of the
defendant in
this suit, then the witness
would probably remain
liable
on
his
subsequent owners, but

that very liability would rather trad
to interest him against the defendant,
inasmuch as a recovery against the
covenant
to
381
other consequence of holding the covenant for seizin to be

broken as soon as made would seem to be that after the
from the execution of the deed, the

lapse of twenty years
that the covenant had been satiscommon-law
presumption
fied or released
would
arise,
even
covenant did not
if the
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
3
been an actual breach.
There
is
not
room
for the
same
conflict of authority as
of the covenant for

respects the right to take advantage
the
between
exists
as
further assurance,
English and American cases with regard to the covenant for seizin, as although
sometimes said that the former covenant is broken by a
it is
demand and
yet
it
refusal to execute the deed of further assurance,
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
the Court held, that if the ultimate

defendant, after the giving of the
release, could not affect the witness
injuriously, but would forever terminate his liability." In this case,
apart from the probable fact that the

release was not for value, it will be
perceived that it was executed after

the releasee had notice of the convey-
ance of the land by his releasor. So,

in Alexander v. Schreiber, 13 Missouri, 271, cited supra, p. 370,
it
will
be observed, that when the release

was given, the covenantor had notice
that his covenantee had parted with
all his interest in the land, and the release itself was, therefore, so inopera-
In King
suffered.
v.
Jones,
damage had been
live that
it
sus-
was not even mentioned
in the opinion of the Court,

l Stewart v.
West, 2 Harris, (14
Penn. State K.) 338, 339 Heath v.
;
Whidden, 24 Maine, 383

v.
390; Rev.
c.
Jenkins
Hopkins, 9 Pickering, (Mass.) 544.

2 Clark v.
Swift, 3 Metcalf, (Mass.)
120,
Stats, of Massachusetts,
7;
Webber
v.
Webber,
Greenleaf, (Me.) 138; Pierce

Johnson, 4 Vermont, 255; Bird
6
v.
v.
Smith, 3 English, (Ark.) 368.

3 Stewart v.
West, Heath v. AVhidden, supra
Jarman's Conveyanc-
ing, 40*2.
4 5
Taunton, 418, supra, p. 338.

tained
by the ancestor, that
he had
is, if
lost the estate for
want of the further assurance, he alone, or his executor

would have the right to sue ; but that " the
his death,
after
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 respect 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
But as the remedy under the covebefore the assignment.
nant is usually sought in a court of equity,
that no difficulty would arise upon this point.
it is
probable
The covenant of non-claim has already been noticed in a

1
It was there seen, that no distinction
previous chapter.
has, as a general rule, been taken between that covenant
and a covenant of warranty.
In a recent case in Maine,2
however, the application of the general rule that this covenant runs with the land to an assignee, combined with the
operation of the doctrine of estoppel as enforced in some of
our States, would have produced a decision so apparently
opposed to legal principle, that it was deemed necessary to

deny to an assignee the benefit of the covenant of non-claim,
and previous
opposed to such a conclusion, were,

the law as thus held has been
and
therefore, overruled,
decisions,
4
recognized by the later authorities in that State.
has been already said that covenants which possess the

capacity of running with the land do not pass by direct
It
Supra,
Pike
p. 222.
99 White v.Erskine,
leaf,
Galvin, 29 Maine, 187

the dissenting opinion of Wells, J., is
306.
reported in 30 Maine, 539.

* Fairbanks v.
4K3.
v.
Williamson,
Green-
FairfieM,
v. Patten, 33 Maine,
See these eases more partim-
Partridge
larly considered in the next ehapter.
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
former part
of this chapter, in order to prove a want of capacity of
the covenant for seizin for running with the land, has been
in the cases cited in a
no land passes to the assignee, the covenant, which

only passes as an incident to the land, must alike fail of
However forcible this argument may be as
assignment.
that if
applied to the covenant for seizin, it will be observed that

possesses equal force when applied to the covenants for
it
enjoyment and of warranty, and must lead to the
quiet
that
alarming consequence
of the
his
total
loss
covenants for
from them.
The
when
of the land,
title,
a purchaser, by reason
most needed the help of
he would be utterly without aid
question
thus presented deserves con-
sideration.
The argument is not wanting in authority to support it.

In the early case of Noke v. Awder, 2 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
lease
it
without interruption.
came by assignment
to the plaintiff,
From
Abel, the
who, being ousted
by one Robert King, brought an action upon the covenant.

The case was on the point of being adjudged for the plaintiff, 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
8
not broken by a mere tortious
and if
entry of a stranger ;
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
Supra, p. 336.
2 Cro. Eliz. 417.
Supra, p. 165.
384
could only pass as an incident of the estate
this
argu-
ment was successful, and the judgment for the plaintiff

was arrested.
1
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.
being
still
After his death, the lessee,
in possession, assigned the lease to the

plaintiff,
who, being evicted by the party
entitled to the estate after
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
the death of the tenant in
become absolutely void by the death of the tenant in tail, its

assignment by the lessee to the plaintiff* had no operation
" He could neither
whatever.
assign the lease," said Mans" nor
Ch.
interest
under it, because the lease
field,
J.,
any
What right of any sort had the assignee ] If

could
anything,
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
was gone.
it
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
" The
cases are eminently correct.
consequences of this doctrine are very important at the present day.
No inconvenience could arise from it under the old common law, except
3
where we have seen
the case of terms for years,
in
&
4 Bos.
The distinction between
Pull. 162.
latter, the estate
this case
and the recent one of Williams

Burrell, 1 Com. Bench, 402, is, that
in the former the decision was ex.
its
of the assignee did
not become void until after the assignment, and, consequently, there
was a chattel
interest
which passed
pressly put
to the assignee and which was sulHcient to support the covenant; Lcwi-
lease
i>.
upon the ground that the

had become absolutely void by
the death of the lessor before the

assignment to the plaintiff. In the
Campbell, 8 Taunton, 715.

Smith's Lead. Cases; Note to
3 1
Spencer's case.
385
But it
a recovery in Noke v. Awder.
did not apply to conveyances of freeholds ; for as they were
by livery of seizin, an actual estate, although comin defeating
effects
conveyed
mencing by tort, was, in all cases, transferred to the first feoffee, and might pass from him to any subsequent assignee.
Thus, when a feoffment was made, although the feoffor
might have previously had nothing in the land, the feoffee
took an estate of freehold, which was susceptible of being
transferred to a second feoffee, and carrying with it
ranties and covenants made by the original feoffor.
conveyances taking
effect
all
war-
But
in
under the statute of uses, as must
those which are intended to pass an estate of freehold,

and are unaccompanied by livery, nothing passes to the venall
dee, save only the estate actually
the
and
legally possessed by
course, therefore, in the very case in which
to an estate totally fails, and in which the pur-
the vendor.
title
who
Of
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
chaser
has taken
it
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
veyancing, wholly without remedy."

1
Such was the decision
in
North
Carolina, in the case of Nesbit
v.
1 Taylor, 86, where

had, in consideration of
Montgomery,
Cranston
10
paid by
Hugh Montgomery,
Mary Montgomery, then

under age and the wife of Arthur
Newman, conveyed a lot of ground
Some years after,
to the said Mary.
Hugh Montgomery and wife, in con60 paid to them for
sideration of
father of
modern system of conl
quiet enjoyment -without hindrance

from Mary the daughter, and that if
she should at any time enter into the
premises so as to dispossess McConnell, or in any way nullify the sale,

they would repay double the pur-
chase
money with
interest.
There
a covenant for further assurance to be executed by the said
was
also
Mary when
she should arrive at age.
McConnell afterwards conveyed one
the daughter, conveyed

the premises by deed of bargain and
half of the land to Nesbit, who, being

evicted by Anthony and Mary New-
for
man, sued the executors of Hugh
the use of
sale
to
McConnell, covenanting
S3
386
Nor
to meet this
difficulty by the suggespossible
tion that the covenantor is estopped from saying that no
is it
A verdict
Montgomery.
found for the
having been
a motion was
plaintiff,
in arrest of judgment, on the

ground that the covenants in the
deed from Hugh Montgomery to McConnell were covenants in gross and
made
And Taytherefore not assignable.

the opinion of
lor, J., in delivering
the Court arresting the judgment
" It
be laid down as a rule
may
said,
without any exception, that a covenant to run with the land and bind
the assignee must respect the thing
that the act
granted or demised, and
covenanted to be done or omitted

must concern the land or estate conveyed. 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,
of the land, no one would pretend

that an assignee should take the benof such a contract.
efit
Then, can
the case be materially altered by annexing these covenants to a deed of
bargain and
sale, which being a conunder

the statute of uses,
veyance
transfers only what the bargainer
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
this
is
owned by a
third,
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
man
sells
an estate and makes
Mary
the same covenants, provided it appears upon the declaration that he
seizin
had no
his daughter had the complete

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 create
any
privity
The maxim
between the parties
transit terra
cum
onere
the land,
presupposes a transfer of
and when that actually takes place it
forms the
medium
tween the
assignees.
of a privity beUnless, there-
we make a presumption
against
fore,
the plain statements in the declaration, the title of the lot never ceased
in the daughter
Mary, from the time
right.
In both cases the priv-
wanting, which forms the basis

of reciprocal remedies to the par-
ity is
ties."
The
quently
plaintiff,
filed
however, subse-
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 Nesbitu. Brown,

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. 411 Pargeter v. Harris, 7
Cranston conveyed to her. Suppose

the father and mother had entered
into the covenants contained in the
Common Bench, 708; Green v. James,

6 Mees. & Welsby, 656. In Allen v.
deed, by a separate instrument, unaccompanied with any conveyance
Woolley, 1 Blackford, (Ind.) 149, one

leased a fulling mill for a year, cove-

estate passed
by
his
deed
for
will be
it
387
remembered
that
the plaintiff must, in his declaration for a breach of the

covenants for quiet enjoyment or of warranty, aver the
by one lawfully claiming under

therefore contradict his own
he
cannot
and
eviction to have been caused

1
paramount
title,
who
nanting for quiet enjoyment, and the
Court,
lessee covenanting to pay the rent and

to keep it in repair, and on the same
may convey and

for there may be
day the
lessee assigned the lease to the
plaintiff,
who brought
suit against the
and it was
had assigned
the covenants would
lessee for not repairing,
held that
the
if
the lessor
reversion,
have passed with it to the assignee,

but as he only assigned the lease itself, there was no land to which the
covenants could be attached. And
in Beardsley
471,
it
v.
Knight, 4 Vermont,
in order to give
was held that
disseizin.
observed,
"
disseizor
warrant the land,

a fee simple in a
But a person
against
whom
an adversary possession cannot make a warranty which will pass

to an assignee, because he cannot
there
is
convey." In the recent case of Dickinson v. Hoome's Admrs., 8 Grattan,

(Va.) 353-441, the Court seemed to
be of opinion (p. 403), that it was

not necessary that any estate should
pass from the covenantor to the covenantee in order that the covenant
an assignee the right of suit on the

covenants in the deed to his assignor,
the conveyance by the latter must
should pass to an assignee. The case

was one of a devise to six children,
and should any die without issue liv-
be
ing at his death, his estate should be

divided equally among the survivors.
to
sufficient to pass
the legal
title,
and that the covenants would not

pass, if the deed,
by reason of conwas
taining a scroll instead of a seal,

insufficient for that purpose.
Notwithstanding some expressions
One
of these devisees conveyed to a
purchaser, the others joining in a covenant in the deed to warrant and de-
fend the
land against
themselves,
under
Kinney, 3 Randolph,
(Va.) 396, the case itself must not
be deemed to be an authority against
as contingent devisees
the exercise of equitable jurisdiction

under such circumstances. The bill
one against whom the children of

one of these devisees recovered an
was filed by a covenantor against his

covenantee and the heirs of a prior
covenantor, as a bill of peace and quia
undivided share under proceedings
and was dismissed by the Court
father would pass to the second pur-
in
Randolph
timet,
v.
them.
The
and
their
claiming under
purchaser resold the land
father's will,
all
to
in partition (1 Grattan, 302), and it

was held that the covenant of their
because no grounds had been laid for
chaser, so as to entitle
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
junction restraining them from proceeding with their partition.
relief
him
to
an in-
1 Noke v.
Awder, supra, &c.
the cases cited, supra, p. 182.
see
388
averment
in
order to avail himself of the defendant's es-
toppel.
In order, therefore, to avoid these consequences, a decision was made in New York in the case of Beddoe's Executors
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 deThat 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
cisions.
the covenants for quiet enjoyment and of warsaid by the Court that no case in that State
ranty.
had been produced " which denies that these covenants pass
carry with
It
it
was
where the possession merely goes from one to another by

but
deed, and there is afterwards a total failure of title
;
there are several to the contrary. 2
word
take the
most comprehensive meaning, can it be

none, in such a case, to which the covenant
estate in its
said there is
may
Nor when we
attach.
It is said
tion or circumstance in
spect to his property
8
;
by Blackstone to signify the condiwhich the owner stands with reand a mere naked possession is an
imperfect degree of title, which

It
neglect of the real owner.
ownership or
estate-)
ripen into a fee by

in short, an inchoate
may
is,
with which the covenants run, to secure
against a title paramount ; and, in that sense, is assignIt is said, in sevable within the restriction insisted upon.
it
121 Wendell, (N. Y.) 120, per

Cowen, J.
8 Those cited
by the learned Judge
were Withy u. Mumford, 5 Cowen,
(N. Y.) 137; Garlock v. Gloss, Id.
143; Markland v. Crump, 1 Dev. &
Booth u. Starr,
Batt. (N. Car.) 94
;
Connect. 244, 248. These cases,

however, do not decide this, unless
1
Their point is that an

intermediate vendor cannot, in respect of his liability upon the cove-
incidentally.
nant which he himself has given, recover of a prior vendor, without

evicted.
8
first
the damages of the party

See supra, p. 859.
making good
2 Blacks.
Comm.
108.

eral cases, that the covenants of
ment
1
title.
389
warranty and quiet enjoy-
refer emphatically to the possession, and not to the

The meaning is that however defective the title may
be, these covenants are not
When
turbed.
broken
the possession
the latter event transpires, an action
is dis-
till
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 2 was
decided nearly at the same time as Beddoe's Executors v.

Wads worth.
conveyance had been made with covenants
of good right to convey and of warranty, to one under whom
mesne
the plaintiffs claimed as assignees, through several
conveyances.
They
to
yielded
an ouster under
mount, which they clearly showed, but
title
para-
an action
failed, in
against the original covenantor, to prove any actual occupancy or seizin of the land by him at the time of his enter-
On
ing into the covenants.
was
set aside
and
this
new
ground the verdict

trial
"
ordered.
for the
To
plaintiffs
support an action by an assignee on the covenant of warranty,"
said the Court, "it is necessary that the warrantor should
have been seized of the land ; for, by a conveyance without
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

the covenants can attach.
the time of the
making
If,
is
no land
to
which
therefore, the defendant, at
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
3
stated,
is
Waldron
seizin,
which covenant, for the reasons already
wholly unavailable to the

v.
McCarty, 3 Johnson,
471, per Spencer, J.; Kortz

penter, 5 Id. 120.
2 1
Metcalf, (Mass.) 456.
33*
Car-
plaintiffs."
That
is,
On
because the
a sub-
plaintifis
sued as assignees of the original covenantee.
390
1
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 prim 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
and, upon a motion for a new trial, the Supreme

Court held that whatever might be the distinction between
plaintiffs,
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,
disseizin
" for
defendant was in possession, when he conveyed,

claiming to hold the whole land conveyed, he had a good
2
His estate
right to convey his title, whatever it was.
if the
passed by his deed to the grantees, and
all
his covenants
"
and upon the familiar doctrine,

an
actual
though
possession may not amount to a
were binding
that, al-
disseizin
as against the lawful owner, yet it will be good as against

" the defendant had aca mere stranger, it was held that
quired, by possession and occupation, a legal though not an
He was lawfully
indefeasible title to the land in question.
seized and possessed of it against all the world, the lawful
His
owner only excepted.
title,
therefore,
by
his
grant
grantees, and from them and intermediate

passed
to
the plaintiffs, with the covenant of warranty
conveyances
annexed, and for the breach of that covenant the plaintiff's
to his
are well entitled to damages," and judgment was therefore

8
In very recent cases in Misentered upon the verdict.
1
Slater
v.
Rawson,
See
The recent decision
this doctrine,
which
States, attempted
et seq.
is
almost
New England
to be
explained,
in
New York
Poling, 2 Barb. S. C.
306, professed to follow that
of Fowler
peculiar to some of the

supra, p. 24
Metcalf,
(Mass.) 489.
v.
Rep.
Beddoe's Exrs.
of
v.
Wadsworth,
but virtually did not. The case was.

however, overruled on appeal, 6

moreover, this doctrine has been approved and
souri,
Barb.
C.
S.
grounds
Rep.
166,
of decision
and
of the
the
cases
cited in the text approved, as they

were also in the recent case of Dick-
inson
391
v.
Hoome's Admrs., 8 Grat399

and in the recent
tan, (Va.)
case of Lewis
v.
Cook, 13 IredelFs
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
" The defendant's
said,
subject,)
counsel laid
down
the position, that
fol-
Until the eviction, the party has no

it, and after that, it is gone.
This proposition, certainly, cannot
be maintained. " It is not true, that
use for
Howerton had only an estate for the

life of Jones
he was seized of an
estate in fee.
The term of its limitations^ was to him, 'his 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
It
simple.
was good
until the death
a warranty, being a covenant annexed to an estate, could not con-
of Jones, and then it was only wrongful as to the heirs of Mrs. Jones.
As
longer than the estate, and

of
consequently that when the estate
the plaintiff was put an end to by
the heirs of Mrs. Jones at the death
to the rest of the world,
of Jones, the warranty was gone.

admit the position that the war-
it was a
good
Suppose Howerton had died seized could there be
a question that his wife would have
been entitled to dower ? Her estate,
like that of her husband's, would be
gone whenever the estate to
good against every one except the
tinue
We
ranty
is
annexed determines ; for

a mere incident of the estate,
which
it is
fee simple estate.
heirs
of Mrs. Jones.
Or, suppose
and the incident cannot continue
Howerton had continued in possession for more than seven years after
as if there
the death of Jones, can there be a
with war-
question that he would not then have

held a good estate in fee ? This is
it is
longer than the principal
be an estate to A, for
life,
ranty to him and his heirs and assigns,

at the death of A, his estate determines, and the warranty is at an end.
This case
is
put by 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
'
'
'
expires by the
terms of its own limitations.' If there
is an eviction by title paramount, the
it is
spent
is, in one sense, at an end, but

has not determined, so as to deprive
the party of the benefit of his war-
estate
ranty; for if so, a warranty would

never be of any force or effect.
not consistent with his having an estate only for the life of Jones.
The
is
(possibly his Honor fell into
error by not adverting to it,) Jones
purported to convey a fee to Har-
truth
and he purported to convey a

and for the purpose
of propping and fortifying this feesimple estate he binds himself and
rison,
fee to Howerton,
covenant to Howerton,
assigns,' which is anthe estate and runs with it
his heirs in a
'
his heirs
nexed
to
and
'
for
protection against an eviction
title
by
paramount." See also the
its
dissenting
Spruill
v.
opinion of Pearson, J.,

Leary, 13 Iredell, (N. Car.)
392
1
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 class of cases of which Noke v.
In the recent case in Georgia
v. Gordon, 24
Georgia, 536,
419.
of Martin
Benning,
case of
J., after
Noke
v.
quoting in
Awder,
said,
full
the
" 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
"
was considered so entirely an accessory obligation that it could subsist only as an incident to some estate
in the land, this produced no inconvenience in the ancient system of
conveyancing by feoffment and other

similar assurances, which operating
the possession, created by their
force estates de facto (tortious
estates as they were called) sufficient
upon
Massachusetts, or those of some of

the other States of the United States,
own
but those Courts, if one may judge

from the face of their decisions, seem
warranty and carry it

along with the land to all the subsequent successors. In the process of
rather to make the law yield to the

case, than the case to the law. Rawle
on Covenants, 391 et seq. The power

to do this is not given to any Court
of this State.
The English
cases, I
to support the
modes of transwere introduced under the statute

of uses, which operated upon the right
only, and the personal covenants of
time, however, other
fer
superseded in English conveyancing the ancient warranty of the

common law, which, yielding a re-
think, speak the
law of Georgia."
The decision, however, sustained the
recover on
right of the assignee to
title
the covenant of warranty but approved the admission of evidence to
covery in money instead of land, were

for that reason deemed personal cov-
show
enants.
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 authorities established that
subsequent pur-
.
The general doctrine
of the old law as to the real warranty,
.
where no estate passes to which

the warranty can be annexed the
benefit of it does not pass to a subsethat
quent assignee, admitting it to be applicable to the modern covenants for
chasers were affected by the equities
title,
See, however, as to this, supra, p. 869.
present by the American decisions,

that a conveyance by a grantor in
between previous
parties."
Pickson v. Desire, 23 Missouri,

Vancourt v. Moore, 26 Id. 92.
Although the conventional warran1
151
"
ty of the
common
ard, J., in the
law," said Leonof these cases,
first
is
obviated in cases like the
possession
under a claim
of
title
suffipasses an estate to the grantee

cient to carry the covenants to any
subsequent assignee."
2 See
supra, p. 339.
Awder
is
at the head,
cient to carry with
other words,
an assignee,
how
it
what exact amount of

covenants for
small the estate
will vest in
him
3Q3
interest is suffi-
an assignee l in
be which, passing to
title to
may
the benefit of these covenants. 2
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
when
freeholds were conveyed by feoffment with livwith

But at the present day
ery, except
respect to leases.
it is far different, and when, as is
always the case now, a
period
conveyance passes no greater estate than the grantor himit seems the
height of hardship to deny to a subse-
self had,
quent assignee the benefit of that grantor's covenants, because no legal title to the land had passed with which those
covenants could run.
For, then, the more those covenants
are falsified, the better the position of the covenantor
no
estate has passed
from him, he
is
protected on
this
when
very
ground.
When,
therefore, a grantor has received,
by virtue of his
which, if it endure
deed, a possession under color of title,

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
can scarcely be thought
inconsistent with principle to hold that such a possession is
sufficient to convey to
subsequent assignees the benefit of
by assignment, descent or devise,
the covenants for
title
of the original grantor.
1 Thus in Dickinson v. Hoome's

Admrs., 8 Grattan, 374 (cited supra,
was argued,
for the plainthat the contingent interest of
p. 391,)
it
it
the covenant to an assignee, and the
Court went even further, and seemed

be of opinion that it was not nec-
to
should pass
one of several covenantors, dependent
essary that any estate

from the covenantor,
upon another of them dying without

issue, was a sufficient estate to carry
2 See note to
Spencer's case, 1
Smith's Leading Cases, passim.
tiff,
THE OPERATION OF COVENANTS FOR TITLE
3Q4f
CHAPTER
IX.
THE OPERATION OF COVENANTS FOR TITLE BY WAY OF

ESTOPPEL OR REBUTTER. 1
THE
was
far
it
operation of the feudal warranty by
more
of rebutter,
by the remmeans
of
voucher
or
a
warrantia
chartce,
by
efficacious, in every-day use, than
afforded
edy
and upon the
way
effect
of this rebutter in
its
descent upon heirs,
the doctrines of lineal and collateral warranty depended. In

a former chapter,2 an attempt has been made to sketch the
probable origin of collateral warranty, and to refer to the

successive
" until
which parliament imposed upon it,

and operation wer6 reduced to so narrow
restrictions
its effect
a compass as to become, in most respects, a matter of spec3

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
he had
latter
other
had
ranting ancestor.
l
lost,
depended upon the condition that

by descent from the war-
sufficient lands
4
The student may be
"
But, though without assets, he was
profitably
on the subject of estoppel

generally, to the very able and satisfactory note of Mr. Hare to the
Duchess of Kingston's case, 2 Smith's
Leading Cases, from which many
of the remarks and opinions ventured in this chapter have been sug-
referred,
gested.
p.
See supra, Chapter
Charles Butler's note to Co.
365 a
see
also
I.
p. 5.
his note
Litt.
to
p.
373, for almost the only clear exposition to be found of the law of warranty.
*.Co. Litt. 374 b.
BY
WAY OF ESTOPPEL OR REBUTTER.
not bound to insure the
SQ5
of another, yet in case of lineal

warranty, whether assets descended or not, the heir was perpetually barred from claiming the land himself; for, if he
title
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

less justice,
and the same rule was, with
adopted also in respect of collateral warranty,
which likewise, (though no assets descended,) barred the

heir of the warrantor from claiming the land by any collateral
upon the presumption of law, that he might

assets by descent either from or
through
title,
thereafter have
same ancestor."
the
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

2
provided that "if a man alien a tenement that
Gloucester
he holdeth by the law of England, his son shall not be barred by the deed of his father (from whom no heritage to
him descended)
to
demand and
recover,
by writ of mort
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
1
statute of 11
2 Blacks.
Comm.
302.
Hen. VII.
See pas-
sim, Butler's note to Co. Litt. 373 b.
Report of the Pennsylvania CommisEd.
20, invalidated
cent case (Todd's Heirs
all
v.
warTodd's
Heirs, 18 B.Monroe, 144,) arose under

that statute.
husband seized in right
of his wife joined with her in the conveyance of her land by a deed which
sioners, 119.
2 6
c.
I. c. 3.
In Kentucky, a statute passed in

1 798, provided that "if the deed of the
contained a covenant of warranty,

but which, by reason of defective ac-
and his
and if any
heritage descend to the demandant on
knowledgment, was inoperative to

After her death
pass her estate.
the husband married again and died
there were children of
intestate
alienor doth mention that he

heirs be
bound
to warrant,
the side of the alienor, then he shall

for the value of the heritage
be bound
that
is
to
him descended."
A very re-
the second marriage, and his estate

descended equally to both sets of

made by a
ranties
The
children.
tenant in dower, a tenant for
children of the
first
marriage brought ejectment to recover the land which had been their
mother's, but by force of the statute
referred to, failed to recover it, on the
ground that they had received assets
by descent from their father to the
life,
or in
ing then to the reason of the law
and the object
it was
designed to accomplish, it is evident that this defence allowed the purchaser, and
which operated by way of rebutter,
should in equity be regarded as a
value of the land which he had
substantial breach of the

warranty,
and as a satisfaction thereof made
conveyed with warranty. They then

brought suit against the personal
the plaintiffs.
And as they have discharged a liability which was by law
representative of their father for payment, out of the whole of his estate, of
the loss which his breach of warranty
had caused to fall upon them alone.
a charge upon the whole estate, they

have a right to have it thus applied,
full
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 created that there was no example in
;
any of the books
for such
although occasion for
it
an action,
must fre-
quently have arisen, especially be-
tween the heir and the executor.

But the Supreme Court, (per Simp" It is true that
there
son, J.) said,
has been no actual breach of 4he 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 ancestor.
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
by
so that the loss will devolve

equally
upon all the heirs. With respect to

the argument drawn from the absence in the books of any analogous
cases, it is only necessary to remark
that the doctrine of the common law
on the subject of warranty and of
descents was of such a character as
to prevent cases like the present
from
arising and in nearly all the other

States of the Union the 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
plaintiffs right,
however, under their ancestor's covenant 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-
immediately be obliged, by means of

the covenant of warranty, to recompense tin- ni rchaser for the injury he
That value, with interest tlu-reon from the death of their father, is
all that the plaintiffs have a right to,
as they were not entitled to the pos-
Look-
session of the land until that time.
had sustained by the
eviction.
ity.
BY
tail
jointly with her
made
397
husband of lands derived from his an-
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
cestors,
tenant for
either
of any lands coming to any person in rever-
life,
and
sion or remainder, should be void,
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
1
against his heir.

This statute of
Anne
declared to be in force
Their right of action
is
in
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
warranty regulates and determines the extent of the relief to which

the
they are entitled.

" It is not
necessary to decide in
what amount of
some of our
has, in
2
some,
States, been
has been re-enacted
it
defective acknowledgment, the

deed did not pass the wife's estate,
and it was held that the children
its
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
ranty
is
section as to collateral war-
the 21st of the well-known
statute of 4
16,
"for the
required by the statute to bar a re-
amendment of the law and
the better
covery by the heir it may, however,

be remarked that by the common law
administration of justice."
2 In llhode
Island, the 21st section
of the statute of Anne was declared
this action
assets is
the value of the land at the time
it
was conveyed was the criterion of the

damages to which the vendee was entitled for a breach of the
warranty
our law fixes the same criterion, and
;
by Story,
J., in
value of the heritage that must descend to the demandant in order to
remainder
create the bar,
would
have
it
to
would seem that it

be determined by
reference to the law regulating the

liability of the warrantor."
Sisson
v.
Seabury,
English statutesin force in that State;

it was held that where orie
and hence
statute
c.
Stunner, 259, to have been included

in the report made, in 1749, of the
does not specify the
as the
Anne,
who
in fact
was tenant
for life with
to his children,
himself to be tenant in
supposing
made a
tail,
conveyance with warranty for the

purpose of barring the entail according to a local statute, the remaindermen Avere not barred by the war-
In the late case of Chauvin u.

Wagner, 18 Missouri, 553, a husband
and wife seized in her right, con-
ranty contained in that deed, as it

came directly within the provisions
veyed the land with a covenant
for
of the statute of Anne.
reason
of
further
assurance.
By
34
In
Pennsylvania,
however,
al-
398
either literally, or in substance,

though 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
Eshelman's Lessee
in
r.
Hoke,
2 Yeates, 509, a tenant by the courarticles entered

tesy, in fulfilment of
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 himself and his brothers and sisters, and
the father also gave a covenant indorsed 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-
(The reason why this case

come within the statute of
Gloucester was because real assets
had descended to the heirs from the
sylvania.
did not
father.)
In the subsequent case of
while in others, the whole
the rule that a warranty bound only

the heir at common law, in the oper-
by way of reThe analogy between the
ation of a warranty
butter.
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
the heirs
law, and shall not bind
'
that are heirs according to the cus736.

The same rule
tom;' Litt.
applies to land held in borough EngIn the latter inIb.
735.
lish
stance, the case as put
by Littleton
appears extremely hard on the purThe youngest son of the

chaser.
tenant in
tail,
who
discontinued with
warranty, was not barred, although

land to an equal or greater amount
had descended to him from

But the subtle notion of
the descent of the warranty on the
in value
his father.
common law alone, producsuch injurious effects, was got

rid of by an ingenious contrivance
heir at
tive of
for the
promotion of justice. Although
Jourdan v. Jourdan, 9 Serg. & Rawle,

28, it was also held that a collateral
the customary heir was not considered

directly liable on the warranty, yet
warranty barred the heirs of the war-
he was held so by reason of the inheritance see Coke on Litt. 376 a;
apparently to escape
from the hardship of the decision, it
was also determined that such war-
rantor
but,
ranty descended only upon the eldest son, as heir at
common
law,
and
hence did not rebut his brothers and

In a note, however, to the
sisters.
case of Paxson v. Lefferts, 3 Rawle,
67 (of which the remainder has been
quoted supra, p. 2f7), it was said:
" In this
country, where descents are
and inwould ensue from applying
and either by being directly vouched

by the warrantee, or by being vouched
by the heir at common law, in case
the latter alone had been vouched
(either of which courses was at the
election of the warrantee), the cus-
tomary heir could be rendered liable.

See Robinson on Gavi-lkind, 127
Leonard, 112; Cro. Jac. 218; Co.

Litt. 12 a; Mr. Ilirgrave's Notes,
1
The
partible, great inconvenience
(1).
justice
double force in the case of a rebut-
principle
applies
with
BY
399
common-law doctrine of lineal and collateral warranty

2
deemed inapplicable to our system of jurisprudence.
concerned
is
was. a collateral war-
It cannot be conceived that a

gavelkind heir, or the youngest son
in the case of borough English, who
ranty without assets, and therefore

by virtue of the statute of Anne, he
the warrantee were
would thus be made responsible if

evicted by a
said
stranger, should not be rebutted in

case he claimed the land himself,
trine of collateral warranty as applicable to the case. If Davison were
when
and demanding the land, he

would be estopped by his deed. So
if his sole heir were suing for it, she
would be estopped, being privy both
The warranty
in blood and estate.
of her ancestor has descended upon
her, and (as the case finds) with as-
ter.
the warrantee could thus cir-
cuitously recover the same land from

him afterwards. In the case of Jourv. Jourdan, 9
Serg. & Rawle,
268, the attention of the Court was
drawn only to the general rule, with-
dan
out
is
its
qualification.
note.
It
sel for
the
is
believed that
plaintiff' in
sued his researches a
and
That decision
chief source of the
the
if
present
the coun-
error had purlittle
laid the authorities
further,
before the
Court, the result of the case would
have been
different."
In the case of Bates
v. Norcross,
17 Pickering, (Mass.) 14, the plaintiff' in an action of
ejectment deduced
a perfect
ises
title to
himself in the premdefendant
in question, but the
proved that the
plaintiff's wife
was
the sole heiress of one who, though
without
title,
had purported
to sell
it
But the Court

was not rebutted.
" We do not consider the doc:
living
sets of greater
This
value than the land.
a case of lineal warranty with

assets, so far as the daughter, sole
heir, and wife of the demandant is
is
She at the time of her

was
undoubtedly liable, and
marriage
her liability devolved upon the husband and wife. If he was to be conconcerned.
sidered a purchaser for the valuable

consideration of marriage of all that
came to the
He and his
wife,
wife
it was cum onere.

became and were
seized of the real estate in her right,

and he took the personal estate absolutely, but subject to all the liabilrespond to the warranty of the
the same land by a deed which contained a covenant of warranty, and
ancestor.
urged that as this warranty would

descend upon the plaintiff's wife, who
recover, the tenant would have an

action to recover back the value, and
had received assets by descent out of

which she would be obliged to make
the judgment and execution would

be against the husband and the wife,
good the warranty of her
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
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
ity to
If the
demandant were
to
eventually to refund the value. .

was contended for the demandant
.
It
would not be
prevented where there were a numthat circuity of action
400
Unless where the
by
statute, its
of warranty was thus restrained

benefit enured to him who had received it,
effect
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

descent
according to
common
law, to one heir.
called
upon
would be
if
to cases
the
We
of
English
are not
what the law

there were more heirs
to decide
of the warrantor than one.
Accord-
Dane's Abridgment, 493,

would seem that no one can
7,
claim an interest against his own
warranty, or against one descended
upon him and others, where the prin-
and use of the estate such an interand title during the marriage as
enables him to control it He has a
;
est
freehold interest in her dower, determinable 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
ing to 4
it
ciple of rebutter, or circuity of action 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 Island, 43, a widow entitled to dower

in the estate of her deceased husband
married a second time.
estate of the first
by
The
real
husband was sold
his administrator for the
payment
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
The
statute
Anne was
of
New York
enacted in
re-
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
that " a
xii.
28),
a tenant for
life
is
declared
(tit.
warranty made by
shall not, by descend-
ing or coming to a person in remainder or reversion, bar or affect his

title,
and a
not, in
collateral
warranty
shall
case, bar or affect a title
any
not derived from the person making

the warranty."
This was modified
In
from the Rev. Stat. of 1847.
North Carolina, the statute of Anne

was re-enacted by the Revised Statutes of 1836, ch. 43,
v.
see
Parker, 12 Iredell, 129.
v.
Williams,
Id. 509,
it
Moore
In Flynn
was held
In an action of dower
brought by the husband and wife
against the purchaser from the former, it was held that they were estopped by his covenants from claiming
where one to whom an estate

had been devised with an executory
dower during the continuance of
would be barred either with or

assets, and whether the warranty was lineal or collateral. In
of warranty.
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

" That is
true," said
estopped her.
the Court, " but the husband by the
marriage gains a right to the possession
that
devise over in case of his death with-
out issue, should sell the same with a

covenant of general warranty, his
heirs
without
the
subsequent case of Spruill v.

Leary, 13 Iredell, 225, a testator devised his estate to his four sons and
their heirs,
and
at the death of
any
of them without issue his share was
BY
401
both as a means of redress and as a defence against the

warrantor and his heirs, and its principle in this respect was
no doubt originally founded upon the desire to prevent the

action which would arise if the warrantor or his
circuity of
were allowed
heirs
to
regain possession of the land
as
of a warranthey would immediately be obliged, by means

ts
the
to
go
made
survivors.
partition,
The
sons
and afterwards one
of them conveyed his share to a purchaser 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

" It is an arhis heirs, barred them.
and hard
tificial
Ch.
rule," said Ruffin,

" the
practical operation of
J.,
which
man
at
to
this
sell
day
is
to enable
one
another's land without
compensation, directly or indirectly,

which is not agreeable to the reason
and
justice of
modern
law.
But
nevertheless the law because
it
it is
was
brother subject to a condition in favor

of another brother who died first
without issue, leaving the
v.
Myers
ditional limitation or
vise,
fee,
because William Jones was
with warranty bar the taker of the

second fee without assets descended,
For a reference
Randolph, 549
Rev. Code,
1849,
tit.
33,
Norman
c.
c.
heirs will warrant
He had
an estate
him and his heirs in possession

with an executory devise over in fee,
and consequently his warranty is not
to
one of those made void by the act,

as the warranty of an ancestor who
had no estate of inheritance in possession 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*
v.
Cunning-
Acts of
7,
when
pass or assume,
if
what
by which
and
his
purports to
anything descends
his heirs
for the value of
785,
the deed of
the alienor mentions that he
from him,
21); Code of
116,
enacted that "
tance, but had the fee simple in possession at the time he entered into
.
99,
it is
the Virginia
to
Statutes on this subject, the student

may refer to Urquhart v. Clark, 2
not simply tenant for life, nor entitied to the bare right to the inheri-
the warranty.
executory de-
by which a fee is limited after a

could not by bargain and sale
(1
Anne
Busbee,
v.
For
not within the statute of
Craig,
Leary was distinctly

overruled, and it was held that the
taker of the first fee, under a con169, Spruill
ham, 5 Grattan, 63
is
taker
case of
undoubtedly so anciently, and the

legislature has not seen fit to alter it.
it
first
whereby the latter had both

the estate and the condition to which
it was
and in the recent
subject
his heir,
what
it
shall
is
be barred
so descended
or liable for such value."

2 " The statute of
Anne," says
Chancellor Kent, " does not appear
have been generally or formally

re-enacted in our American statute
to
laws, because the law of lineal
and
warranty never has been

generally adopted in our American
4
Commentaries,
jurisprudence."
collateral
469.
402

char tee i to restore
tia
its
value to the party from
whom
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
1
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

" because a
paiS) and was called an estoppel or conclusion,
man's own act or acceptance stoppeth or closeth up his
mouth
to allege or plead the truth."
This was the ordinary and personal
But
effect
of an estoppel
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
by
deed.
it
had
also a
no
any after-acquired
title,
title
would enure
to the latter
by
him in the
him by the
direct operation of law, and become vested in

same manner as if it had originally passed to
conveyance.
There were two
classes of cases in
which an
estate thus
by estoppel. The first was where the mode

was
a feoffment, a fine or a common recovery.
of assurance
Such was their solemnity and high character, that they
the feoffor or
always passed an actual estate, and de vested
conusor not only of what he then had, but of every estate
actually passed
Though
referred
to,
as regards the effect just

there was a similarity be-
tween them, a rebutter being

respect
Litt.
" a
852
kind of estoppel
in this
"
;
Co.
b.
2 Co. Litt.
352
a.
"
The
reason
therefore he ought not to contradict

it.
Secondly, as the law cannot be
known
the facts are ascertained,
till
so neither
can the truth of them be
found out by evidence; and therefore

it is reasonable that some evidence
estoppels are allowed," says Mr.

Butler, in his note to this passage,
" seems to be these
No man ought
should be allowed of so high and conelusive a nature as to admit of no
anything but the truth for

his defence, and what he has alleged
once is to be presumed true, and
tidn of this
is
of
v.
why
to allege
contradictory proof."
Temple
56, infra.
shown
An
illustm
in the late base
Parti-idgr,
I-'
Main.-.
BY
403
1
which he might
thereafter,
by any
possibility, acquire,
and
The
principle has been applied in modern times.
second class of assurances which passed an after-acquired
this
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
estate
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. 3
the
parties
Sheppard's Touch. 204-210

a, 49 a; Plovvden, 423.
Co.
Litt.9
2 Doe d. Christmas v.
Oliver, 5
Man. & Ryl. 202; S. C. 10 Barn. &
181
Cress.
&
Barn.
Helps v. Hereford, 2
Aid. 242 Doe d. Thomas v.
;
See
Jones, 1 Crompt. & Jerv. 528.
the examination of Messrs. Humphries,
Coote,
&c.,
Prop. Report.
3 Bac. Abr.
Real
the
before
Real
Commissioners,
Property
tit.
Leases, 296-441
the cases cited supra, p. 268.
In
Williams
on
Real
Property,
329, the law on this subject is thus

" The circumstance that a
noticed
:
lease for years was anciently nothing

more that a mere contract, explains
a curious point of law relating to the

of leases for years which
creation
Rawlyns' case, 4 Coke, 53 Weale v.

Lower, Pollexfen, GO Smith v. Low,
1
Trevivan v. LawAtkyns, 490
rence,
between the relation of landand tenant and that of vendor

and vendee is clearly recognized in
tinction
lord
Salkeld, 27G
Wells
v.
Aus-
Manning & Granger, 701 McKensie v. The City of Lexington, 4

The doctrine of
Dana, (Ken ) 129.
tin, 7
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 interest, for a term of years, both lessor
and lessee will be estopped during
the term or forbidden to deny the
validity
of the lease.
This might
indeed, one which naturally arises from the peculiarity of

the relation between landlord and
have been expected. But the law

goes further, and holds that if the
tenant, to which also other branches
lease acquire the lands he has so let,

the lease which before operated only
these cases
is,
of the law of estoppel apply.

The
estoppel in pain 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-
lessor should at
by
any time during the
estoppel, shall
now take
effect
out
of the newly acquired estate of the
and shall become for all purposes a regular estate for a term of
lessor,
years."
404<
These modes of assurance seem

ones by which an after-acquired
direct operation of law under
have been the only
to
was
title
by
actually passed
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-
" and therefore
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
ally had,
it
and
discharged,"
1
if
"
65
Grant,"
Touch.
Hobart, 45
240; Lampet's case, 10 Coke, 48.
2 Brooke's Abr. tit. "
Estoppel,"
Perkins,
WivePs
pi.
146
tit.
case,
Doe
d.
Lumley
v.
Scarbo-
rough, 3 Adolph. & Ellis, 2. Thus

in the case of Right d. Jefferys v.
Bucknell, 2 Barn.
Thomas
&
Adolph. 278,
Jarvis the elder, having con-
tracted to purchase certain premises,

was let into possession by order of
mortgage
and
tered and mortgaged them by indentures of lease and release to the les-
the cases
sors of the plaintiff', reciting that he

was legally or equitably entitled there-
2 B.
& Stu.
& Aid.
and
others, 3
lutely,
years
and
le-
rightfully, abso-
solely seized, &c.
after, the legal title
Some
was con-
veyed to Thomas Jarvis the younger,

whereby he became seized of the
he afterwards
legal estate, which
conveyed by mortgage
for a valuable
consideration, to Bucknell, the defendant, who had no notice of the
prior mortgage,
title
and
to
whom
all
the
deeds were delivered, and upon
ejectment being brought by the first

mortgagee against the second, it was
question
the lessors of the plaintiff, the legal

estate acquired by him since their
from doing so
Co. Litt 352
equitably,
The
mortgagor, Thomas Jarvis the younger, could set up as a defence against
conveyance, devised them to his son,

Thomas Jarvis the younger, who en-
gally or
"
on which the Court took time to consider," said Lord Tenterden, who
delivered the opinion, "was, whether
the defendant, claiming under the
for
and covenanting that he was
And
held that at law the plaintiff was not
the Court of Chancery, and afterwards, without having received a
tp,
a release. 2
this applied equally to
has been argued
it
them, that he, as representing the
mortgagor, Thomas Jarvis, is estopped
Sim.
and
for this purpose,
a, Litt.
sect.
of Bensley
519
242
Helps
693,
v.
Hereford,
Goodtitle
Term, 365
and
Burdon, 2
v.
v.
Morse
Goodtitle
Goodtitle v.
v. Bailey, Cowper, 597
Morgan, 1 Term, 755 Doe d. Christmas v. Oliver, 10 B. & C. 181 Tre;
Lawrence, 1 Salk. 276 S.

C. 2 Lord Raym. 1048, and Taylor
v. Needham, 2 Taunton, 278, were
cited.
Of these cases, none are apvivan
v.
plicable to the point in question except Goodtitle v. Morgan, and Bens-
ley
v.
ently)
Doe
Burdon (of which more presand Helps w. Hereford, and
y.
Oliver.
The
last
two are
cases of estoppels arising out of line*

levied before any interest vested, and
405
BY WAY OF ESTOPPEL OR REBUTTER.
as the conveyances in use at the present clay, which derive

deeds
their efficacy hy virtue of the statute of uses, viz.
:
there
is
no doubt that a
erate by
present
fine may opof estoppel, but the

not the case of a fine. In
way
is
693, Littleton, speaking with

reference to the doctrine of remitter,
sect.
This is a remitter to him, if

such taking of the estate be not by
deed indented, or by matter of record,
'
says,
'
which shall conclude or estop him

and in Lord Coke's commentary upon
this passage, a deed indented is disthis
tinguished from a deed poll in
particular of remitter, for the deed
the feoffbr,
poll is only the deed of
donor, and lessor, but the deed indented is the deed of both parties,
and therefore as well the taker as the
In 352 a, Lord
giver is concluded.
Coke divides estoppels into three
;
the second of which he thus
sorts,
'
By matter in writing as by
deed indented, by making of an acquittance by deed indented or deed
defines
poll,
by defeasancy by deed indented
or deed
And
there are
The bishop, by indenture, demiseth

the parsonage for forty years, to begin after the death of the incumbent.
The dean and chapter confirmeth
the
incumbent
shall not conclude, for
that he
ation
had nothing
till
Litt. is
Now
mortgagor, Thomas Jarvis, the

younger, had only an equitable infor the reterest, is partly admitted
the
cital states, in
lawfully or equitably entitled, and

the covenant for title is to the same
effect.
At
recital a
all
and exceptions
It is a rule that an esengrafted.

toppel should be certain to every intent, 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
made
is
'
put
An
impropriation
after the death of
bent to a bishop and
an incum-
his successors.
events, there
want of
is
in this
that certainty of
which is necessary to make

an estoppel. Lord Holt lays it down
in Salter r. Kidley, 1 Shower, 59,
that a general recital is not an estopallegation
it
though a
this rule there are
the alternative, that he
is
is.
qualifications
impropri-
in his Digest, Estoppel (E. 2.)

in the case at bar, the very truth that
fact
But upon
appeareth
This passage from Co.

adopted by Ch. B. Comyns
pel,
many
it
in the
cumbent.'
many
poll.
after the death of the in-
other authorities to show that estoppel may be by any indenture or deed
poll.'
it
This demise
dieth.
a particular
recital of
And upon
this,
the
judgment
of the Lord Chancellor in the recent
of Bensley v. Burden, which

was relied upon by the counsel for
case
the lessors of the plaintiff, proceeded.

The deed of release in that case
that Francis Tweedie, the
younger, was, subject to his father's
life estate, seized or
possessed of, or
recited,
well entitled to, the lands and tenements thereinafter mentioned in reversion or remainder, and by the
deed he granted and released this
remainder, and covenanted that he
was seized of it for an indefeasible
estate of inheritance.
Master of the
The present
Rolls, then
Vice-Chan-
406
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
Perk.
65, that
where a son and
decided, according to the report in 2

Sim. & Stu. 519, held that this was
heir joins in a grant in the lifetime

of his father, while he has neither
an estoppel, upon the general ground

that it was a deed indented, and that
granted, the grant
possession nor
matter
in the
right
is
utterly void,
the nature of the conveyance, namely
and nothing
and release, made no difference.

The Lord Chancellor confirmed this
nothing but what the

releasor lawfully had, and he had no
legal title in the premises at the time
lease
judgment
put
it
on
(5 Russel's Ch. Rep.) but

this solely, that it was an
allegation of a particular fact by

which the party making it was con-
cluded (see
and
infra).
this case supra, p. 190,
That
case, therefore,
greatly differed from the present, in

which there is no certain precise averment 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
of opinion, also, that the

release whereby T. Jarvis granted,
bargained, sold, aliened, remised, released, &c., the premises, does not,
by mere force of these words, amount

Littleton lays it
to an estoppel.
sect.
446, that
'
no right pas-
by a release, but the right which

the releasor hath at the time of the
For if there be a
release made.
seth
So here,
passes.
if
the
pass
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
Abr.
146
tit.
Estoppel,
pi.
his
10 Vin.
Abr. Estoppel, M.
" The case was
put, in argument,
on another ground for the lessors of
the
estoppel.
"We are
down,
release
plaintiff,
within the
namely, that
common
it
was
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 recogBut we are
nized in modern times.
father
of opinion that it does not apply to

the present case.
Here the defendant Bucknell claims as the purchaser
disseized,
for a valuable consideration without
and a son, and the father be

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
lawfully enter upon the possesTo the same

sion of the disseizor.'
may
effect is Wivel's case,
Hob. 45, and
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
is not
questioned, nor sought
be disturbed by the delem -e which
Bucknell sets up. This case much
which
to

they have no greater efficacy by
way
407
of estoppel, than the
common-law grant or release. 1

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.
v. Morwhere a second
resembles that of Goodtitle

gan,
Term,
755,
v.
Simpson,
Richardson's Eq. (S.
and see
71,
Car.)
Doe
infra.
v.
mortgagee, without notice, who got

in the legal title by taking an assign-
Pott, Douglas, 720, decided by Lord

Mansfield in 1781, was a case where
ment, from a trustee and the mort-
a lord of a
gagor, of an outstanding term assigned to attend the inheritance, was
the
holden entitled to a legal preference

first mortgagee.
There,
as, here, it might be said that he
manor having mortgaged
afterwards purchased
copyhold lands held of this manor,
and took surrenders of them and it
manor,
against the
was held that by the mortgage of the

"
manor," all its consequences and
was bound by the same conclusion

as the mortgagor, and should not
incidents passed
the
question
right
the
of
prior
But the legal title prevailed there, and so we think it
manor be-
that the
ing mortgaged in fee, the mortgagor

could not afterwards sever the copy-
would have dimin-
mortgagee.
holds, because that
ought here."
ished the security, " for the mortgagee

had a right to the services, quitrents,
The
student will observe that this
argument was based
solely
on the
escheats, forfeitures
1
as presented in
rights of the parties
a court of law, and that
it
is
ex-
interpressly said that the equitable

est which passed to the lessors of the
nor
was " not
plaintiff
sought to
questioned
be disturbed by the de-
fence which Bucknell set up." The

case is, therefore, distinguishable from
that class in which, in equity, the acquisition of a subsequent estate will
be held
to operate in favor of
a prior
an executory agreement to convey, whenever the intention of the parties is

apparent, and sustained by a sufficient
Seaborne v. Powell,
consideration
mortgagee or purchaser,
as
Vernon, 11
supra, p. 192;
Lamar
and other casual-
ties."
Kennedy
v.
Skeer,
Watts,
(Pa.) 98.
8 Goodtitle
v.
Bailey, Cowper, 559
Errington, 8 Scott, 210 Bow;
Doe
v.
man
278
Taylor, 2 Adolph. & Ellis,

v. Astor, 4 Peters, 86
v.
Carver
Kearney
v.
Van
Rensellaer,
How-
325; Smith v. Pendleton, 19

Connect. 107; McBurney v. Cutler,
18 Barbour, (N. Y.) 208; Root v.
ard,
Crock,
v.
Barr, (Pa.) 380
Kinsman
Loomis, 11 Ohio, 478; Williams
v.
Presbyterian Society, 1 Ohio State

R. 478; Den v. Brewer, Coxe, (N.
Decker v. Caskey, 2 Green's

Ch. (N. J.) 449; Fitzhugh's Heirs
v.
Tyler, 9 B. Monroe, (Ken.) 561
J.) 172;
408
There was then an ordinary ^nd an extraordinary effect

The one was personal in its charattached to an estoppel.
acter, like the rebutter in a warranty, and estopped the
grantor and his heirs from doing or alleging anything conand effect of his sealed instrument.
The
trary to the tenor
other, besides this quality, possessed the high function of
or future, vested
actually transferring every estate, present
or contingent, to the feoffee, conusee, or lessee, according as
the
mode
a lease
of assurance employed was a feoffment, a fine or

and this effect was peculiar to them alone, there
being no authority
that
it
in
any of the English books
was produced by any other
to
show
species of conveyance.
This brief sketch of some of the principal features of

by deed has been here presented as
the doctrine of estoppel
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 propeffect of an

estoppel in its
erly attributable only to the
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
estate in
his deed
from claiming any after-acquired
3
it.
Williams v. Claiborne, 1 Smedes &

Marsh. Ch. (Miss.) 365.
l
Except the case of Bensley v.
Burdon, 2 Sim. & Stu. 519; which
has since been overruled.
See
infra.
See Doe v. Oliver, 5 Man. &

Ryl. 102; S. C. 10 Barn. & Cress. 181
2 Smith's Leading Cases, 417.
The
9
quotation from Littleton,
44G, will
be presently rd'cnvd to.

3 Jackson v.
Bull, 1 Johns. Cases,
81
Jackson v. Murray, 12 Johns.

Jackson v. Bull was decided
201.
by Kent,
upon the following au-
J.,
Ischam
v. Morrice, Cro.
Car. 110; Co. Litt. 45 a, 47 b, 352
a, b
llawlyns' case, 4 Coke, 53 a
thorities:
Piggot v. Earl of Salisbury, 2 M.l.

115; Trevivan r. Lawrence, 6 Id.
258; S. C.
Salic.
2Z6; Palim-i-
r.
Nick r.
inwhich
3
P.
Wins.
373,
Edwards,
Kkins, 2
Raymond, 1551
BY
409
But whatever may have been the grounds of these decisions, it was shortly afterwards held in the same State, that
where one conveyed land ,to which he had no title, by deed
of bargain and sale without a covenant of warranty, a
subsequently acquired title would not enure to the benefit
of the bargainee even as against the bargainor and his
1
heirs, and in subsequent and recent cases, both there and
elsewhere, the same doctrine has been adopted and
now be considered as well settled. 2
deed
at
by
man
justify the conclusion arrived
bounty lands,
that learned Judge, that " if a

make a lease of land by inden-
the late war."
ture which
is
not
his,
or levy a fine
of an estate not vested, and afterwards purchases the land, he shall

notwithstanding be bound by his
deed, and not be permitted to aver
he had nothing, and the stranger to

whom he sells will equally be estopped," but the difference between
the modes of assurance here referred
for his services during
The deed contained
no covenants
of the
act
may
In 1806, an
was passed,
to
be
letters-patent
for
title.
legislature
authorizing
" for the
granted to Boise
quantity
of two hundred acres of land in the
tract set apart for the use of the line
of this State, serving in the
army of
the United States," and the land was
The
accordingly patented to him.
Judge ruled that the deed from Boise
ute of uses has already been noticed.
to the lessor of the plaintiff,

being
prior in date to the patent, did not
Nelson, J., in speaking (in Pelletreau v. Jackson, 11 Wendell, 119,)

of Jackson v. Bull, and Jackson v.
having passed for the defendant, the

case was submitted, on a motion for
to,
and conveyances under the
Murray,
said,
either of
stat-
" It does not

appear in
it
If
to
the
doctrine
of
them
though
may be sound, I apprehend there
would be difficulty in reconciling
not,
them with
The
them whether there was a
covenant of warranty or not.
&c.
entitle
tjie
rule in Littleton
"
;
rule thus referred to will
new
him
trial,
to recover,
and a verdict
without argument,
Avas said, "
when
The deed from Boise
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 ewe, would
pass
unless there was a warranty in the
deed, in which last case it would
;
be presently noticed.
l Jackson d. McCrackin v.
Wright,
14 Johns. 193. The facts were these
operate as an estoppel, for avoiding

circuity of action."
Peter Boise by deed poll in 1794,
(N. Y.) 613; Jackson v. Winslow,

9 Id. 18
Jackson v. Bradford, 4
Wendell, (N. Y.) 622; Pelletreau
granted, bargained, sold and quitclaimed to the lessor of the plain till',
" all
that military right
or
parcel of land granted to him

35
as
in
fee,
Jackson
v.
Hubble,
Cowen,
?'.
Jackson, 11 Id. 110; Jackson v.

Id. 178
Varick v. Ed-
Waldron, 13
410
however, caused by the presence in

it has been decided
different result is,
the deed of a covenant of warranty, and

1 Hoffman's Ch. R. (N. Y.)
382; 11 Paige, (N. Y.) 290; Edwards v. Varick, 5 Denio, (N. Y.)
665 (these five cases were, in fact,
the same controversy which arose
wards,
under the
will of
ferred to below)
Medcef Eden,
Sparrow
re-
v.
KingY.) 247;
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.
Subsequently to his death, the executors
assigned a mortgage on the land devised to Joseph, which the testator
had purchased in
man, 1 Comstock, (N.

Comstock v. Smith, 13 Pickering,
(Mass.) 116; Blanchardv. Brooks,
protection against an adverse title,

to the lessor of the
plaintiff, and re-
12 Id. 47, 66 Taft
leased
(Mass.)
v.
Fox
504;
Stevens, 3 Gray,
v.
Widgery, 4
title,
his lifetime as
and conveyed all their right,

and interest in the land, to him
Greenleaf, (Me.) 218 Ham v. Ham,

(thus, in
Shepley, (Me.) 351
in fee.
of involuntary alienation, as
where a creditor levies upon land of
ment, and the question was whether

the executory devise over to the sur-
his debtor, the latter is not
vivor, took effect in his favor, or in

that of the plaintiff, which necessarily
cases
to
title
subsequently acquired
Freeman v. Thayer, 29 Maine,
369)
estopped
assert
Dart
v.
Dart,
Connect. 256
Dodsvvell v.Buchanan, 3 Leigh, (Va.)

365; Kinsman v. Loomis, 11 Ohio,
475
Bell
Twilight, 6 Foster, (N.

Tillotsoh v. Kennedy, 5
v.
H.) 401
Alabama, 413
;
Darst, 14
v. BalIllinois, 308, overruling Frisby
This is
lance, 2 Oilman, (111.) 141.
;
Frink
v.
strikingly illustrated," says
in his note to the

ton's case, 2
Mr. Hare,
Duchess of Kings-
Smith's Leading Cases,

"
the case of Pel-
by
(5th Am. ed.)
letreau v. Jackson, 11 Wendell, 110,
13 Id. 178, where
authoritatively
it
was
finally
and
decided, after
long
that the
and protracted litigation,

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 Medcef hia executors, and devised the
Joseph Eden died shortly
the execution
after
of this assign-
depended on whether
it passed by
the assignment, while yet contingent.
It was contended on behalf of the
that
contingent interests
released although they
could not be granted, and that the
assignee,
might
be
assignment should be construed as a

grant, or bargain and sale, for the
purpose of passing the estate which

was vested in Joseph, and as a release for that of extinguishing
executory interest of Medcef.
it
the
But
was held by the Court, on the au-
thority of Lampet's case, 10 Coke,

48, that the rule which permits con-
does
tingent interests to be released,
not apply when the uncertainty exas well as to the
tends to the
person
and that as it was necessauncertain which of the devi-i s
estate,
rily
would
be
the
survivor
until
the
his
event, neither could cxtingui>h
the
before
a
ivli-asi-,
by
interest
death of the other.
This decision

by a numerous
411
class of cases that, as a general rule,
any
by virtue of the warranty,
the party claiming under such conveyance, with the same
after-acquired estate will enure,

to
was subsequently confirmed by the

Court of Errors, in Jackson v. Waldron, and again in another form on
an appeal from Chancery, in Edwards
Varick, 5 Denio, 665. This

case, when taken in connection with
v.
those already cited, fully establishes
legal estate or interest therein, at the
time of the sale and conveyance, but

after such sale and conveyance, the
vendor
become possessed
shall
of,
and
confirmed in the legal estate to the

land or real estate, so sold and conit
veyed,
be taken and held to
shall
and
can pass by deed,

either at common law, or under the
statute, which is not vested in inter-
be in
and that
a deed which fails as a conveyance
cannot be set up as an estoppel,
even as against the grantor and
taken, and shall be as valid as if the

grantor or vendor had the legal estate
no
that
estate
est at the time of the grant,
those claiming under him by descent

or purchase."
The Revised Statutes of Arkansas,
" If
however, provide that
any per-
son shall convey any real estate, by

deed purporting to convey the same,
by fee simple absolute, or any less
estate, and shall not, at the time of
such conveyance, have the legal estate
in
such lands, but shall after-
trust,
for the use of the
grantee or vendee, and the conveyance aforesaid shall be held and
or interest at the time of said sale or
conveyance." The Revised Statutes

of 1845 provide that " If any person
convey any real estate, by conveyance purporting to convey the

same in fee simple absolute, and shall
shall
not, at the time of such conveyance,

have the legal estate in such real
estate, but shall afterwards acquire
the same,
the
legal
subse-
estate
quently acquired shall immediately

pass to the grantee, and such con-
wards acquire the same, the legal or
veyance
equitable estate afterwards acquired

shall immediately pass to the gran-
legal estate had been in the grantor

at the time of the conveyance." Rev.
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." Rev. Stats.

c. 37,
Cocke
v.
Brogan, 5 Pike,
699.
So, in Missouri, the Revised Statutes of 1825 declared, "If any per-
son shall
sell
and convey
to
another
by deed or conveyance purporting to

convey an estate in fee simple absolute, in any tract of land or real
estate, lying and being in this State,
and not then being possessed of the
Stats.
be as valid as
shall
1845,
c.
32,
3,
p.
if
219.
such
See
13 Missouri, 379;
Valle v. Clemens, 18 Id. 490
Geyer
v. Girard, 22 Id. 120. In Illinois, the
v.
Bogy
Shoab,
Revised Statutes of 1833, p. 131, are

expressed in precisely similar language Frink v. Darst, 14 Illinois,
;
308.
In the
Norcum
late case in
Missouri of
Gatv, 19 Missouri, 65, it

" No
is said,
principle of the Spanish law is known, making an afterv.
acquired title enure to the benefit of

a former grantee."

Thus where
effect as if it had been originally passed by it.
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

1
So where an
mortgagee took that moiety by estoppel.
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
upon him, it immediately enured by estop2

and the same doctrine has been often
estate devolved
pel to the grantee,
3
recognized and applied.
Somes
Skinner, 3 Pickering,
v.
Eastman,
Metcalf,
Jackson
Winslow,
v.
Cowen,
Wood, 4 Paige,
(N. Y.) 578; Sparrow v. Kingman,
I Comstock, (N. Y.) 247; Rathbun
(N. Y.) 18
v.
Kellog
v.
S. C.
Rathbun, 6 Barbour,
(Conn.) 479;
Connect. 226
Id.
Cadwell, 19
Sherwood
Lawry
476;
v.
v.
Barlow,
Williams,
13
Baxter v. Bradbury, 20
260; Pike v. Galvin, 29 Id. 183,
*Maine, 281
Id.
Dudleys
;
(N.
Dimon, 5 Day,
v.
107; Hoyt
Y.)
(overruling as to the operation of the

particular covenant there employed,
v. Williamson, 7 Greenv. Thurlow, 31
Williams
96)
Maine, 395 Kimball v. Blaisdell, 5
Fairbanks
leaf,
N. Hamp. 533
Id.
389
Gough
156
(Mass.) 121.
3
(Mass.) 30
Rhode
(Mass.) 52.
2 Trull v.
Wark
Thornclike
ter,
(N. H.) 454
II
Id.
v.
Willard, 13
Norris, 4 Fos-
v.
Jewell
v.
Porter,
39; Middlebury College

Cheney, 1 Vermont, 349; Blake
Blanchard
Tucker, 12 Id. 44
;
v.
(see Potter
Island, 44,
v.
Newcomer,
Davis y. Keller,
Leigh, (Va.) 376
5 Rich. Eq. (S. Car.) 434 Massie
v. Sebastian, 4 Bibb,
(Ken.) 436;
;
Logan
Logan
433
Dana, (Ken.) 76
Monroe, (Ken.)
v.
Moore,
v.
Steel, 4 B.
Dickerson
Perry
v.
v. Talbot, 14 Id. 64 ;
Kline, 13 Id. 124 Rigg v.
;
Cook, 4 Gilman, (111.) 348 Robertson v. Gaines, 2 Humphrey, (Tenn.)

383 Kennedy v. McCartney, 4 Por;
ter,
(Alab.) 141
Tillotson
v.
Ken-
nedy, 5 Alabama, 41 3 Bean v. Welsh,

17 Id. 772; O'Bannon v. Paramour,
;
24 Georgia, 493 Terret v. Taylor,

Mason v. Munmstrr,
9 Cranch, 52
;
v.
Thayer, 6 Gushing,
v.
Wheaton, 455. In Reeder v. Cr.-ii.ir,

Me Cord, (S. Car.) 411, and Har-
v. Morris, 1 McLean,
does not appear wlu'thrr tlu-rc
was a warranty or not, but it was
44,
Gibbs
Funk
mer's Lessee
316; Patterson v.
Pease, 5 Ohio, 190; Scott v. DougBarton v. Morris, 15
lass, 7 Id. 227
Id. 408
Dos well v. Buchanan, 3
Wa.lc
413
400)
Bell, 1 Zabriskie, (N. J.)

Moore v. Rake, 2 Dutcher,
(N. J.) 574;

10 Maryland,
v.
Linsley, 6 Metcalf, (Mass.)
Potter, 1
v.
Brooks, 12 Pickering, (Mass.) 47;

v.
v.
supra, p.
it
BY
The ground upon which many of

is
based,
these decisions
are
said to be that of preventing" circuity of action.
held that the after-acquired estate

conclusion
to
which
these
by Wai-
cases tend was thus stated
Wright, 14 Johns. 193; Brown r.

6 Watts, 64
Comstock
M'Cormick,
passed.
The
413
Smith, 13 Pickering, 119.

where an estoppel runs with
v.
And
the
worth, Ch., in the recent case of the

Bank of Utica v. Mersereau, 3 Bar-
operates upon the title, so as

actually to alter the interest in it, in
bour's Ch. (N. Y.) 567.
the hands of the heir or assigns of

the person bound by the estoppel as
"By
the
law, if a grantor who had

interest, or only a defeasible in-
common
no
it
land,
well as in the hands of such person

Thus, if a man by deed in-
terest in the premises granted, con-
himself.
veyed the premises with warranty,

and afterwards obtained an absolute
title to the property, such title immediately became vested in the grantee
dented make a lease of land, reserving rent, which implies a warranty
or his heirs or assigns, by estoppel

Co. Litt. 265 a. And if the grantor,
at the time of the execution of the
or any one claiming title from him

subsequent to such graTit, sought to
recover the premises by virtue of
such after-acquired
the original
title,
grantee or his heirs or assigns, by

virtue of the warranty which ran
with the
the lajid, might plead

such warranty, by way of rebutter or
estoppel, as an absolute bar to the
title to
claim; Co.
la
Ley,
Diet. art.
Litt.
365 a; Termes de
Guaranty, Toml. Law

Rebutter. This principle
tit.
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
on the part of the
lease, if
and the
he afterwards purchases the
and then
land,
lease
a stranger,
subject to the
in as the assignee,
sells it to
the latter will hold
and coming
it
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
47, note 11
L.; Bull
868
52
v.
Somes
Lond. ed.)
Bac. Abr., Warranty,

Wiott, 1 Rolle's Abr.
7
v.
Trevivan
Skinner, 3 Pickering,
v.
Lawrence, 5 Mod-
For, as a covenant of warranty runs with the lands, so as to

give the heirs and assigns of the
ern, 258.
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
vested in the grantor at the time of
to
conveyance from him

with warranty, where the covenant
of warranty was in full force at the
as against
the
lessor,
landlord has no interest in the land
bind that interest by the estoppel,
time when such subsequent
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-
acquired by the grantor
quired estate would pass, although
original
35*
title was
Jackson v.

This has been exemplified in a striking manner in recent
cases in Maine, which have decided that a covenant of nonclaim (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
1
Such a construction
hence that it will create no estoppel.
the covenantor had, since the conveyance, been discharged as a bank-
that,
rupt, the breach of the covenant hav-
to himself, in 1823, the title acquired

in 1829 enured to his benefit; but
ing happened after such discharge.

l Pike v.
Galvin, 29 Maine, 185,
(overruling Fairbanks
v.
Williamson,
7 Greenleaf, 97; see the dissenting
opinion of Mr. Justice Wells, 30
Maine, 539
Ham
and see
v.
Ham,
14 Maine, 355, where Fairbanks
v.
Williamson was virtually denied)

v. Patten, 33 Maine, 483
Loomis v. Pingree, 43 Id. 314. Pike
;
Partridge
v.
Galvin was a very striking illusextent to which the
tration of the
doctrine of estoppel
may
lead.
Ward,
being the owner of certain premises,

agreed, in 1820, by articles, to convey them to Jellison, who entered
into possession, but
who
did not,
it
seems, comply with the condition of

the articles, and in 1823 assigned the
contract to the plaintiff, and on the
same day executed
to
him a release
of the premises, containing a covenant of non-claim. In 1825, Ward
conveyed the premises, inter a/t'a, 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 having had the possession. Under these
circumstances, the plaintiff claimed
by
virtue of the release with
covenant of non-claim, from Jellison
Court held (Wells,
the
J., dissent-
inasmuch as the release

contained no covenant of warranty,
but only a covenant of non-claim, the
ing), that
doctrine of estoppel could not apply.

The covenant could not operate in
"
it was
favor of the
said,
plaintiff,
by
of estoppel, to prevent circuity

of action, for he could maintain no
way
action on that covenant.
Nor could
any other mode, unless there had been found some allegation in the deed, by which the releasor had asserted some matter to be
true, which he must necessarily contradict, and deny to have been true,
if he would claim to be the owner of
the land.
In such case, he would
have been estopped, because the law
so operate in
it
will not permit one who has, in such

a solemn manner, admitted a matter
to
'
be
true, to allege
This,' says
Kent,
'
is
it
to
be
false.
the reason and
foundation of the doctrine of estoppels;' 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
subsequently acquired, unless it

contains a clause of warranty; and
title
then
it
operates by
way
of estoppel

given to this covenant has not, however, been elsewhere
and not
The covenant
otherwise.'
of
tis,
40 Maine,
24, the facts were,
much the same
how-
as those in Trull
non-claim asserts nothing respecting

the past or the present. It is only an
ever,
engagement respecting future con-
One
duct."
father's lifetime all his present and

future claim in his estate, with a cov-
however, to imagine
how a more solemn assertion could
have been made than was contained
It is difficult,
in the covenant referred to, which

" so that neither
the said Jel-
was,
I,
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
way
any
or them, shall, or will
by any
or means, have, claim or demand

right or title to the aforesaid
premises or to any part or parcel

The decision of
thereof forever."
the case was perfectly correct upon
the facts, as under the registry acts,
Jellison's
bound
grantee in
to search the
1833 was not

record for con-
veyances by him prior to 1829, when

Dyer had conveyed to him and the
;
application of the doctrine of estoppel
would have been opposed
theory of these statutes.

time,
it is
difficult to
At
to the
the same
support the au-
thority of the case upon the princiEngland

ples so well settled in
New
and it even became necessary to

overrule some prior decisions in the
same State with respect to the covenant of non-claim, which had been
recognized as law for nearly twenty
years, and had been elsewhere apWells,
proved.
J., in his
dissenting
(published in 30 Maine,
539), adhered, however, to the law
as adopted generally in the Northern
opinion
States,
and was of opinion that the

was entitled to recover. In
plaintiff
the subsequent case of Curtis
v.
Cur-
v.
3 Metcalf, supra, p. 412.

of several sons released in his
Eastman,
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 bringing proceedings for partition after his
father's death.
Loomis v. Pingree, 43 Maine, 314,

" the decision in
it was said that
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
It is
we
should abide by
somewhat singular
it."
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 following from the application of the doctrine of estoppel as held in the class
of cases just cited, been also obliged
to make the same decision as was
pronounced in Pike v. Galvin. An

heir conveyed property with a covenant of non-claim, and afterwards the
estate which he had purported to convey, devolved upen
levied upon and sold
creditor,
and
it
him and was

by a judgment
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
adopted, it being generally considered as synonymous with

a covenant of warranty. 1
So it has been held that where the covenant for seizin
by the transfer
satisfied
is
an actual
to the purchaser, of
though a tortious seizin (as
is
the case in several of the
New
no estoppel will be created by that

where
the covenant of warranty is limSo, too,
the acts of the grantor, and the purchaser would not
England
covenant.
ited to
States),
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
will be
coming within the scope of the covenant, there

no estoppel, and an after-acquired estate will not pass
to the purchaser.
1
121
See Trull
;
Miller
(Mass.) 34
v.
v.
Eastman, 3 Metcalf,
ing that the demandants had no
Ewing, 6 Cushing,
reconveyed
claim and
cited infra.
See supra,
Fox
p.
20
et seq.
Widgery, 4 Greenleaf,
v.
(Me.) 218 Allen v. Say ward, 5 Id.

Doane v. Willcutt, 5 Gray,
231
;
(Mass.) 333.
And
in Missouri,
it
has
been held that the statutory covenants implied by the words " grant,
"
bargain and sell,'* do not operate as
the ancient common-law warranty to
transmit a subsequently-acquired title
to the covenantee, nor do they operate as a rebutter against the grantor
in respect to their obligation as cov-
Chauvin
enants."
v.
Wagner, 19
Missouri, 531.
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

He was afterwards
purchase-money.
disseized by the demandants, who,

pretending that they had a lawful
the
title
to
sold
them
premises, subsequently
At the
to the tenant.
expiration of a year, the latter, find-
to
them
demand
all
and
in
title,
his " right,
to
the
premises," and covenanted to warrant and defend them "against the

lawful claims and demands of all persons 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,
But Wilde, J., in
to their benefit.
delivering the opinion of the Court,
" It is a well-settled
principle
of the common law, that if one consaid
veys lands or other real
estate,
with a
general covenant of warranty against

all lawful claims and demands, he
cannot be allowed to
set
up against
grantee or those cliiminu under

him, any title subsequently arquiivd,
his
either
by
purchase
or
otherwise.
BY
There
is still
417
another qualification to the doctrine of estop-
pel being caused by a covenant of warranty, which
Such new
title will
enure, by
way
of
estoppel, to the use and benefit of his

This
grantee, his heirs and assigns.
principle is founded in equity and

justice, as well as the policy of the
It is just that a party should
not be permitted to hold or recover
law.
an
estate in violation of his
enant and
own
cov-
that
is
He
sive with the grant or release.

agrees to warrant the title granted or
and nothing more. That

only he undertook to assert and
defend.
To extend the covenant
released,
title
further would be to reject or do
large
to
it
away
and to ena general covenant of war-
the restrictive words of
it,
wise policy to repress

litigation and to prevent a circuity of
actions, when better or equal justice
ranty, against the manifest intention

of both parties. The tenant, in cov-
be administered in a single suit.

such a grant with general war-
granted or released premises, must

be understood to refer to the estate
ranty, nothing passes, nor indeed

can possibly pass, excepting the title
which the grantor has at the time of
the grant but he is estopped to set
title sold or released, and not to

the land, because he did not certainly
intend to warrant any estate or title
subsequently obtained by
him, because if he should recover
against his grantee, the grantee in
if
may
By
it is
up a
title
his turn
would be
entitled to
an ac-
tion against the grantor, to recover

the value of the land. The principle
of estoppel, therefore, not only prevents multiplicity of suits, but is sure

to administer strict
and exact justice
the grantee were driven

to his action to recover the value of
whereas,
if
enanting to warrant and defend the
or
Now
not intended to be conveyed.
Waters, after the tenant's quitclaim deed, had evicted the demandants, this
would have been no breach
Or if the
now held under Waters with-
of the tenant's covenant.
tenant
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
the land, exact justice might not be
be no breach of the tenant's covenant.
obtained, because the land might

possibly not be estimated at its just
He did not undertake to convey to demandants an indefeasible
however, the grantee were

not entitled to recover the value of
the land on the grantor's covenant of
nor did he agree

to warrant and defend it against all
claims and demands, but only against
warranty, then in such a case it is

obvious that this species of estoppel
he must be understood
value.
If,
only his
own
title
estate,
those derived from himself, by which

to refer to
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
existing claims or incumbrances,
tenant to set up or plead the title of

Waters. The tenant's covenant is a
restricted covenant,
and
is
co-exten-
but
not to any
title
which he might
and
after-
wards acquire by purchase or otherwise from a stranger Ellis v. Welch,

;
Mass. 250.
no reason
to
There
is,
therefore,
be assigned why the
tenant should not purchase the
title
118
where the deed does
on
its face,
purport to convey an
" the
right, title, and interest"
of the grantor, even although the deed may contain a general covenant of warranty, yet, in cases where that cove-
not,
indefeasible estate, but only
nant
is
held to be limited and restrained by the estate conto warrant a perfect title, the doctrine of
veyed and not
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-
and improvements, although Waters had a paramount

title.
This interest, whatever it was,
possession
passed to the demandants by the ten-
efit.
" It
was then contended by the

demandants' counsel, that, admitting
the tenant
is not estopped by his

covenant of warranty, he is nevertheless estopped by his conveyance
to deny that he had any title in the
land at the time of the conveyance.

This also is a well-established principle of common law Co. Litt. 45, 47
Jackson v. Murray, 12 Johns. 201;
;
Jackson v. Bull, 1 Johns. Cases, 91

Iseham v. Morrice, Cro. Car. 110. But
ant's deed,
had
and
it
was all the title -he

was expected to
to convey, or
convey. If under these circumstances

the demandants could now acquire,
without any consideration, another
by estoppel, we should be compelled to admit that estoppels are as

odious as they are sometimes said to
be. But the doctrine of estoppel aids
title
much
in the administration of jus-
becomes odious only when

misunderstood and misapplied. Nothing can be more just than the doctice
it
the tenant, in his plea, does not deny

that he had any title to the land on
trine of estoppel urged
the contrary he avers that, before

the time of his conveyance, he was
mandants' counsel, when applied to

a conveyance with the general cove-
in
possession
of
the
land
under
Waters, that afterwards the demandants disseized Waters, and being

seized by disseizin, they conveyed to
the tenant all their right and title,
with a covenant of warranty, similar

one contained in his convey-
to the
ance
them.
The demandants,
nant of warranty
doctrine to the
a manifest perversion of the principle
Eastman, 3 Metcalf, (Mass.) 121,

similar decisions were made in
Looniis v. Pingree, 43 Maine, 314
v.
their turn, would be estopped to aver

that they had no title in the land, nor
is there any such averment in the
Bell
a valuable interest
in
the land by
restricted
upon which the doctrine is founded."

This decision was approved in Trull
and
The tenant, at the time

pleadings.
of his reconveyance, might have had
but to apply the
tenant's
conveyance and covenant, would be
in
to
by the de-
401,
Twilight, 6
(where there
v.
opinion);
Tillotson
Foster, (N. H.)

is an elaborate
r.
Alabama, 413; Chauvin

19 Missouri, 553.
Kennedy, 5
r.
\Ya-iirr.
BY

by mere operation of law, an
estoppel in passing,
acquired estate, yet
419
will lose that attribute
it
when
afterit
ap-
convey no greater estate

Thus where in a case in Massa-
intended to
pears that the grantor
than he was possessed
of.
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 warit was held that the deed
ranty and for quiet enjoyment,
vested
his
interest, and the warranty being
conveyed only
not thereby estoponly co-extensive with the grant, he was
ped to claim the contingent interest when it became vested
1
by the happening of the contingency, and this doctrine has
1
Blanchard
v.
Brooks, 12 Picker-
" The
grant in the
ing, (Mass.) 67.
said
deed,"
Shaw, Ch. J., in deliver"
ing the opinion,
title,
and
not of the land

lar estate in
is
of the
the
all
his right,
is
itself, if
own
it,
afterwards acquires
same land or
specific interest,
such acquisition enures to the benefit

of the grantee, because the grantor
of the
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-
right,
land
does not
that
any particuthe land. The warranty
premises, that
land
and
or
itself,
estate granted, and

to estate vested.
all
of
is
interest in the land,
principle is that if any person who in

terms conveys land or any specific
interest in land with warranty, and
is,
must be confined
title,
conveyance of
and interest ,in
certainly sufficient to pass the

the party conveying has
an estate therein,
at the time of the
ranty
right,
is
co-extensive with the estate,

which the deed
or interest,
conveyance, but it passes no estate

which is not then possessed by the
purports to pass. But such warranty

does not apply to the present case.
John Miller and his brothers, when
party; Brown v. Jackson, 9 Wheaton,

The grant in legal effect oper452.
they conveyed to Ball and Day with

warranty against themselves and their
ated only to pass the vested interest,

and not the contingent interest, and
the warranty being co-extensive with
heirs,
the grant, did not extend to the con-
grant and the warranty applied.
tingent interest, and, of course, did

not operate upon it by way of estop-
of Ball and wife,
pel."
So
in Miller v.
ing, (Mass.) 34,
it
Ewing,
was said
Gush"
The
had an
estate
and
interest de-
rived by descent from their father,

and to this, and this alone, both the
to
Day.
So
when they conveyed
But they did not purport
to grant or warrant an estate, which

they might, at a future time, derive
420
been repeatedly and recently confirmed not only in that

1
State but in others.
by descent from their sister Hepzibah Day. They are therefore not estopped by that warranty from claiming this estate by a new and distinct
Blanchard v. Brooks, 1 2 Pickering, 47 Comstock i'. Smith, 13 Id.
116.
The case of Trull v. Eastman,
cited by the defendant, is no authorThe
ity for a contrary doctrine.
deed in that case was a conveyance,
in terms, from one brother to another,
title
of
the estate or interest which the
all
grantor had or which might come to

him by will or heirship, with the
'
clause,
so that neither
There
&c.
I,'
the premises or interest conveyed

was a mere possibility, an expectthe convey-
ancy nothing passed by

ance, but it purported to convey a
future interest to be acquired and
;
exception to the general rule ;

Fitzhugh's Heirs v. Tyler, 9 B, Monroe, 561. In the late case of Brigham
this
Smith, 4 Gray, (Mass.) 297, it was

obviously held that the covenant of
v.
warranty in a conveyance did not

estop the grantor from claiming a
way of necessity over the land conveyed.
There are some further qualifications to the doctrine that the estoppel created by the warranty passes
an after-acquired estate. Thus, it
has been held that when a deed, by
reason of
Lessee
grantor after the estate accrued, from

demanding it. These grants did bind
stated,
Hepzibah, who
never conveyed to anybody her original one fifth, which descended to
fifth
of
her from her father."

l
v. Jones, 27 Maine, 361

Persons unknown, 43 Maine,
Derby
Coe
v.
436; Hall v. Chaff ee, 14 N. Hamp.

326
Wight v. Shaw, 5 Gushing,
;
(Mass.)
56
Devisees,
Lewis
v.
Wyman
Grattan,
v.
Barman's
162
(Va.)
Baird, 3 M'Lean, 78
Valle
v.Clemens, 18 Missouri, 4 90. Where,

however, the deed also contains or
Pease, 5 Ohio, 1,93. So,

was held not to apWheelock v. Henshaw, 19
v.
too, the estoppel
ply in
undivided
imperfect execution, is
the estate and
therefore to support the warranty,

there will be no estoppel ; Patterson's
the warranty was held co extensive

with the grant, and estopped the
all the grantor's own four fifths of the

reversion, but did not extend to the
its
insufficient to pass
345, where, in a case

was agreed by the party entitled to the benefit of the covenant
that the covenantor had no title, so
Pickering,
it
that nothing passed by his deed, as it

said there was estoppel against
estoppel. So it was said in Kennedy
was
M'Cartney, 4 Porter, (Alab.) 158,

" This rule
only applies where the
vendor had no valid title at the time
v.
of executing the deed, and not where

is inhibited from selling, by the
he
letter, spirit
act."
or policy of a legislative
this, supra, p. 31. In
Michael, 4 Sandford's
See as to
Dominick
v.
S. C. (N. Y.) 417, it was left undecided whether a covenant for further
assurance in a void marriage
settk--
estate or interest intended to be con-
ment,. would estop a husband from a

title as tenant
by the courtesy, an u r-
veyed, the case will be taken out of
ed by reason of the srulrnu-nt
refers to a recital of
any particular
lirini:
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 perBurchard v. Ilubbard,
where one without title
conveyed with warranty, and afterwards received a title from the rightSo
void.
in
11 Ohio, 316,
ful
owner, but merely as trustee for
the purpose of transmitting
it
to the
he was before suit was

parties would be all
even, and there would be no obligation in law or morality resting on one
in
which
The
brought.
to
town was
fered to defeat the trust
prietor,
see also
Buckingham's Lessee v. Hanna, 22

Ohio, (2 Ohio State R.) 555, infra,
p. 427.
So
in Stokes
Jones, 21
Alabama, 738, (and see S. C. 18 Id.
734,) it was held that a covinous deed
v.
from father to son, with warranty,

would not pass to the son the afteracquired
creditors.
title
by
estoppel, as against
In Rector
v.
Waugh,
17
After
the
one or more
of the proprietors acquire a new and

distinct title to the land on which the
bonajide purchaser from such rightful owner, it was held that the doctrine of estoppel would not be suf;
another.
indemnify
failure of the first title,
laid off,
and a former pro-
who
has neither contributed,

nor offered to contribute anything
towards the acquisition of the new

title, lays claim to all the lots con-
veyed
him by the deed of
to
parti-
The common law implied no

warranty when partition was made
tion.
between joint tenants and tenants

common. Indeed, by the common
law, partition was not compellable
in
ranty in a partition, was said to be

very harsh in its operation.
The warranty wa?

on
partition among coonly implied
parceners, and only extended to the
land which was the subject of the
number of proprietors
partition.
Missouri, 13, the application of the

doctrine of estoppel to cases of war-
"
of a town, supposing 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
among them.
The
an outstanding
doctrine which makes

title,
bought in by one
joint tenant or tenant in common, enure 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,

The case it-
matter ended here, it would not be

maintained that any one of the pro-
5 Johnson's Ch. 388."
had a cause of action against

the others, as what he recovered on
his warranty he in turn would be com-
the conveyance having omitted the
prietors
him from whom

he had recovered on the warranty he
had given. The different warranties
pelled to refund to
would compensate each other, and it

would be useless to sue, as each party
in the end would be in the situation
36
self
was decided on the ground that
word
heirs,
life
estate only passed
grantee, and that the warranty was only co-extensive with the
to the
estate to
infra,
"
We
which
it
was annexed,
(S.T
437,) the Court saying,

feel no reluctance in
answering
p.
a technical action with a technical

objection."

sonal rebutter merely, and, for the
purpose of avoiding cirof
the
action, prevents
cuity
grantor and his heirs from
up the after-acquired estate, which equity would

1
unquestionably compel them to convey to the prior grantee.
setting
The
other
is,
that the effect of the covenant of

warranty
as if a particular recital or averment had been introduced,

and that the grantor was therefore estopped by his deed
is
from denying
its
efficacy.
Neither of these grounds, however, would give to the rebutter or estoppel the high efficacy of actually
transferring
the after-acquired estate.
The
practical difference
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
purchaser from the grantor.

First, then, as between the purchaser and the grantor and
1
Lewis v. Baird, 3 M'Lean, 80
Henderson v. Overton, 3 Yerger,
(Tcnn.) 397; Chew v. Barnet, 11

Reese v. Smith,
Serg. & Rawle, 389
12 Missouri, 351 Steiner v. Baugh;
2 Jones, (12 Penn. State 11.)

108, and see infra, p. 447.
2 Thus in the recent case of Gordon
man,
Beacham, 24 Georgia, 150, it was

"
Nims, when he made the deed
to Beacham, had no title, but his deed
was an attempt to convey the fee,
and it was a deed with a warranty.
This shows, first, that it was the inv.
said,
tentton that the land, the whole intercst in the land, should
to
Beacham
be conveyed
secondly, that
Beacham
had paid the purchase-money.
Such
being the intention, the consequence

would be that if Nims should after-
wards acquire the title, he would be

to convey it to Beacham, as
much so as if the contract were one
standing in the form of a bond for
title.
Perhaps this would be the consequence even without the warranty
bound
Debar, 2 Cases in Ch. 212

Wright v. Wright, 1 Ves. 409 Noel
v.
Bewley, 3 Simons, 403 Smith r.
Taylor
v.
Baker, 1 Young & Coll. Ch. 223

Jones v. Kearney, 1 Drury & Walsh,
159, cited in llawlc on Covenants
for Title, 428."
BY
would, at first sight, appear to make little difference whether, as between these parties, the after-acquired
his heirs.
It
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
whether the purchaser has the valid

or the only person who has a better title
it
that prevents
ity
The
him from
setting
it
title
is
claim
under a
disabil-
up.
to be this
would seem
practical difference
to
vested in him,
where by
the high operation of an estoppel, the after-acquired estate

of the covenant of warranty, in the
actually vests, by virtue
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 accompanied the covenant of warranty), the plaintiff would be en-
nominal damages only, 2 and thus,
titled to
1 It
was
said in a recent
Ohio, decided since
were
first
written,
"
case in
these remarks
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 disability to
his
use
grant,
to the prejudice of
it
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;" Buckingham's Lessee t>.
Hanna, 22 Ohio, (2 Ohio State R.)
556, in/ro, p. 427.

2
v.
M'Carthy
Legget,
Hill,
(N. Y.) 134 Baxter v. Bradbury,

20 Maine, 260
Cornell v. Jackson,
;
if
the land
had
Gushing, (Mass.) 510; Reese
r.
Smith, 12 Missouri, 344, supra, p. 81.

"
If, indeed," said the Court, in Bean
Welsh, 1 7 Alabama, 773, "an estoppel could not operate as a con veyance,
or as a medium through which the
title would pass to him in whose favor
v.
estoppel works, we might frequently lock up the title in him and
the
his heirs, against
whom
the estoppel
and the party for whose

benefit it was intended, might find
himself without title, and unable to
recover from a mere intruder for if
operated
the after-acquired estate

did not pass to the grantee by means
the
title to
of the estoppel, but it only precluded

the grantor from asserting an after-
acquired
title, it
would be
difficult to

diminished in price, the purchaser would not have the option
it, or to offer to re-convey it and recover its
either to retain
Such a course of
consideration.
a former part of this
decision, as has been said
obviously fastens upon the

purchaser the subsequently acquired title nolens volens, depriving him of the right of election whether to accept it, or
in
treatise,
back upon the covenants in other words, it has virtually the same effect as an injunction restraining him from
Thus in a case in
proceeding at law upon the covenants.
"
on the covenant for seizin in a deed
Maine, in an action
of warranty," the Court below having rejected evidence ofto fall
by the defendant
fered
to
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

and held that the plaintiff by taking a general coveposition,
nant of warranty, not only assented to, but secured and
available to himself all the legal consequences resulting
made
from that covenant, and that having before the commencement of the action acquired the seizin which it was the ob-
see
how he
could recover in eject-
ment from one who had no title. To

show title in another would not enable him to recover, and he, having
none,
To
could not maintain the
suit,
full effect to
give, therefore, the
an estoppel,
it
is
clear, that
it
must
frequently operate to pass the title."

The mistake, however, seems to be in
supposing that the purchaser's rem<-dy is necessarily at
law instead of
a court of equity, or, as was

said by Mr. Hare, in his note to the
Duchess of Kingston's case, 2 Smith's
\H'\\\
in
Leading Cases, to which reference

"
has been so frequently made, There
the
of
can be no doubt
validity of the
conveyances
in
question
in
these
nor perhaps that the

were
estopped from disputgrantors
ing them at law, but it would seem
cases, in equity,
very doubtful whether they should

have been regarded as transferring
the legal title itself, or as doing anything more than entitling the grantees to
come
into i-quity for a con-
veyance.
1
Supra, p. 81
et seq.
11V
425
ject of both covenants to secure, he could be entitled only to
nominal damages.
1
Baxter
260.
ney
Bradbury, 20 Maine,
v.
"If," said the Court, "Whitand Whittcn were seized imme-
of Tucker
v.
Clarke, 2 Sandford's Ch.
96, the purchaser refused to receive a
valid
title
which
his
vendors tendered
upon the execution of their

deeds, which were executed a few
days after that upon which the plain-
to him, together with the costs of an

action which he had instituted for a
tiff
declares, their seizin at once enured and passed to him in virtue of
dors having filed a
the covenant of general warranty in

Somes v. Skinner, 3 Pickhis deed
It has been insisted by
ering, 52.
by Sandford, Vice-Ch., who said,

" The
complainants do not ask the
diately
the counsel for the plaintiff that this

effect depends upon the election of
and that the
the grantee,
here would reject the
title
plaintiff
arising
by estoppel. But we are aware of

no legal principle which can sustain
In the
this position.
the Court says,
'
case cited
last
that
an estoppel to
a party undertaking to convey real
estate, he having nothing in the
estate at the time of the conveyance,
but acquiring a title afterwards by
descent or purchase, does in fact pass
an interest and a
title from the moment such estate comes to the grantor.'

The plaintiff by taking a gen-
eral covenant of warranty, not only

to,
but secured and made
available to himself all the legal consequences resulting from that cove-
nant.
Having, therefore, under
deed, before
the
seven years before the bill was filed.

The executed contract was, that the
complainants were seized of these lots,
if they are not, that they should
and,
turned into a contract, by which, if it

should ever turn out that they were
not seized, they might either repay
is
legally creates
assented
Court to compel a specific performance of an open agreement. They

seek to compel the defendant to give
up his claims under a deed executed
instrument
authorities
an
it
repay the consideration-money. This

to be reconsidered and
is sought
be deduced from
that
to accept this title,
The ven-
compel him
was dismissed
bill to
the general
all the
principle to
which
breach of his covenants.
his
commencement of
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
:
the action, acquired the seizin which

it was the object of both covenants to
them, then they could set up the outstanding title, deprive the defendant
of his speculation, and throw him
secure, he could be entitled only to
upon the
nominal damages, and in our judgment the evidence was legally admis-
which would restore him to the consideration paid.

other
If, on the
sible."
hand, the
But in the recent case in New York

36 *
covenants
lots
in
his
deed,
should depreciate very
much, the complainants would pro-

But
if,
on the other hand, the acquisition of the
after-
acquired estate operates merely as a personal rebutter, giving to the covenantee a right to come into equity for its
1
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 preference to the other. This point was directly presented in a
recent case in Massachusetts, where it was decided, upon
apparent soundness of principle, that the after acquired title could not, without the consent of the grantee,
great
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 reprayed by the
lief
bill
making such a contract
first
for the par-
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
ties
without
Bingham
613
Weiderwax,
see supra, p. 85.
In
Comstock,
Woods
v.
North, 6 Humph. (Tenn.) 310, an executor sold with a covenant that, as

executor, he was seized, and had good
right to
fact,
convey property which,
belonged
to himself in
in
common
enure to the individual benefit of the
He
defendant.
land,
and
is
has purchased the
bound
the exorbitant price, it may be, which

the complainant was to give. But if
sell and convey
which there was no title,
a party fraudulently
an
estate to
who comes into equity to

rescind the contract, will not be com-
the vendee
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;
with other devisees of the testator, and
pelled to take the
which the
his
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
will
this offer
acquired by
in his individual
But the Court held, that

presented no good reason
in any case where, from other circumstances, the plaintiff would be
denying the
relief prayed by the

" If the
complainant were comthis title, the price he
pelled to take
for
title, if
vendor at any time before final

It may be remarked of
decree.)
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
then tendered a deed

capacity.
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
bill.
agreed to give for the land would
entitled
to relief
damages on
his
of law.
l
in
equity, or
to
covenants in a court
See tn/ra, 448.

be made to enure to the
defeat bis right to
1
for title.
by way of estoppel, so as to
a recovery in an action on the covenants
latter
Secondly, as between the purchaser, and a subsequent

The practical results of this
purchaser from the grantor.
when
doctrine of estoppel,
and the grantor,
applied as between the purchaser

importance to those which arise in
yield in
we
now
has been already

said, that the class of cases which have been cited, hold that
the estoppel created by a warranty operates actually to
the connection
are
transfer the after-acquired
"
The
created
to consider.
It
by mere operation of law.

by estoppel," it was said in a
title,
obligation
2
recent case, " not only binds the party making it, but all
persons privy to him; the legal representatives of the party,
those who stand in his situation by act of law, and all who
take his estate by contract, stand in his stead, and are subwhich accrue to him. It
jected to all the consequences
adheres to the land,
comes a muniment of
the
take
title
it
is
transmitted with the estate,
title,
and
subject to the
all
Blanchard y. Ellis, 1 Gray, (Mass.)

See the opinion of the Court,
and
in the recent case of Jarvis v.
Aikens,
supra, p. 87, et seq.
said
389
Scott, 5 Ohio, 198.

Willard, 13 N. Hamp.
White v. Patten, 24 Pickering,
Douglass
Wark
;
324;
Dudley
nect. 226
185;
r.
v.
v.
Pike
Bank
Cadwell, 19 ConGalvin, 29 Maine,
v.
of Utica
v.
Mcrsereau,
3 Barbour's Ch. (N. Y.) 567; Massie

v.
Sebastian, 4 Bibb, (Ken.) 436.
Talbot, 14 B. Monroe, (Ken.) 64, it was said that the

estoppel passed not the equitable but
In Dickerson
the legal
title
v.
to the prior grantee;
afterwards acquire
same doctrine has been

Such a course of de-
193.
2
be-
it
burden which the existence
of the fact imposes on it," and the

3
recognized in many other cases.
1
who
with
"
:
22 Vermont,
The
the
estoppel,
land,
639,
when
was
it
it
runs
operates upon the
so as actually to alter the interest in it in the hands of the heir or
title,
assigns of the person bound by the

estoppel, as well as in the hands of
such person himself;" see this case,

In the late case in
infra, p. 431.
Ohio, of
Buckingham's
Lessee
v.
Hanna, the application of the doctrine of estoppel, to the extent claimed
New England cases,

would have been unjust in the exby some of the
428
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
title
equitable
to the
land was in
Eveland, who, in 1817, had conveyed

it to the defendant.
In 1841, Eveland
filed
bill
Ramey, setting up
ownership, and that the
against
his equitable
patent to the
was made as
latter
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
trustee
(the mortgagee of
against the defendant, (the
grantee of Eveland,) and were ad"
this
mitted
the Court.
by the
plaintiff
Ramey)
Upon
by
state of facts," said
Ranney,
J.,
who
delivered the opinion in the Supreme

" it is claimed
Court,
by the plaintiff's counsel that when Ramey be-
came
invested with the legal
title
in
1839, by patent from the government,
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
terial in this case
is
not very mait has been
but as
particularly adverted to in the argu-
we
ment,
upon
shall
express our views
it.
" It
is
universally agreed, that the
subsequently acquired title enures to
the benefit of the grantee by way of
and binds not only the

but
all
grantor,
persons claiming
under or through him, and passes
with the land to any and all persons
estoppel,
holding under the grantee, (citing
Douglass
Scott, 5 Ohio, 198, supra,
v.
The import of the

language used in these cases is certainly unmistakable. It supposes the
after-acquired title to pass from the
p. 427, &c.)
grantor to his heirs or assigns, but

still conclusively bound by the estoppel, creating a total disability in
their hands to use it to the prejudice
instantly passed to his grantees in

the mortgage by force of the covenant of warranty, and that there
of the former grant with warranty.
was, consequently, no
possible application in such an event

unless this were the case. If the
it
in
title
Ramey upon which
remaining
decree
the
subsequently made in favor of Eveland could operate. The legal title
having passed to the mortgagee, could

only be diverted in favor of para-
mount
equity,
a proceeding to
in
which they were
parties,
cree against them.
and by de-
Whether a con-
veyance executed by one having no

title and
subsequently acquiring it,
thus passes to the grantee, or remains
with tlitj grantor under a total disability to
use
it
to the prejudice of his
Indeed,
it
seems very clear that the
doctrine of estoppel could have no
title
did not remain in the grantor,
but immediately passed to the grantee,
it
would be impossible that any

upon
interest or title could tli'smid,
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 bo
estopped from asserting what thry

had not; since the vi-ry iK-a of an
estoppel
is
a denial of the right of a
BY
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 lias, when it
would
conflict with his
own previous
acknowledgment or undertaking under seal, or operate a fraud on others

to do so.
" The
ground upon which the doctrine of estoppel has always been
applied to deeds
circuity of action
that
is,
;
429
it
Jackson
avoids
Wal-
v.
dron, 13 Wendell, 206. It had its

origin in the ancient law when the
grantor by his covenant of warranty

was bound, upon the eviction of the
grantee, to restore him lands of equal
This has been to this day no
value.
further changed than to allow a pecuniary equivalent to be awarded in
place of lands. But for the applicaof this doctrine, the grantor
might, with his subsequently acquired
tion
oust his grantee ; and the moment this was done, the right of the
title,
grantee would be perfect to compel

the grantor to restore him the same
or other lands of equal value
thus
The remedy afforded
it.
to
the gran-
tee in a court of equity is entirely

inconsistent with the idea that the
title
Sugden on Vendors,
passes.
430, (see supra, p. 191, and

infra, p. 448,) lays down the doctrine
in that court thus
And if a man
vol. 3, p.
'
an estate to which he has no

title, and after the conveyance, acsell
title, he will be compelled

convey it to the purchaser.' How
convey a title which the grantor no
longer has ? Or what necessity or
quire the
to
propriety of decreeing a conveyance

to a purchaser, who already has the
advance of making the de-
in
title
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-
Whether the estopsel, is adopted.

pel works upon the estate and binds
an after-acquired title as between
and privies, or immediately
parties
passes the title to the grantee, in ordinary cases it is clear there is a limit to
attaining in two suits precisely what

now attained by disabling the
grantor in the first instance from
its operation which controls it in the

present case, and deprives the lessors
of the plaintiff of all benefit from
using the after-acquired

prejudice of his grant.
the doctrine in either point of view.

In this case, the defendant
is
"
But
if
the
title
grantor, as soon as
title
to the
....
passed from the

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-
claims by an
mount
to
equitable
title
para-
Ramcy, and long anterior
to the date of the

lessors of the
mortgage
plaintiff.
to the
When
the
cover on his covenant.
legal title came to Ramcy, he held it

as a mere trustee for Eveland, and
would have the
when
The grantee
with perfect
ability to depend upon it, and of
course perfect ability to prevent a
breach of the covenant, without the
title,
necessity of calling to his aid the

doctrine of estoppel, and, indeed,
without any possibility of applying
was taken from him by the

it went
entirely unencumbered with any estoppel arising from
the covenant in the mortgage.
Indeed, if the legal title still remained
it
decree,
in
Ramey
tiff,
it
is
or the lessors of the plain-
by no means certain that
430
but as against a subsequent purchaser from the

the after-acquired
title.
latter
of
This result, if applied to the case of a bond fide purchaser without notice, cannot harmonize with the spirit of
the registry acts in force in this country, and leads to the
position, which cannot certainly be considered as tenable,
that a purchaser
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
will,
person
this
against
according to this doctrine, hold the estate as

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
2
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.
title conveyed to
Ramcy by patent from the government, remained in him in trust for
ion that the legal
Kveland
until
it
was devested by the
decree and transferred to him
that
the record was admissible to establish
and further, to show that

Eveland obtained, claimed, and possessed the land by a right paramount
to Barney and anterior to the mortgage, and he is, therefore, not primu
this fact
facie estopped to assert the legal title

thus derived by the covenant of war-
ranty which llamcy made with the

lessors of the plaintifl'."
1
In the case of the Great Falls
Worster, 15 N. Ilamp. 452, it

scems to have been taken for granted
Co.
v.
doctrine would apply only

to the case of a purchaser with nothat
tlii^
tice,
but in other cases the rule has
enforced even against purchasers "without notice of the prior

conveyance. See the ensuing note,
been
This argument was pressed upon

Supreme Court of Massachusetts
in White v. Patten, 24 Pickering,
324, and disregarded. The facts of
the
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 possession,
mortgaged
it
with a covenant
of warranty to White, who put his

mortgage on record on the 13th of
February
following.
On
the
20th
of July, 1834, Perry, the father-inlaw of Thayer, conveyed this laud

to the latter,
who
the next day mort-
gaged it to Patten. This mnrtgajji',

and tin deed from IVrry to Thav<T,
were recorded on the 2d of August fol1
lowing.
Thayer continued
in
\
BY
If the doctrine in question

to cases
where
it
were limited
in its
was capable of being put upon
when he was disposby Patten, under an execution

upon a judgment obtained against
him.
A writ of entry was then
brought by White against Patten.
431
application
the ground
no actual possession, and
sion until 1835,
there
sessed
where, therefore, the element of notice could not be introduced to the
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 acquired title, that is, from July 20th,
1834 and that any search before that
time should properly be directed to
;
is
of the
prejudice
subsequent
pur-
chaser.
The argument derived from

was
registry acts
also
recent case of Jarvis
urged
Aikens, 25
v.
Vermont, 635, but the Court

"It
the
in the
said,
not seriously claimed by the

counsel for Catherine Murphy, but
that
is
the
subsequent
title
by Aikens would enure
acquired
to the ben-
of Jarvis, so as to estop Aikens
conveyances or mortgages given by

Perry, the real owner, and not by
Thayer, who had no shadow of title.
against
Nevertheless, the Court held, upon

the authority of cases arising under
the principle should

not be applied as between the pur-
them cited and explained

440) that the estoppel created
the mortgage in 1833, bound the

subsequent mortgagee of the after-
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-
acquired title, and the case was decided in favor of the demandant.
portance, and well deserves consideration."

After then quoting the lan-
Such an application of the
guage used
leases (see
infra, p.
by
principle
of estoppel obviously strikes a decisive blow at the protection intended

to
be afforded by our registry acts.

is moreover, curious, that the
It
was
perhaps rightly decided

upon the facts, but the point was
overlooked in the decision. Thayer,
case
was in possession,
which might have been enough to
the mortgagor,
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

without actual or constructive no-
is
'
tice.
It
many
cases
is
evident, however, that
might occur in which
efit
and
it
is
heirs
his
from
him and
title
claiming
his assignees
but
said that
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
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
question.
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

The same objection has
objection.
been made in other cases, but without effect."
In recent cases in Georgia, however, the law
is
differently consid-
432
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
In Bivins
ered.
v.
Vinzant, 15 Geor-
gia, 521, one who had drawn a tract

of land in a lottery, conveyed it by
deed, containing a covenant of warranty, 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
r. Arnold,
Way
18 Georgia, 181, the Court "strongly

inclined to the opinion that our reg-
under the modern form

of conveyancing, were a virtual re-
istry acts,
dwn was
inserted, "freed, exoner-
ated, discharged, and forever indemnified and saved harmless against

him, the said (vendor) and his heirs,
of and from the said ground-rent,
A year
and every part thereof."
after this deed was executed, the
ground-rent was conveyed to this
This was not, of course,
vendor.
an extinguishment of the groundrent, as the title to the ground and
the rent was never united in the
same person at one time Charnley
;
v.
Hansbury,
State
11.)
16.
Harris, (13
Upon
a sale
Penn.
made
peal of the doctrine of estoppel."

In Linsey v. Ramsey, 22 Georgia,
627, the warranty was held to rebut
original purchaser, it was objected to the title, that although by

the words in the habendum, the ven-
(not to estop) the grantor who had

the deed before he acquired
dor and his heirs were estopped, yet

that in case the ground-rent should
" and after he had

acquired
he himself, in the face of his
warranty, sued his warrantee for the
be conveyed to a subsequent purchaser, he would not be bound to
land," and was, of course, held not

to be entitled to recover.
by
made
title
title,
While the
sheets of the
first edi-
of this treatise were going

through the press, a case occurred
by the
search the record for conveyances

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
which were subject

to a ground-rent, were sold to a
" under and
subject to
purchaser
estoppel created by the covenant

would have operated even upon a
subsequent purchaser from the orig-
tion
in practice
which further
the doctrine
house and
the
illustrates
here referred
to.
lot
payment of the said groundend of the haben-
rent," but at the
inal vendor.
433
BY
He would
be under no obligation to the

there would be
covenantee or any one claiming under him
no risk of liability to circuity of action, and consequently
the covenantor.
no rebutter.
moreover, two classes of cases which appear
to show that the doctrire of estoppel, as applied in many of
There
are,
our States, to passing an after-acquired estate, is not based,

as many authorities would seem to found it, solely on the
action.
principle of preventing circuity of
One of these is, as has just been seen,
tion has arisen
where the ques-
between the assignees of the original title,

the former
and the assignees of that subsequently acquired

having, of course, no right of action against the
can be no circuity of action.

The other class of cases
is
where
it
latter, there
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 to>
1
an after-acquired title.
The rule, however, adopted by this
class of cases as to the estoppel of a
i
436
Lessee
Hill's
v.
West, 8 Ohio, 226;
Sebastian, 4 Bibb, (Ken.)

Fowler v. Shearer, 7 Mass. 21
Massie
v.
Colcord
v.
Swan,
Id. 291
Nash
?;.
Spofford, 1 Metcalf, (Mass.) 192, but

see the later cases in Massachusetts,
"These decisions," it
infra, p. 434.
was
"
said
in Hill's Lessee
v.
West,
not seem to be founded upon

the reasons which are usually assigned
may
why
the covenants in a deed should
operate by
way of estoppel,
that
is,
to
prevent circuity of actions still they

seem to us to be reasonable, and such
;
married woman, has
takes, in conjunction with her husband, to convey his land with cove-
nants of warranty,
protect
her from
damages
for the
enants
it is
the
sufficient to-
payment
ot
breach of those cov-
for all other purposes they

should be held operative. If, then,,
after the execution of the deed to the
;
lessor
of the
Mary
AVilcox acquired
plaintiff,
Ilildah
title
and'
to the
premises in controversy, that title

enured to the benefit of the lessor ot
the
plaintiff,
and neither they or
as tend to the furtherance of justice;
those claiming under them shall be

permitted to defeat the plaintiff by
and when a married woman under-
setting
37
up
this
after-acquired
title/*"
434

1
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,
mit, that the doctrine
most of the
authorities ad-
which has been adopted
in giving to
all the
high operation of an estopan
estate
after-acquired
by mere operation of
pel
passing
it
the
with
law, and connecting
principle of preventing circuity of action, has arisen from a peculiar view which has
the covenant of warranty

in
been taken of a single section of Littleton, and the commenThe passages retary of Lord Coke upon that section.
In section 446 of Littleton he says,
ferred to are these
" No
a release but the
which the
:
right
right passeth by
For if there
releasor hath at the time of the release made.
be father and son, and the father be disseized, and the son
his father) releaseth by his deed to the disseizor all
(living
i
Jackson
167
Johns.
Vanderheyden, 17
Martin v. Dwelly, 6
v.
Wendell, (N. Y.) 14

Carpenter v.
Schermerhorn, 2 Barb. Ch. (N. Y.)
314 Dominick y. Michael, 4 Sandford, S. C. (N. Y.) 424
Wadleigh v.
Glines, 6 N. Hamp. 18 Den v. Des;
marest,
In Wight
Zabriskie,
v.
Shaw,
(N. J.)
541.
Gushing, (Mass.)
65, 66, the question
was
left
unde-
cided, but in the recent case of Lowell
against her grantee, or against

a purchaser from him without no-
as
tice.
Thus, in Virginia, the Revised

declares, that a privy
Code of 1849
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 shall
not operate any further upon the
by means
Daniels, 2 Gray, (Mass.) 168, it

was distinctly held that a married
woman who executed a deed of her
wife, or her representatives,
real estate with covenants of war-
substance for a prior act re-enacted
ranty, bearing date previously to the

marriage, by the name which she
into being
v.
of any covenant of warranty contained therein. This was taken in
in
1819 (and was, perhaps, called

by the case of Nelson v.
342
then bore, with the fraudulent pur-
liar wood, 3
pose of imposing upon some person

to be affected by it, and without dis-
similar enactments prevail in the States of Delaware, Illi-
closing the fact of her marriage, did

not thereby estop herself and her
souri; see in the latter State,
heirs to set
up her
title
in the
kind
ch. xii.,)
nois,.
vin
i\
Call,
see supra,
and
Indiana, Michigan,
and MisChau-
Wagner, 18 Missouri, 542.
BY
435
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 upon the possession of the
disseizor, for that he had no right in his father's life, hut
the right descended to him after the release made hy the

"
" If there
to which Lord Coke adds,
death of his father ;
he 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
time, and the reason, (which
which was not
in
him
at that
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
is in all
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."
be observed that, in the above passages, the word

"
2
is not
The doctrine seems not to
estoppel
employed.
It will
"
be thought a branch of the law of estoppel

the warranty
of
to
avoid
rebutter,
operates by way
circuity of action
far different from that of
estoppel, for, although
3
another
of
his
Coke,
part
Commentary, speaks of rebut" a kind of
ter as being
estoppel," yet, as has been said,
this has reference merely to the
ordinary and personal effect
an
effect
in
of an estoppel, and not to
passing an
*
estate.
Co. Litt. 265
its
extraordinary effect of actually
If such had really been the case, the
"
a.
toppcl
but
it
is
believed that no
following sentence from Co.

Litt. 352 a, is often quoted in con-
authority can be cited to show that a
nection with them: "Privies in blood,

as the heir, privies in estate, as the
ment or
The
feoffee, lessee,
&c., privies
in
law,
comprehending those who came in

by act of law or in the post, shall be
bound by and take advantage of es-
warranty, unaccompanied by a
no
fine,
estate, to
feoff-
made by one who had

another who had no
previous estate, possessed this quality

of an estoppel,
3
Co. Litt. 352
b.

whole system of feudal conveyances would have been deAll distinction between the common-law modes of
ranged.
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. 1
The passages
in Littleton
ter applied to the
ence
to
based.
that
it
law
one of the
and Coke may perhaps be bet-
by a single referwhich
principles upon
warranty was
at the present
day,
was one
of the peculiar attributes of a

warranty
2
Such an estate
required an estate to support it.
It
was created by a feoffment or a fine, the solemnity of which

was such as to create and pass an estate, whether rightfully
sary
To
a feoffment, livery of seizin was necesbut livery of seizin could not be given unless the
*er wrongfully.
had the actual possession ; and when this was the

the
case,
delivery of the possession (of which the charter of
feoffment was merely the
authentication) was an act of such
as
to
an
actual
estate to the feoffee
an esnotoriety
pass
feoffbr
tate of fee simple if the feoffbr so willed it.

Such an estate
could support a warranty.
The same doctrine applied to a
fine, which was of equal solemnity and notoriety as a feoff-
ment, and indeed always presupposed one, and which, moreover, devested all remainders and interests whatever. When,
therefore, one attempted to convey to a stranger, land to
which neither of them had a title, it was necessary to obtain the possession, and when this was done,
although the
feudal law declared that his feoffment should pass an estate,
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
yet
it
Sec the able note to the Duchess
of Kingston's case, 2 Smith's Leading
Triplett, 1
3 Litt.
Cases.
8
r.
v.
Seymor's case, 10 Coke, 96; Piatt

Kercheval
Oliver, 3 McLean, 39
;
A. K. Marshall, (Ken.)
495.
367
a.
599-611
Co. Litt 387
a,
487
warranty any operation whatever when the possession was

wrongfully obtained, it being an inflexible rule that a warranty commencing by disseizin, and
giving
effect to that disseizin,
Now
was
made
for the purpose of
void.
a grant or release did not possess the high qualities
of a feoffment or
fine.
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
existed.
was a
It
where none previously
estate,
familiar principle that a warranty could
not enlarge an estate, 4 and consequently

1
"
"
and
dies,
is
heir
son,
son, this warranty shall not

bar the son, for notwithstanding this
to the
to the land, or
the alienee if
may
well enter in-
have an assize against

he will, because the
warranty commenced by disseizin,

for when the father, who had but an
estate for a
term of years, made a
feoffment in fee, this was a disseizin

to the son, of the freehold which was
then in the son.
ner
it
is,
if
In the same man-
the son
letteth
to the
father the land to hold at will,
and
after the father inaketh a feoffment
with warranty.
the father, so it
other ancestor.
And
may
as
it is
said of
be said of every
In the same manner
tenant by
tenant by
statute merchant, or tenant by stat-
is
it,
who ought to have the land, because such warranties commence by
if
elegit,
37*
See also Co.
disseizin."
Litt.
367,
368, &c.
2 See the celebrated
argument of
Mr. Knowler in Doe v. Whitehead, 2
Burrow, 704.
3
whereby the warranty descends
warranty, the son
make
ute staple, make a feoffment in fee

with warranty, this shall not bar the
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
father
could not
is
commences by
that
Warranty
disseizin," says Littleton,

698,
in this manner ; as where there
it
Touchstone, 227, 228
2 Pres-
Conveyancing, 209.
4 Year
Book, 44 Ass. 35; Co.
Litt. 385 b; Seymor's case, 10 Coke,
97; nor consequently can the mod-
ton's
ern covenants for

Cushing,
Corbin
dall
title
Hurd
v.
Pickering, (Mass.) 169

Healy, 20 Id. 514 Ken-
v.
Brown, 7 Gray, (Mass.) 212;

Wright y. Henon, 5 Rich. Eq. (S.
Car.) 448; Patterson v. Moore, 15
v.
Arkansas, 225
Missouri, 27
Rector
Den
d.
v.
Waugh,
Roberts
v.
1 7
For-
Devereux, (N. Car.) 26 Den

3 Iredell, (N.
v. Young,
Car.) 379; and hence it has been
held that a conveyance which for
syth, 3
d.
Snell
want of the word
heirs passes only a
can neither be enlarged

into a fee by the presence of a
life estate,
438

which would otherwise be
valid that
invalid.
Hence
it
fol-
lows that a grant or a release with warranty, of a defeasible estate, or no estate at all, to one having no
previous interest,
was
had been no warranty.
as ineffectual as if there
Had this been otherwise

had the effect of a warranty
been to convey to a grantee or releasee any subsequentlyacquired estate, there would have been an end of the common law
rule that a future estate could not be barred
mere deed
to a stranger.
by a
If, however, the grantee or releasee had a previous interest or estate in the land, the warranty would knit itself to that, and, having then something
it, would rebut the warrantor and his heirs in
same manner as if the supporting estate had been cre-
to support
the
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

in the first sentence.
The son having no estate, the
;much
release of course passed none.

The reason why the warwas
in
the
case
he
efficacious
ranty
puts, is that the releasee
had an estate to which the warranty could attach itself, and
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
that the ancestor's estate
would have been
utterly
void.
Of
the
ten
requisites
usually mentioned as necessary to give effect to a warranty,

there are two which are here essentially applicable.
First,
and
that the estate to be barred should have been devested

covenant of warranty to the grantee
.and his heirs, nor will such a cove-
" Warranties do bind

only rights
and actions which are i cssc at the
nant operate upon the latter by way

of rebutter; Register v. Rowell, 3
.Jones' Law, (N. Car.) 312. In Shaw
time of the warranty made, and not
Galbraith,
Barr, (Pa.) Ill, this
point was however differently

considered, see m/ra, p. 445.
tlattcr
rights
and actions which arc
to ac-
cruc after the warranty rivati-d
Holland
Rep.
77.
v.
Jackson, J.
"
;
Bridgman's
KY WAY OF ESTOPPEL OR REBUTTER.

or at the time
put to a right of entry before,
when
439
the war-
of the warranty was made ; and secondly, that the estate

rantee should have had a substantial existence before or at
that time.
Both of these
case referred
to.
The
estate
were present in the

of the father had been devested
requisites
and put to a right of entry before the warranty made by the

son, and also the warrantee had a substantial interest or
If the warestate at the time he received the warranty.
rantee had been a total stranger, he would have had no previous estate to which the warranty could be attached, and
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 would have been
as the release
If the
wholly inoperative.
1
"
To every good warranty
that must bar
in deed
and bind, these things
are requisite. First, that the person that doth warrant be a person
Second, that the warranty be
able.
made by
mere addition of a warranty

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-
Third, that there be

which the warranty
ranty, the estate of freehold or inheritance be displaced and devested.
that may support it.

Fourth, that the estate to which the
warranty is annexed be such an es-
Eighth, that warranty take effect in

the lifetime of the ancestor, and that
deed.
some estate
is
annexed
tate as
is
to
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
he be bound by it, for the heir shall

never be bound by an express warranty, 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
be barred by the
warranty be of full age at the time
the heir that
is
to
Sevthe warranty be interrupted.

enth, that the estate of freehold that
of the
to be barred be put to a right of

entry or action before or at the time
of the warranty made, and that he
whom the warranty doth descend

have then but a right to the land, for
2 This line of
argument was adopted by the counsel for the defendant
in the very recent case of Rector y.
Waugh, 17 Missouri, 13, as to which
the Court said, " The strong views
a warranty will not bar any estate

of freehold or inheritance in ewe, in
presented by the counsel for the dofondant, are supported by a great
is
to
fall
of the warranty."
Touch-
stone, 186.
440
could have produced the effect supposed to have been attributed to it

if
estoppel and warranty had been as identical
as they are supposed to be, and if the interest, when it
accrued, fed the warranty, the introduction of conveyances
under the statute of uses, would have been needless, 1 and

future estates could have been transferred to a mere stran2
ger, without the notoriety of a feoifment or fine.

It is not meant
by these remarks to deny that the presence 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
Such a principle
they subsequently acquire a title to it.
seems to be correct, but it is, with great deference, submitted, that
it
is
in the absolute
not strictly a branch of the law of estoppel,

and technical sense in which that word has
some cases been
in
used,
weight of authority, but the reasoning on which they are founded has
been
insensibly
undermined,
and
which stood out in bold

relief when the feudal policy was
the idol of the law, have gradually
The Court howlost their force."
ever decided the case on another
principles
ground against the estoppel
a covenant to stand seized of land
which the covenantor should afterwards purchase, was void 2 Sanders on Uses, 83
Preston's note to
;
"A
the Touchstone, p. 165.

man
cannot by a covenant raise a use out
of land which he hath not
ton
v.
"
Yelver-
Yelverton, Cro. Eliz. 401
S.
see su-
C. Moore, 342, although at the present day, a covenant to charge or dis-
bargain and sale with warranty by a tenant for life, would,
pose of lands hereafter to be acquired, will be enforced in equity ;

Wright v. Wright, 1 Vescy, Sen. 409
pra, p. 421.
A
according to this doctrine, have proa result

duced a discontinuance
not properly attributable to such a

mode of conveyance as a general
rule; Gilbert's Tenures, 119; Seymor's case, 10 Coke, 96; McKee v.
Pfout, 3 Dallas, 486
Preston's
Law
Tracts, Tract 2.
3
v.
mons, 505 Welleslcy

4 Mylnc & Craig, 570.
;
v.
Wellesley,
class of cases is often quoted

support the connection between
a covenant of warranty and estoppel.
to
So, to render effectual a cove-
nant to stand seized to uses, it was

necessary that the covenantor should
have a vested estate
Archbishop of York, 1
547 Lydc v. Mynn,
&
Craig,
Mylnc
S. C. 4 Si1 Mvlne & Keen, 683
Metcalfe
and therefore
These are cases of
leases,
when-
tin-
lessor's sub,sequently-acqu'nv(l
e>tate
enures to the benefit of the
lessee,

evident, however, that in
It is
effect lias, at least in
many
cases,
441
country a peculiar
this
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
It
personal covenants for title.

that a covenant that the vendor
seems
to
have been thought
was seized, or that

was less powerful in
the pur-
this rechaser should quietly enjoy,

and defend the land itself.
spect than a covenant to warrant
As such a covenant
seldom or never employed in Engis based

lish
conveyancing, the doctrine of estoppel, which
to be, at the present day,
be
said
its
upon
presence, may
exclusively an
is
American one.
According
to this doctrine,
a deed with a covenant of warranty on this side of the Atlantic may, perhaps, be likened to a deed to lead the future
uses of a fine or a recovery in England.
In
adopted by the
cannot
it
Pennsylvania,
New England
full extent, viz., that
the land subject to the lease Rawlyns' case, 4 Coke, 52 ; Trevivan v.

:
Salkeld, 276
Lower, Pollexfen,
cases proceed
In the
ciple.
66.
Weale v.
But these
;
upon a
first
different prinplace, the absence
or presence of a warranty formed no
part of them, and we have no reafon to suppose, as was suggested in

Pelletreau v. Jackson, 11 Wendell,
(N. Y.)
119, that the
decision
in
Kawlyns' case turned upon the implied covenant for quiet enjoyment,
Secondly, the relation between the
landlord and tenant
is,
in
every de-
gree, more peculiar than that of vcndor and purchaser. There is always
an understood contract between them
that the lessor
which
will
is
said
that the
doctrine
cases has been recognized to its

contains a covenant
when a conveyance
and a subsequent purchaser takes
Lawrence,
be
conveying an estate
support the lease, and
of
is room for the operation
estoppel in its highest function,
! The doctrine held by the
English
there
Courts at the present day on the subof estoppel, will be found Mi-
ject
fra,
p.
447.
It
may perhaps be
argued, in favor of the doctrine of

estoppel, as held in many parts of this
country, that the effect of a covenant
of warranty is to raise a use in favor
of the purchaser, which the statute

would at once execute; but the answer to this may perhaps be, that it
was requisite to the execution of a
use under the statute, that there
should be an estate or seizin out of
which the use was to arise, and therefore contingent uses, during the sus-
pension of the contingency, could

1
not be executed by the statute
;
Sanders on Uses, 231.
442
of general warranty, an after-acquired title actually passes

at least it cannot be said to depend
by estoppel
entirely
upon the presence or absence of a covenant of warranty.

In an early case, 1 Tilghman, Cb. J., in delivering tbe opin" J. M. sells and
ion of the Court said
conveys land to
:
which he has no
title,
but afterwards acquires
Can
title.
his heirs recover against his grantees ?

It
appears to me
that in such case they would be estopped by their father's
deed from denying his
title,
further assurance, equity
and
there were occasion for

"
if
would compel them
to
make
it
" In
equity, a grantor conveying land
for which he has no title at the time, shall be considered a
and Yeates.
J.,
trustee for the
should acquire
Ch.
J., in
added
case at any time afterwards he

a very able opinion by Gibson,
2
Barnet, he held that the acquisition of
grantee, in
title."
Chew
v.
So, in
enabled the prior purchaser to demand

" not as vestin equity a conveyance from the grantor, but,
ing the title in him of itself, as contended for, by estoppel.
the subsequent
title
In the case of a conveyance before the grantor has

acquired the title, the legal estate is not transferred by the
.
uses, but the conveyance operates, as I have

said, as an agreement which the grantee is entitled to have
statute of
3
executed in chancery."
So, in a recent case, the same
learned Judge remarked " The covenant went directly to
the land defined by the courses and distances ; and had the
:
vendor subsequently purchased the part of it in question, a

chancellor would have compelled him to convey it over
and this,
again, in order to make good his former deed
;
Me Williams
v.
Nisly, 2 Serg.
&
2 11
Serg.
&
llawle, 389.
See accordingly Taylor v. Dabar,

Cas. in Ch. 212, supra, p. 189;
Wri-lit
Nod
v.
v.
Smith
Ch.
Rawle, 515.
1
Vesey, Sen. 409;
Bowley, 3 Simons, 103;
Wright,
v.
Baker,
Kearney,
Young &
Collier's
190; Jones v.
Drury and Walsh, 159
223, supra,
p.
lUwlmin, 24 Georgia,
154, -where this note was cited.
4 Stciner v.
Baughman, 2 Joiu-s,
Gooclson
v.
(12 Pemi. State
11.)
108.
WAY OF ESTOPPEL OR REBUTTER
BY
fact
equity from the
an
on
that he
had received value
for it."
Brown
In
McCormick, however,
v.
was
it
held,
that
"
an after-acquired estate
hy operation of law immediately
2
In Kennedy v. Skeer, there was
to the grantee."
passed
1
This was a strong

McConnel, claiming to own
the premises under a survey, conveyed in 1788 to Harvey, by deed
containing covenants for seizin and
general warranty. Nine years after,
the real owners, Uriah, David and
Mercer Brown conveyed to McConl
6 Watts, 610.
case.
nel,
who, to secure 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

days after. Under these judgments, the premises were sold by the
six
whose vendee brought
sheriff,
ment
Harvey
eject-
claiming under
against those
and Rogers,
who
J.,
deliv-
ered the opinion of the Court, said

u
The
the
of the deed of the
execution
of November, 1797, from David

Brown and others to Robert M'Con10th.
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,
788.
At
that period,
by operation of law, William Harvey was the owner of the
therefore,
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 undoubtedly is, that it was intended, in good
faith, to
carry into effect his sale to
But it is alleged,
judgment on which the
William Harvey.
that
the
plaintiffs' claim,
being for the pur-
question is as to the legal

effect of the deeds, which the Court
chase-moftey, although not entered

until six days after the conveyance,
below decided was to pass immediHarvey all the right which
is
first
ately to
Robert M'Connel acquired in the

land by virtue of the deed from the
Browns
to him.
And
this
ciple too well settled to
pute.
in
When
is
a prin-
admit of
dis-
a person conveys land,

interest at the
which he has no
time, but afterwards acquires a

to the
same land, he
will
title
not be per-
mitted to claim in opposition to his

* deed, from the grantee, or
any person claiming title from the grantee
11 Johns. Rep.
12 Johns. Rep. 207
Co. Litt. 265.
the principle
is,
The
But bonds,
to M'Connel.
with a warrant of attorney to confess
judgment, although given to secure
the purchase-money, are but a personal security until judgment entered,
and consequently
after
the
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-
operation of
ing the premises to the lien of other

incumbrances. And this conveyance
on
the vendor can only avoid by enter-
91
a lien on the property conveyed
by Brown
that immediately
2 3
Watts, 98.
444
a mere assignment of the

deed, which
it
acquired under a treasurer's
title
was held did not estop the grantor himself
from afterwards claiming the land under a subsequentlyBut in McCall v. Coover, 1 the principle
acquired title.
that an after-acquired
enured to a prior vendee, was

acted upon entirely irrespective of any covenant of wartitle
ranty, as it was held that the titles to donation land granted

by the Commonwealth to soldiers of the Revolution, prior
to its acquisition
State,
were confirmed by the sub-
the latter.
In this case there was, of
by the
sequent purchase by
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, 2 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
ing his 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
that they
were estopped
erence to the case decided."
In the
previous case in New York, of Jackson v. Bradford, 4 Wendell, 462, the

facts were almost identical, and the
decision different.
An
heir
conveyed
on Chew v. Barnet, 1 1 Serg. & Rawle,

399 but that case merely decides
certain land with a covenant of non-
the general principle that the purchaser of an equitable title takes it
scended upon him, and was levied

upon under a judgment against him,
subject to all tne countervailing equiwhich it was subject in the
and
ties to
hands of the person from

purchased.
But
here,
veyance from Brown
whom
he
by the conto
M'Connel,
M'Connel acquires a legal title to the

premises, without the lien of any 5ncumbrar.'je whatever, whether legal or
equitable, which,
by operation of law,
immediately passes to his grantee."

In the subsequent case of Bellas v.
was said by
the same learned Judge, that ('hew
" must be viewed with refv. Barnet
M'Carty, 10 Watts, 26,
it
Afterwards
claim.
sold,
the
estate
de-
and the Court held that
the sheriff's vendee took, to the exclusion 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
lie upon a covenant of non-
would
claim,
and hence there would be no
estoppel.
2
4 Watts & Serg. 161.

Root v. Crock, 7 Barr, 380, per
Burnside, J.
445
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
to
the survey and deed, it was held that he was estopped

from claiming so much as was included. It was argued on
in
no estoppel without a war" There is no

the
Court
said,
principle in our
ranty, but
law better or more plainly settled than that on which the
his behalf that there could be
Judge
that if a
instructed the jury
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
In a recent case, it was decided

as against his grantee."
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 under such judgment, enured to the benefit of the grantee or
those claiming under him, but that if the grantee, before the
sheriff's sale, conveyed to a third person expressly subject to
all incumbrances, his
vendee was not placed in his position,

to demand a conveyance of the
and had no equitable right

title
subsequently acquired by the original vendor at the
sheriff's sale.
Shaw
1
2
there was a conveyance to a

without
of the word heirs, but the
addition
the
grantee
covenant of warranty was made from the grantor and his
In
v.
Galbraith,
heirs to the grantee and his heirs and assigns, and the
Court held that although it was a technical rule that a war3
ranty could not enlarge an estate, yet that it might operate
" In
by way of equitable rebutter to avoid circuity of action
:
matters but
whether the estoppel operates

by the ordinary effect, whereby the parties are debarred
this case,
it
little
1 Skinner v.
Starner, 12 Harris,
(24 Pcnn. State R.) 123.
38
2 7
3
Barr, 111.
See supra, note
to p. 437.
446
from denying the passage of the
On
the estate.
estate, or as a transfer of
much
this point there is
learning in the
books somewhat difficult to understand, but 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 been transferred so as to enable the grantor to supThe principle of the

port an action against a stranger."
1
upon the presence of a warranty, seems
"
have been approved, and it was added,
Without
cases which depend
then to
then undertaking to determine whether the fee simple is

transferred, we are of opinion that the grantor, and the
who claims under him, are estopped from denying
plaintiff
the
1
title."
McCracken
194; Jackson
(N. Y.) 622
contrary decision was, however,
Wright, 14 Johns.
Bradford, 4 Wend.
v.
v.
Somes
Pickering, (Mass.) 6 1
v.
Nisly, 2 Serg.
The Court
&
v.
;
Skinner, 3
Me Williams
Rawle, (Pa.) 516.
then said
"
Where
there
a warranty in the deed, the warranty will rebut and bar the grantor
is
they
much
principles
mission of
where
veyance
title is effected,
trans-
in cases
acknowledge the subse-
all
it
in
better agreed as to the
upon which such a
quently acquired
some
made
title
passes.
By
contended, that no conexcept the common law
is
there said, because the
or fine and recovery,

could have the effect of passing a
legal estate which the grantor had
title
ever passes by such grant, but

the principle of avoiding circuity of
not at the time, and that neither

a general warranty nor any mere
action interposes, and stops the grantor from impeaching a title to the
estoppel could affect the legal title.

On the other hand, it is maintained
by the decisions in New York and
and
is
his heirs of a future right.
not, as
is
This
soundness of which he must answer
on
his warranty."
2 " It must be admitted," said the
Court, in the recent case in MisBogy v. Shoab, 13 Missouri,
souri, of
378, as introductory to the remarks

upon the local statute on this subject (see supra, p. 411), "that a very
great diversity of opinion has existed,
feoffments,
Pennsylvania, and in
all
the
New
England States, that a conveyance

under the statute of uses, a bargain and sale, if accompanied with
a covenant of general warranty, Avill
operate upon a title which the bargainer did not have at the time of
the conveyance.
The new title is
supposed to enure by way of estop-
both in adjudged eases, and in the

treatises of law writers as to what
pel, to the use of the
description of conveyance will pass

Nor are
an after-acquired title.
Although nothing passes by

the deed, as the grantor had nothing,
assigns.
grantee and his
BY
447
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

1
it was annexed determined.
to
which
As respects the law in England upon this subject at

the present day, it Was said by Lord St. Leonards, while
2
Chancellor of Ireland, " The cases seem to me to establish
that if a
this,
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 defeated, but subsequently he acquires the
another
title,
to fasten
it
there
is
upon the
an equity arising out of the contract

new title." 4 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
warrant it only against all claims
derived from himself, he is understood to refer to existing claims and
to
incumbrances, and not to any title

he might afterwards derive from a
Register
from himself,
his heirs, executors
and
It was contended,
assigns forever.
supra, on the authority of Shaw v. Gal-
braith, that the
deed operated
to pass
estoppel, but the

Court said that in that case " the special clause of warranty was from the
the fee
by way of
grantor and his heirs, to the grantee,

his heirs and assigns. Here, whether
from ignorance or design, the clause
of warranty is only against the grant-
or and his heirs, and that being inconsistent with the granting part of
the deed, which purports to convey
only a life estate, could not be so
construed
as
to
enlarge
it
into a
fee."
stranger."
l
same lands under
v.
Rowell, 3 Jones' Law,
(N. C.) 312, citing Seymor's case, 10

Coke, 96. Rector v. Waugh, 1 7 Missouri, 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
2 Jones v.
Kearney, 1 Drury &
Warren, 159.
3 See accord. Pierce v.
Emery, 32
N. Hamp. 484.
4
The case of Fausset
in the
House of Lords,
v.
Carpenter,
Dow & Clark,

New Rep. 75,
232, S. C. 5 Bligh's
should not be here passed by without
448
" If a man sell an estate to which he

Vendors, it is said,
has no title, and, after the conveyance, acquire the title, he
Property as administered
Anna Maria and her

husband, levied fines of their several
one thirds and by lease and release,
House of Lords," and as much

reliance was placed upon the form
they and Henry Palmer, in consideration of

4,000 paid by Fausset,
viz.
The
notice.
in
Lord
the
St.
Law of
report is thus abridged

Leonards' treatise " On
in the
title,
it
will
The
in
heiresses
and
and
had vested
65. 8d. to Henry Palmer, did, and

each of them did, grant and release
Elinor.
Catharine, on her
first
marriage, conveyed her third to two

trustees in fee, of
whom Henry
Pal-
mer was
life,
1,333 65. 8d. to Catharine
daughters in fee, as coCatharine, Anna Maria,
estate in question
three
her husband, 1,333 6.9. 8d. to Anna

Maria and her husband, and 1,333
not bear a more succinct statement.

"
husband, and
one, for her husband for

then for herself for life, and
to Fausset, in fee, all the lands
estate in question,
and
and
the estate,
right, title, interest, use, trust, inheritance, property, claim and demand
all
whatsoever, either at law or in equiof them the grantors and each

and every of them, of, in and to the
then for the issue of the marriage.

There were several children of this
ty,
marriage, and Catharine married a

Anna Maria mar.second husband.
said lands, &c., and every part and

parcel thereof, together with all documents of title relating to the same.
And the husband of Anna Maria,
ried,
and made no settlement of her
one third and Elinor married Henry Palmer (the trustee under Catharine's settlement), and she made no
;
her one third, and

leaving her hus-
settlement
of
afterwards
died,
band and one son surviving her.

Fausset contracted to buy the estate for
4,000, and was ignorant
of Catharine's settlement.
interests
of the
seller
The
real
stood thus
Catharine's one third was vested in

fee in
Henry Palmer and
trustees, in trust for

life,
the other
Catharine for
and her husband was of course
interested in her
life
estate in his
Anna Maria's one

marital right.
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 vested in the son, subject to the father's
estate.
Catharine and her second
and Anna Maria his wife,

and for his and her heirs, executors
and administrators, and the husband
of Catharine for himself and Catharine 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,
for himself
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,
and wives,
and Henry Palmer, or some or one
of them, were or was seized in fee of
tin- hinds conveyed; and that they,
or some or one of them, had right to
convey, and for quiet enjoyment of
the lands and every part thereof,
against the husbands and wives, and
they, the two husbands
BY
449
But it
be compelled to convey it to the purchaser.
that
this
is
a
seems to have been considered,
personal equity
will
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
or in equity,
of, in, to
law
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 Palmer, or the father, their or any of

their heirs or assigns
and
that free
from, or otherwise by the two husbands and wives, and Henry Pal-
mer, their heirs or assigns, indemnified against all grants, estates, &c.
&c. (in very full words), made or to
be made by them or by any of them,

their heirs or assigns, or
by any persons 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-
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
ther assurance
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 Fausset in fee.
Upon an eject-
ment by the surviving trustee (Henry Palmer having died first) under
Catharine's
settlement,
after
her
death, it was insisted that the deed

to Fausset 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 *
and upon a bill of exceptions

opinion was supported by the
wise,
his
Court of King's Bench in Ireland,
and
the
their judgment was affirmed by

House of Lords, without taking
The Law Lords

House were Lord
Wynford and Lord Tenterden, C. J.
Lord Wynford said, as to the con-
time to consider.
who
advised the
struction of the deed, he took
it
on
the principle stated by Sir E. Sugden, the counsel for the appellant.
He stated that the purchaser takes
what the parties conveying assume

to sell, and buys that and no more. [V]
Then look at the deed, and see what
Palmer
is the scope and effect of it.
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 intention 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 beneficial interest, but which he had
merely as a trustee.
ficulty in
double
this
The only
dif-
case arose from the
character
held
by Palmer
with respect to these estates, and

then in what he conveyed. Mr. Abbot 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 in 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
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
when a
in doing,
con-
put on the instrument perfectly consistent with his

doing only what he has a right to do.
He had a right to convey his own
struction
may be
but he did wrong if he conveyed more. The parties to the deed

were the two married daughters and
estate,
and Henry Palmer,

who, as his wife was dead, was probably tenant by the courtesy, and they
conveyed the estate to Fausset in
their husbands,
consideration of
4,000.
If
ike in-
strument had stopped there, one might

say that each meant to convey the entirety
but mark what follows
equal proportions of
three
in
1,333
to be severally paid
each of the said grantors respec-
6s. 8d., stated
to
tively.
Each, therefore, takes his
proportion of the price, and the fair
presumption
is,
proportion only.
for title
each
that
sells
his
the covenants
By
and quiet enjoyment, Pal-
to be dealing only with

the interest which he had in right of
mer appears
his wife,
and
and covenants
for himself
Sir E.
for her heirs.
Sugden
were strong
since they went to the
said that the covenants

in his favor,
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
entirety of the estate.
of the instrument together, and then

appeared that each covenants for
it
what he
sells,
and then
the
whole three
covenant for the entirety of their interests.
The
plain
meaning therefore
was, that Palmer does not here convey the estate which he had as a
and which he would have

done wrong in conveying but that
he conveys only the estate which
trustee,
belonged to him in right of his wife,

and which he had a right to convey.
Lord Tenterden replied upon presame grounds. The question was, whether the deed operated
as a conveyance by Palmer only of
that in which he was beneficially incisely the
extended to that estate

The
he was a trustee.
question here was not as to whether
a person having two estates, both of
terested, or
of which
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 without fraud and a breach of trust. He
(Lord Tenterden) was satisfied that
the parties conveying meant to
convey only what belonged to themselves, and that Palmer meant to
convey only that part which belonged to him in right of his wife.
all
He
then stated
how
the considera-
was paid. That, he said, standing alone, would intimate that the
parties meant to convey only what
properly belonged to them, and that
supposition was confirmed by the
tion
covenants.
The form
of the cove-
Palmer looked
only at the right of his wife, and to
what it was lawful for him to convey, and the Court was not bound to
nants showed
that
extend the scope of the instrument

further, where that was suflinVnt
to satisfy its meaning, and so the
100
judgment was allinned with
costs."

and the
his lifetime confirm the title,
4-51
estate descend to the
heir-at-law, he will not he hound by his ancestor's con-
Lord St. Leonards, in his treatise

on Vendors (3 Vend. 428,) has con-
state of the title,
proved by extrinsic
evidence, but which was not communicated to the purchaser. If the de-
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,
cision
capable of being supported,
is
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
it
which was so generally condemned

The
as this in Westminster Hall.
rights of the purchaser were entirely
He was ignorant of
disregarded.
the settlement by Catharine ; and
her eldest son, one of the cestuis que
trust under it, witnessed the execution of the conveyance to the purchaser by his mother. All the par-
conveyance conveyed the

whole estate to the purchaser in fee.
How, in the face of that conveyance,
ties to that
for controlling the legal operation of

the conveyance, where the trustee
could any of those parties claim any

interest as still remaining vested in
did not disclose the trust, but joined

with the cestuis que trust, having a
them, although they were capable of

conveying them ? Palmer was, no
doubt, a trustee of Catharine's third
limited estate,
but he did not disclose that circum-
what the sellers intended to convey,

we must consider also what the purchaser supposed they had conveyed,
and what the words imported. Who-
stance to the purchaser. How, then,

could he protect himself in that character
by confining the operation of
conveyance to his own wife's

He might have so confined
third ?
it if he had chosen, but, no doubt,
such a desire would have raised susthe
as if the fee
them.
The
ever conveys
... If Palmer's conveyance operated to convey Catharine's
grounds
for
her
life,
for the fee
intended to
that
is,
the legal estate
of course the fee passed,
was expressed, and was

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
to a
is
not simply
purchaser without
veyance, should be deemed to convey

in every character which enabled
is
life interest,
question
to
in
restraining the operation of his con-
picion in the purchaser's mind, and

he would not have completed the
purchase.
and allowed them

were vested
convey
him
to give effect to his deed.

This
a rule which has always been acted
upon.
The Lords
:
1.
relied upon two

That the consideration
but surely that

was paid in thirds
was entitled to no weight the payment was a correct one, but the parties conveyed the whole, and no prudent purchaser would be content with
a conveyance in a more limited form
if such had been the intention, each
;
4-52
This opinion, however, deserves great considera1

v. Faulkner, is the authority cited, in which,
however, Chief Baron Eyre spoke by no means positively
tract.
Morse
tion."
mere personal equity, and expressly

" I shall not determine the case
upon this ground
as to this doctrine of
said,
without further consideration."

party would have confined his conto the
veyance
one third
he
to which,
2. That the
shown by the covenants
claimed to be entitled.
intention was
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
And even
the whole.
if
the cove-
nants had been confined by each
At the time when
that cause
was de-
was thought
to be impossible
to maintain the decision ; and it was
cided,
it
a subject of consideration among the

profession, whether it would not be
advisable to bring in a short act of
Parliament to revise
That case
it.
could not operate to weaken the rule

of law. Nothing could be more mischievous or contrary to law than to
hold that where a party professes to
party to his own third, for which

there is an established form often
convey
used, yet that would have formed no

ground for cutting down the convey-
particular lands, the operation of his

conveyance should be limited to the
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
character in which he purported to

join in the conveyance."
confining
the
covenants
of every
estate
all his
estate
and
which was vested
in
interest in
him
11 Anstruther, 11.
In Doe d. Hutchinson
v.
in the
Prest-
seller to the share
which he claims,
and the acts of the parties under
whom he claims his share." Accord-
widge, 4 Maule & Selw. 1 78, one of

three tenants in common in tail released to the others with a covenant
ingly, while Chancellor of Ireland,

Lord St. Leonards observed, in the
of warranty.
By the death of one
of the latter, the releasor became his
case of
Jones
took
it
Drew
v. Lord Norbury, 3
" that he
Touchc, 284,
be clear that where a per-
& La
to
son having several estates and interests in lands, joins in
his estate
and
conveying
interest in
them
all
to
purchaser, every estate or interest

vested in him will pass by that con-
heir,
and conveyed
premises to the
ed that whether this warranty passed

the right or might be used only by
way of rebutter, was immaterial to the
veyance, although not vested in him
defendants
tiffs
a party to the conveyance. It is true

in Fausset v. Carpenter, the
House of Lords took a different view.
that
who brought
same against the children

of the other tenant in common, who
had also died, for whom it was contendsuit for the
in the character in which he
became
his interest in the
plaintiff,
in either case the plainentitled, for they could
were not
not stand in a better position than

the releasor himself, "and the Court
having intimated an opinion that the
WAV OF ESTOPPEL OR REBUTTER.
BY
On
Leach went to the

v. Burdon, and treated an esopposite extreme in Bensley
lease and release, as possessing
of
deed
a
caused
by
toppel,
But
the high efficacy of actually transferring the estate.
the other hand, Vice-Chancellor
the authority of this case was soon after indirectly, if not

the Court of King's Bench, in Right
positively, denied by
2
Bucknell
V.
Bensley
wards
and Lord
v.
said,
Burdon, argued
3
from the bench, that
were barred by
the release in respect of so much of

the releasor's interest as the plain-
took
under the
release,"
defendant's counsel "

point,
the
made another
whatever interest
that
viz.,
passed by the release, passed to the

releasee as joint tenants and not as
tenants in common," but this was
"
subsequently abandoned, wherefore
judgment passed for the defendants."
J
2 Sim.
&
Stu. 524
see this case
cited supra, p. 191.

2 2
&
Barn.
Lloyd
;
Adolph.
upon the
Connor &
273.
See
v.
Lloyd, 4 Drury
Connor
report in the
the more full.
&
first
& War-
Lawson, 598.
of these books
The Chancellor
there reported to have said
is
" This
clearly settled
legal estate,
which the
In
acquires."
Lawson, the report is :
subsequently
Speaking from recollection,
Sir
v.
John Leach decided
in
I think
Bensley
Burdon, though I pressed him very
much upon
the point, that a lease
and release would operate by estopbut the Court of King's Bench

afterwards held otherwise, and the
current of authorities has established
pel,
the point."
The
Chancellor's recol-
however, was not exactly ac-
curate as to his
case of Bensley
The
is
effect
party
"
was now
it
lection,
bupra, p. 191.
ren, 369
himself, in
in favor of the estoppel, after-
lessors of the plaintiff
tiffs
who had
St. Leonards,
own
v.
position in the
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
conveyance, being an innocent conveyance by lease and release, could
in favor of the estoppel, and, it would

seem, in the first argument, not very
not operate by
" To
earnestly, as the report of it is,
the extent of securing the annuity,
the deeds of 1803 operate by way of
is
way of estoppel. It
John Leach, in Bens-
true that Sir
ley v. Burdon, 2 Sim. & Stu. 519, did

hold the contrary, and decided that
an estoppel could be worked by lease

and release. The point was subse-
But whatever be their opestoppel.

eration at law, it is quite clear, that
if
a person assumes to sell an estate

which he has no interest, and he
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
in
conveyance of
a conveyance.
this
nature has no
afterwards acquires an interest, this

Court would, upon a bill being filed
against him, compel
him
And
it
to
execute
is
equally

that a
conveyance of this nature lias
no
upon the legal
effect
1
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-
estate
ranty in that deed does not of
itself create
an estoppel,
how
an estoppel created, and what is the true principle that

appears to be properly deducible from the many authorities
is
The answer
cited
tate,
which he has not
into,
and he afterwards acquires such an
to this question
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-
clear, that
at the
a purchaser from him with
may
time such contract
entered
is
interest as will en-
deed, and always
is
by indenture, a
when it
notice would stand in the same situa"

tion as the vendor ;
and the Vice-
lease
Chancellor, in delivering his opinion,

" It is said that
said
estoppel can-
The
writer in his essay on Uses, 179,

citing Co. Litt. 352, advanced this
not be worked by lease and release,
opinion, in the face however of the

general opinion of the profession,
and, therefore,
it
come
was necessary to
and this point was
into equity,
treated at the bar as too clear
gument.
wise,
and
My
for ar-
impression was other-
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

"
but, as
by any other indenture
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 ma/le may

not estop if sufficiently solemn. It will
not, like a feoffment,
work an
estop-
pel by matter in pais, but it undoubtedly may produce that effect by
matter in writing ; and therefore as

a release by enlargement must be by
and release
cannot
operate
will estop
as
conveyance.
which he conceived to be inaccurate

from not discriminating between an
estoppel produced by the nature of
the assurance, and an estoppel effected by the nature of the instrument
by which
He
that assurance
is
made.
conceives therefore that the late
decision of the Vice-Chancellor, which

is
on
built
this principle,
is
in perfect
unison with the established distinctions of
our ancient law."
tinction thus taken
is,
The
dis-
however, very
refined.
i
In England, at the present day,
since fines have been abolished,
and
fcoilincnts shorn of their high eflica-
cy (Statute of 8 & 9 Viet. c. 106,) it

may bo said that the only cases in
which
after- acquired
to
titles
actually
former conveyance, so as
exclude a subsequent purchaser,
JMUffy
are those of leases.
455
make good his contract, equity will compel him

and make good the title, and that the presence
perform
able
to
him
to
it
in a deed purporting to convey an estate, has,

would seem, upon strict principle, no greater effect than
an averment that the contract between the vendor and pur-
of a warranty
it
chaser
is,
that that identical estate shall he actually trans-
ferred from the former to the latter
and such an
effect
can
he 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

2
reported since these remarks were first written, the

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" that a
son, who delivered the opinion,
grantor conveying
deed
of
or quitclaim
and
of
release,
sale, by way
bargain
by
States,
whole of
of
all
faith
his right
and
title to
a tract of land,
if
made
and without any fraudulent representations,
in
good
is
not
goodness of the title beyond the covenants in his deed.

deed of this character purports to
is understood to
and
convey,
convey, nothing more than the
responsible for the
interest or estate of
at the time
which the grantor
and does not operate
proceeds upon
view
seized or possessed
The bargain between
est not then in existence.

this
is
to pass or bind
and the consideration
an inter-
the parties
is
regulated
If otherwise, and the vendee has
conformity with it.
contracted for a particular estate, or for an estate in fee, he
;
in
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, therefore, if the deed bears on its face evidence that the grantors
1
Wightman
sissippi, 680.
v.
Reynolds, 24 Mis-
Van
Rensselaer
Howard, 297.
v.
Kearney,
1 1
456
intended to convey, and the grantee expected to become invested with an estate of a particular
description or quality,
and that the bargain had proceeded upon that

footing between the parties, then, although it may not contain any
covenants of
title in
legal operation
and
the technical sense of the term,

effect
still
the
of the instrument will 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
them from ever afterwards denying
that he
was
estop
seized of
the particular estate at the time of the conveyance." 1

1
of
After referring to the authorities
Doe
210
Scott,
&
Ellis,
son,
Right
Marchant
d.
;
Bowman
278
v.
Errington, 8
Taylor, 2 Ad.
Fairbanks
v. Williamand
(Me.) 96
Bucknell, 2 Barn. & Adolph.
;
Greenleaf,
v.
v.
to
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 dealing,
should be for-
281 (supra, p. 191), the opinion thus

continues " The principle declucible
ever thereafter precluded from gainsaying it. The doctrine is founded,
from these authorities seems to be,

that whatever may be the form or
nature of the conveyance used to
when properly applied, upon the

highest principles of morality, and
recommends itself to the common
pass real property, if the grantor sets

on the face of the instrument,
by way of recital or averment, that
sense and justice of every one. And

although it debars the truth in the
forth
seized or possessed of a particular estate in the premises, and which
he
is
deed purports to convey,

what is the same thing, if the
estate the
or,
seizin or possession of a particular

estate is affirmed in the deed, either
in express terms or
by necessary im-
particular case, and therefore is not

unfrequently characterized as odious,
and not to be favored, still it should

be remembered that it debars only
in the case
where
its
utterance would
convict the party of a previous falsehood, would be the denial of a previous affirmation
upon the
faith
of
plication, the grantor and all persons

in privity with him shall be estopped
which persons had dealt, and pledged

their credit or expended their money.
from ever afterwards denying tli.it

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 between parties and privies. The rea-
It is
son
is,
that the estate thus ail'mm-d
a doctrine, therefore, when properly understood and applied, that

concludes the truth in order to pre-
vent fraud and falsehood, and imposes silence on a party only when
in conscience and honesty he should
not be allowed to speak."
BY
But whatever may be

produced,
least
nical
"
upon
it is
the
means by which
submitted that the
strict principle,
meaning,
for
effect itself
457
the effect
is
should not, at
be that of an estoppel in its tech1

said, such a result
as has been well
necessarily tends to give to a vendee who has been careenough to buy what the vendor has not got to sell, a
less
who have expended

and without being guilty of neg-
preference over subsequent purchasers

their
in
good faith,
and the inconsistency of the doctrine referred to
with the recording acts in force on this side of the Atlantic
money
ligence,"
has already been noticed. 2

It sometimes
happens that a purchaser, in giving to his
vendor a mortgage 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
This doctrine
nants to himself.
is
his vendor's cove-
sought to be based upon
the principle that "estoppels should be reciprocal," 3 but has
An
illustration of this doctrine is
found in the very recent case of Temple v. Partridge, 42 Maine, 56, where
an action on the case
(in the nature
of a writ of deceit,)
the plaintiff
in
proved that the defendant was her

agent, and by false representation as
to the value of the land,
induced her
him at an under-value.
The defendant had subsequently resold the land at an advanced price
with covenant of warranty, and offerto sell
ed
to
it
prove that the price he paid the

plaintiff was a full one, by reason of
to
a prior incumbrance in the chain of

title
but the Court held that the
her
defendant was estopped by the cove39
nants which he had given from showing that they were untrue.
1
Mr. Hare's note
to
Duchess of
Kingston's case, 2 Smith's LeadingCases.

2
Supra, p. 430.
In the recent case of Cross v.
Robinson, 21 Connect. 387, where
3
the assignee of a mortgagee

brought
ejectment on a satisfied mortgage, it

was held that not only was the plaintiff
entitled to recover because the
payment was not made
till
" after
the law-day," but that the

mortgagor
was estopped by the covenants for
seizin
and of warranty contained in
the mortgage, from denying the
title
4,58
no foundation whatever
2
in
yet,
or
authority.
left undecided in a late case in
Although the question was

Massachusetts,
reason
in
either
one
still
more
it
recent,
was held
law of estoppel was inapplicable to such a

The principle was stated with clearness in a case in
that the
Hampshire, where,
case.
New
in a suit
covenants contained in
brought by a mortgagor, upon

a deed made to him on the same day
the mortgagee, Gilchrist, J., in delivering the opinion of

" The
the Court, said
plaintiff's covenant is a direct alle-
by
gation that there

deed, but
when
was no incumbrance when he made
his
no admission that there was no incumbrance
it is
made
the defendant
his deed.
How
does the cove-
nant estop him from showing that there was no incumbrance at the date of his own deed, in a suit against him on
his covenant
The
defendant's deed
must have preceded
the plaintiff's deed.

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-
The
brance.
fact that the plaintiff
is
reconveyed,
defendant had not a
Could
it
had a
title
when he thus
perfectly consistent with the fact that the
be said,
if
title
when he conveyed
the defendants had
to the plaintiff.
mortgaged the
land,
and then conveyed to the plaintiff, who mortgaged to the

defendant, and then the plaintiff had extinguished the first
mortgage, that the plaintiff should not recover of the defendants the sum he had thus paid, because his mortgage
a covenant
contained
against
of his mortgagee. Care should perhaps be taken in the application of

this case in practice.
l
In Lot
v.
Thomas, Pennington,
300, the Court said: "If

this doctrine were true, Lord Coke
(N. J.)
was not only
justified in saying that
incumbrances
True,
he
estoppels were odious in law, but he

might have gone further and added
that they were detestable."
2 Fitch
v.
Sumner
Haynes
82.
9 Metcalf,468.
Barnard, 12 Id. 461.
Stevens, 11 N. Hump,
Seymour,
v.
v.
BY
459
covenants against incumbrances, but it is against those of

own creation, and not such as the defendants may have
his
1
So, in a recent case in Maine,
charged upon the land."
one sold land with a general covenant of warranty, taking
a mortgage for the purchase-money which contained a simiThe mortgage was subsequently assigned,
lar covenant.
and afterwards foreclosed.. The mortgagee died insolvent,
his widow, who had not joined in the original conveyher dower, which was paid by the owner of
recovered
ance,
the land, who then sued on the covenant in the mortgage.
when
But
that
the Court in giving
judgment for the defendant, said

when both a deed and the mortgage for the purchase-
" contain covenants of

warranty, the covenants are
not considered to be mutually acted upon each by the other ;
money
those in the mortgage do not estop the party claiming to

2
recover upon those in the absolute deed.
The grantor in
the absolute deed had sold the land ; the mortgagee had
it
only, for the security of the purchase-money. By
the sale, the grantor received a consideration, and is bound
pledged
by
the
his covenants to indemnify the grantee for all defects in

title, and for incumbrances existing at the time of the
3
As between
these parties, the purchaser

really pledges nothing but the interest which he obtained
conveyance.
under the deed to him, and

perfection in the
the mortgage is
security,
title
is
existing before the conveyance.
redeemed,
and ceases
answerable to him for no im-
it
has discharged
to be operative.
If
which passes by the absolute deed

grantor or those who claim under him.
title
it is
is
its
If
office as
foreclosed, the
restored to the
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.
Citing
Maine, 497.
Cannell, 32 Maine, 125.

v.
Staples, 28
Brown
Citing
Hamp.
28.
Haynes
v.
Stevens, 11 N.
460
covenants therein
made by
time of his conveyance
would
the mortgagee, or existing at the

for the effect of such
recovery
he parted with in the convey-
be, to obtain all that
ance, and the value of the incumbrance, which he is relieved

from removing by the foreclosure. Such consequence would
And the law as thus stated

be unjust."
1
and
reason
authority.
by
Where, however,
is
supported both
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 himsuch a relation between the parties continued
unchanged the eviction had not been of his possession, but
2
of that of his grantor and mortgagee.
self while
The
rule which, in this country, sanctions the admission

show that the consideration of a purchase
vof evidence" to
Hubbard
v. Norton, 10 Connect.
(but see and consider Cross v.
Robinson, 21 Connect. 387, cited su-
433
Hardy v. Nelson, 27
pra, p. 457)
Brown v. Staples, 28
Maine, 528
Id. 497 Sumner v. Bernard, 12 MetHancock v. Carlcalf, (Mass.) 461
;
ton,
61
Gray, (Mass.)
Thomas, Pennington, (N.
Lot v.
300
J.)
Geyer v. Girard, 22 Missouri, 120;

Connor v. Eddy, 25 Id. 72, where
the text was cited, and it was said
that " the law of estoppel has no application
in
So, "if a
such cases."
man makes a feoffment with warranty,

who cnfeoffs the first feoffor, upon
condition that that warranty remains,
and lie shall vouch by reason of the
first
warranty."
Bointon
case, cited in Rolls
&
&
Chester's
Osborn's case,
4 Leonard, 251. So, in Co. Litt. 390,

" If a man make a feoffment
it is said,
in fee, with warranty to the feoffee
his heirs and assigns, and the feoffee
re-enfeoffeth the feoffor
and
his wife,
or the feoffor and any other stranger,

the warranty remaineth still; or if
two make a feoffment with warranty

one and his heirs and assigns, and
to
the feoffee re-enfeoffeth one of the

feoffors, the
main."
So,
of Kellog
v.
warranty doth also reit
was held
Wood, 4
in
the case
Paige, (N. Y.)
a general warranty in a reconveyance made by a vendee to his

77, that
vendor will extend only to incumbrances suffered by the former while

he held the estate,
2
Gilman
(Mass.) 330.
v.
Haven, 11 Gushing,
BY
461
was, in reality, greater or less than that expressed in the deed,

1
But in a recent case in New
has already heen adverted to.
2
Jersey,
the rule has heen carried
somewhat
farther than
merely to sanction the admission of evidence to increase or

The plaintiff condiminish the consideration as to amount.
veyed land which he had previously mortgaged ; and having, after the sale,- discharged the incumbrance, sued the
purchaser for its amount, on the ground that by an agree-
ment between them, the latter expressly agreed to pay off

the mortgage.
It was urged for the defendant, that the
was
plaintiff
estopped by his covenant against incumbrances
from proving the existence of the mortgage, or that the
but the Court held (the
defendant undertook to pay it
;
Chancellor and three 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 therefore came within the doctrine of the American authorities
;
and secondly, that the law of estoppel could not apply, as it

was said that the question was one merely collateral to the
So, in
deed, the action not being founded directly upon it.
a very recent case in Massachusetts, 3 where one having conveyed 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
The Court below rejected

had agreed to pay them.
the evidence as inadmissible to contradict the covenant, but
latter
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 incumbrance was not within the true meaning of the covenant,
1
Supra, p. 65
Bolles
v.
et seq.
Beach, 2 Zabriskie, (N.
J.) 680.
39*
p re ble
v.
(Mass.) 549.
Baldwin, 6
dishing,
46
as the defendant
had previously become hound
to
pay the
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
taxes.
which the question as to the construction and effect

of the covenant was not raised.
It was not, therefore, it
case, in
was
Court to give a decided opinion
said, necessary for the
upon the question whether
in
an action for the breach of the
covenant, the evidence rejected in this case would be admis1

sible or not.
But
the law
was more
in
strictly held
an early case in
2
testatrix
Massachusetts, of some apparent hardship.
sold land to one whom she afterwards appointed her exec-
was lawfully seized, had good

the premises were free from in-
utor, covenanting that she
right to convey, and that
The purchaser being
cumbrances.
evicted after her death,
credited himself, in the settlement of the estate, with
$1,000
damages arising from a breach of these covenants, and

reply to proof that he had himself formerly conveyed the
as
in
same premises
to the testatrix, with similar covenants,
that the adverse
title
was paramount
to his
own
and
originally,
and was covered by the covenants he gave, offered to prove

that when he originally purchased, it was merely as agent
was paid by her,

of
an
bought
pursuance
agreement with her,
to
her
without
and conveyed
receiving any consideration
for the testatrix,
that he
that the consideration
in
" to
was, however, held by the Court, that
admit the evidence offered would be to permit him directly
whatever.
It
to contradict his deed, in that
he declared himself to be the
land, and to have lawful right to convey it,

express and unequivocal covenants would be de-
owner of the
and
his
feated
i
by verbal declarations. ... If the appellant
For the
cases
supra, p. 128.
upon
this point, see
Eveleth
v.
suffers,
Crouch, 15 Mass. 307.
BY
it is
because he was incautious in the
his business."
So
in a case in
New
463
mode
of conducting
1
York, it was held
where one had conveyed in fee with a covenant of

warranty, he was estopped from alleging that he had such
that
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
few, however, may here be

estoppel of the grantor.
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
of the grantor, and therefore, that in
title
an action of
dower brought by the widow of the latter, the defendant

was estopped from showing that the husband's title was
2
defective, and the same rule has, in some instances, been
3
elsewhere applied.
In Massachusetts,
4
" the
was, however, said, that
gran
tee may be permitted to show that his grantor was not
"
seized, as is every day allowed in actions of covenant ;
and
it
England, in the case of Gaunt
in
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
i
Squire v. Harder, 1 Paige, (N.
Y.) 495.
a Hitchcock v.
Harrington, 6 Johnson, 290 Collins v. Torry, 7 Id. 278
Davis
Y.) 65
Darrow, 12 Wendell, (N.
v.
;
Bowne
Sherwood
v.
v.
Potter, 17 Id. 1G4
Vandenburgh,
Hill,
(N. Y.) 308.

3
Gayle v. Price, 5 Richardson's
Law R. (S. Car.) 525 Hains v.
;
Gardner,
Hamblin
Bank
v.
Maine, 69
Fairfiold,
(Me.)
383
of Cumberland, 19
Stimpson
v.
Thoinastou
'
Bank, 28 Id. 259, where it was held

that where two grantors conveyed
land, with a covenant that they were
lawfully seized thereof and would defend the same, the grantee was held
to be estopped, in an action of dower
by the widow of one of them, from
showing that the surviving grantor
was seized of a greater proportion,
and the deceased of a less one than
an undivided moiety thereof.
4 Small v.
Proctor, 15 Mass. 499.
5 3
Bingham's N. C. 69.
4<64<
widow, from showing that the premises were leasehold,

instead of freehold, as described in the deed.
New
In
York, moreover, very soon
decisions above referred to, their rule
after the later of the
was followed
in
one
case with reluctance, and solely on the ground of adherence

1
to precedent.
Soon after, it was held, 2 that whatever might
be the rule where possession had accompanied the deed, yet

that where there was no such possession, there would be no
In the recent case, however, of Sparrow v. Kingthe whole doctrine was reconsidered on the grounds
estoppel.
man,
both of principle and authority, and the prior decisions over4
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
" which
by feoftment,
operated on the possession, and if correctly pursued, always passed a freehold or fee simple to
ruled.
But
the feoffee.
in the case of a conveyance by grant, baror

sale,
release, the very point is whether an estate
existed in the grantor, and has passed, to be Accepted."
gain and
The same
two
in
subject
5
was soon
arid the
cases,
cently the case of
law held the same way, and very
re-
has been affirmed
v.
Kingman
may now be considered
Sparrow
on error, 6 so that the law
New
after again elaborately reviewed
as settled
accordance with principle, that the mere

York,
acceptance of a deed, whether with or without covenants,
in
in
will not
estop the grantor
either as against himself, or
title,
him. 7
1
from controverting
So
Sherwood
v.
Vandenburgh,
Shoemaker, 3
Hill,
(N. Y.) 518.

*
S. C. (N. Y.) 180

8 Id. 406.
6
Kingman
v.
Finn
v.
Sleight,
Sparrow, 12 Barb.
S. C. 208.
Comstock, (N. Y.) 245.
Co. Litt. 352
5 Averill
any one claiming under

it was
in a very recent case in Massachusetts,
Hill, (N. Y.) 307.

2 Osterhout v.
3 1
his grantor 's
v.
a.
Wilson, 4 Barbour's
Of
course, however, such a rule
does not apply in the case wlu-iv a
vendee obtains
an.l
keeps possession
BY
4<65
held that the acceptance from the same grantor of a deed

with covenant of general warranty of upland hounding on
the sea-shore, and of a deed with limited warranty of the
front thereof, did not estop the grantee to claim
flats in
to the
flats.
title
however, heen held that where at the time of the

has already vested in himself the
conveyance, the purchaser
It has,
the premises, he
estopped by his acceptance

2
of the conveyance, from suing on the covenants it contains,
for " they only extend to a title existing in a third person,
valid
title to
is
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

3
premises."
The
question
how
far
deed operates as
one which has already been
in a
recital
an estoppel to the grantor, is

4
In a late English case, 5
noticed.
seems
it
doubted whether, when a deed contained a
to
have been
recital of title,
the purchaser, upon being evicted, was not estopped from

denying the accuracy of such recital in an action on his
title ; such a doctrine, however,
might operate
with injustice, and in a subsequent case it was expressly
covenants for
of land under a contract of sale which

is
not fulfilled
as
he
will,
of course,
Porter v. Sullivan, 7 Gray, (Mass.)
441.
under such circumstances, be estopped from setting up a defect in the

title, either as a defence to an eject-
2 Fitch v.
Baldwin, 17 Johnson,
166; Beebe v. Swartwout, 3 Oilman,
179
Furness v. Williams, 11
(111.)
ment or
Illinois,
in a suit for the purchase-
money. This, however, obviously depends upon different principles. See

the note to Duchess of Kingston's
case, 2 Smith's
Leading Cases.
*
5
229.
Fitch
r.
Supra,
Baldwin, supra.
p.
Young
Bench, 310.
463, note.
v.
Raincock,
Com.
466
THE OPERATION OF COVENANTS FOR TITLE,
ETC.
So, in a recent case in Mississippi, it was held

that a purchaser who had received a deed with covenant of
"
excepting only the widow's right of dower,"
warranty,
was not estopped by such exception from controverting the
denied.
fact of the marriage.

l
Stroughill
781.
Bench R.
v.
Buck, 14 Queen's
Stevenson's Heirs
12 Smedes
&
v.
McReary,
Marsh. (Miss.) 57.
IMPLIED COVENANTS, ETC.
CHAPTER
467
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
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
the
was, then, this warranty, which, being an incident of the

peculiar tenure by which lands were then held, was implied
from homage. 1
When it became usual
by
to authenticate the transfer of land
charters or deeds, a warranty
of feoffment, dedi.
and of the
The
effect
was implied from the word

2
of the statute de biyamis
emptores? which have already

was,
to,
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 warstatute of quia
been referred
ranties
i
311
9
Supra
;
by the word tuarrantizo? and which were termed

j
p. 2
Fitzh. Nat. Brev.
Gilbert's Tenures, 139.
4 Ed.
3 18
I. c. 6.
Ed.
whatsoever
no
sort of
is implied
they bearing
analogy to the original
;
feudal donation.
And
therefore in
Supra, p. 2.
5
Indeed, says Blackstone (2 Comm.
300), "In other forms of alienation,
to add
an express clause of warranty, to
bind the grantor and his heirs, which
is a kind of covenant real, and can
gradually introduced since that statute (quia emptores), no warranty
only be created by the verb wnrSo in the reign

rantizo, or warrant."
I. c. 1.
such cases
it
became necessary
HOW COVENANTS
IMPLIED COVENANTS, AND
468
warranties in deed, as distinguished from implied warranties,

1
which were termed warranties in law.
In
many
cases,
however,
which
in
and
privity of estate
subsisted, the warranty remained as at common

" if a man make a
law, and therefore,
gift in tail, or a lease
tenure
still
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

acts of
dedi,
which extended
to the
and was not limited
all
to
persons claiming by title,

3
those of the warrantor himself, was, however, unrestrained
by any express warranty which

of Elizabeth, it was said, "If a man
make a feoffment in fee without warranty, the purchaser is entitled to the
charters, etc., for as the feoffor is not
bound to ivarrant the land, he cannot

"
BuckCo. Litt. 6 a
be vouched
So that in
hurst's case, 1 Coke, 1.
;
a conveyance of the freehold there

was, at that time, no warranty implied as a consequence of tenure, the
only implied warranty being derived
the deed might contain.
Coke, 16,
of the grantor.
No warranty of a freehold was implied from the word concessi ; (Co.
to
384
Litt.
the
life
and see Mr.
a,
Butler's
Nokes's case, 4 Coke, 81, for

note)
although in the statute de bigamis,
;
" dedi
et
concessi are
coupled
to-
doni
gether, yet these words, ratione
the
do
warranty
proprii,
appropriate
and agreeable to this

our books, is the comand constant opinion of learned
to dedi only
probable that but for
is
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,
words
from which
is
the
they (that
warranty
is
rantizo"
2
Co.
amount
implied),
warranty without
from the word dedi, and that was

limited
it
Co. Litt. 384
384 b
Litt.
to
verb
war-
Fitzh.
Nat.
this
a.
Brev. 134, and the burden of this

warranty bound the heirs of the
grantor and the assignees of the reversion,
and
its
benefit enured to the
assignees of the grantee.

3
Touchstone, 166, 167.
4 " For if a man make a feoffment
in
deed by dedi, and
in the
deed doth
S. ami
warrant the land against J.

his heirs, yet dedi
is
a general war"
of the feollor
exposition in
ranty during the
mon
men at this day," 2
And from the cases
Co, Litt. 384 and so says Coke, in

Nokes's case, 4 Coke, 81, "I heard
tin- Lord Dyer and the whole Court
Year Books
in
Institutes,
276.
cited from the
Spencer's case, 5
life
of C. P.
(Ilil.
14 Reg. Eliz.) resolve
FOR TITLE MAY BE LIMITED OR QUALIFIED.
469
The remedy upon an implied warranty of a freehold was

same as that upon an express warranty, viz., by voucher
the
and tvarrantia
As, however, since the statutes de

and
bigamis
quia emp tores, the warranty implied by the
word (Icdi endured no longer than for the life of the warcharter.
burden did not, of course, descend upon his heir.

warranty did, however, descend upon the
heir of the warrantee if the latter died in the lifetime of his
rantor,
The
its
benefit of the
warrantor
effect
2
;
and here there was a difference between the
of the implied and that of the express warranty, since

latter, neither its burden nor its benefit descended
under the
3
But although the
upon an heir unless expressly named.
benefit of the implied warranty descended to an heir, it
that if a
man make
a feoffment by
and with express warranty in the deed, he may use the one
So in
or the other at his election."
Rant v. Cock, Oo.Eliz. 864 Trenchthis
word
dedi,
ard
Hoskins, Littleton's Rep. 64
v.
Johnson
v. Procter, 1 Bulstrode, 3 ;
It
Butler's note to Co. Litt. 384 a.
was
nevertheless held
Welch,
Kent
a warranty during the

grantor,
well
is
life
settled
of the
Co. Litt.
384 a, 2 Inst. 275. But we know of

no authority or sound reason for extending this technical rule to an instrument which purports to be and is
but the execution of a power given
statute, and in which the grantor
by
v.
neither assumes to have nor to con-
Johnson, 259, that the cove-
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
in
nant implied by the word " give,"
was restrained by any express covenant for title which the deed might
contain, and the decision was based
upon Nokes's case, and a similar decision was made in Morris v. Harris,
9 Gill, (Md.) 27.
Nokes's case, however, decided that implied covenants
in a leasehold were, as will
be pres-
ently seen (infra, p. 483), re-strained
by express covenants, but this doctrine was never applied, at common

law, to the implied warranty of a freeIn the late case of Dow v.
hold.
Lewis, 4 Grav, (Mass.) 473, it was

That in a feoffinent at common
said "
law the word
dedi, 'give,' implied,

in the absence of express covenants,
40
sheriff or other officer of the law.

1
Fitzh. Nat. Brev. 312;
so,
im-
plied covenants in a leasehold are declared upon as if express covenants ;
Grannis
36;
v.
Clark, 8 Cowen, (N. Y.)

v.
Keith, 4 Wendell,
Barney
(N. Y.) 502.

2 Co. Litt. 384
3
" If a
a.
man
doth warrant land

to another without this word
(heirs),
vouch " Co. Litt.

This must not be thought to
his heirs shall not
384
b.
be in conflict with an equally true

position, viz.,
" that
though in the
it be
not men-
clause of warranty
470
seems that
1
it
dedi)
did not pass to an assignee ; for in Spencer's

resolved that if a man make a feoflfment by this
it
was
case,
word
HOW COVENANTS
'
which implies a warranty, the assignee of the

in other words, the implied warshall not vouch
feoffee
ranty did not run with the land.

By the common law, moreover, a warranty
was implied
2 "
this word excamCoke,
the rule at the
and
such
is
a
doth
bium
warranty,"
imply
3
So also in
unless where altered by statute.
present day,
"
in every exchange,
for," says
the case of a partition, and in both these species of assurance there was not only an implied warranty, but a condi-
which, in case of the eviction of either party, gave a
tion,
tioned to
whom,
yet
it
shall
be
in-
"
Co. Litt. 383

tended to the feoffee
b Herrin v. McEntyre, 1 Hawks,
;
(N. Car.) 410.
The
benefit of the
implied warranty, which engendered

the right of entry in case of eviction
(Shep. Touch. 290; Finch L. 27;

Shep. Prac. Couns. 2). In the second instance, because the allotted
whom
warranty enured to the person to

the land was conveyed, but
not to his heir unless the latter was
lands became liable to the uses of the
named.
allotted.
Grimes
v.
Redmond, 14 B. Mon"In some instan-
Mr. Hughes, in
his recent
Practice of Sales of Real Property,

" an abstract
Vol. 1, p. 246,
relating
intended to be
only to the property
as
conveyed, will not alone suffice
;
where
lands
have been
which they were
statute of 4
&
5 Will.
however, made
some important alterations in the law
roe, (Ken.) 237.

ces," says
The
IV. c. 30,
Coke, 16, 4th resolution.
2 Co. Litt. 384.

3
estates in respect of
taken in
24, 25, has,
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

under the powers of that act
and by a still more recent enactment
(8 & 9 Viet. c. 106), deeds of exchange have no longer the effect of
fields
exchange (4 Rep. 121 Prest. Abst.

under inclosure acts,
87), or allotted
in both of which instances an abstract
must not only be furnished of docu-
spective,
ments of
title relating to the estate

sold or allotted, but of those also of
ances made previously. As to these,

therefore, a double abstract will still
the estates given in exchange, or of

tinoriginal estates in respect of
be necessary." See also, passim, 1

Preston on Abstracts of Title, 303,
which the lands were allotted. The

why a double title is iv<iuiiv;l,
in Allnatt
reason
in the
first
instance,
is
because the
foundation of an exchange was an
creating any warranty or right of reentry, or implied covenant, by implication.
But this statute is only proand will not affect assur-
and the comments upon that passage

In
on Partition, 162.
Barton's
MSS.
Points of Conveyanc-
ing (Barton's Conveyancing, London,

1
other portion.
right of re-entry upon the
ever, this difference between the warranty
There was, howand the condition.
When
a coparcener took advantage of the condition, she

defeated the^ partition in the whole, but when she vouched
force of the warranty in law, the partition was not de-
by
feated in the whole, but she recovered recompense for the

2
part that was lost.

This condition and implied warranty only held, however,
of estate, and hence when one parcener aliened,
in
privity
and thus severed the connection Between herself and her

3
This,
coparcener, the condition and warranty were lost.
however, obviously did not deprive of these rights the parcener who still retained her share, nor were the warranty
and condition
were not
lost if the alienation
privity thus wholly destroyed.

By the statute of 31 Hen. VIII.
c.
1,
total,
and the
which gave
to
and tenants in common the right of partition

" that
was
every of the said joint tenprovided
by writ,
ants or tenants in common and their heirs, after such parti-
joint tenants
it
tion
made,
shall
and may have aid of the other or of
heirs, to the intent to deraign the

1831),
it
is
said
(p.
107),
"As
the
their
warranty paramount, and
Miller on
Partition,
245,
passim;
word exchange implies a mutual warranty, it would seem that the usual
Feather
covenants for
ranty implied when partition Avas

made between joint tenants and u-nants in common, who before the stat-
title,
quiet enjoyment,
and further assurance, might be safely omitted in a deed of exchange at

the
it is
common
said, are
law, as those covenants,

implied by the word ex-
Strohoeeker, 3 Penn. 508.

At common law, there was no warv.
ute of Hen. VIII. were not compelmake partition. If a partition
lable to
change ; but express covenants are

more extensive, and better to be re-
was made between them, it would be

voluntary, and the law would no more
Of
imply a warranty than in a convoyance between any other vendor and
lied
on
course,
than
implied ones."
under such covenants, the
common-law
right of re-entry in case

of eviction does not exist Bartramy.
;
Whichcote, 6 Simons, 92.

i
Co.
Bustard's case, 4 Coke, 121
a Allnatt on Partition, 158
;
Litt, 1 74
vendee
Rector
v.
Waugh,
17 Mis-
Picot v. Page, 26 Id. 420.

souri, 26
2 Bustard's
.case, supra.
;
Allnatt on
Smith
v.
Partition, 161; see

Sweringen, 26 Missouri, 567.
HOW COVENANTS

to recover for the rate as
used between coparceners after

partition made by order of the common law."
This statute, it will be perceived, gave the right to the
is
and as between joint tenants and tenants in

;
the condition neither exists
by common law or by
warranty only
common,
statute.
Unless, however, the partition were by writ, it would

that neither warranty nor .condition were
implied, and
seem
it
was held
in a
very elaborate opinion in Pennsylvania, in
1
Weiser, that where the partition was
by deed, the rights of joint tenants and tenants in common
to a recompense in case of a loss,
depended solely upon the
the case of Weiser
covenants
it
v.
contained, and not
upon any warranty
in law.
In the subsequent case, however, of Patterson v. Lanning, 3

tenants in common by 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, without 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 analogy, 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
State by our law of descents, should be regarded as

coparceners, in order that their partition by deed of the
this
5 Watte, 279.
So
in Morris
(Md.) 26,
it
by deed between coparccucrs, the warranty implied by law

was superseded by the express covepartition
nants in the deed.
3 10
and see StroWatts, 135
hecker v. Hansel, 5 Penn. Law Jour.
327 Seaton v. Barry, 4 Watts Si
;
Harris, 9 Gill,
was considered that in
v.
Serg. 184; Allen v. Gault, 8 Casey,


lands held in
common by them
shall not
have the
4<J8
effect
of
the lands
destroying any previous warranty made, securing
to their ancestor, as might, perhaps, he the case, were they
to be considered in the light of tenants in
common
created
by purchase."
As
effect at the present day of a

respects the practical
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
bill
for contribution
and reimbursement against his co-tenant and their alienees,

that a bill in equity was the proper and most convenient
l
it was
thought to be
a personal action of covenant could be
maintained upon a breach of the implied warranty.
remedy
and
in
Weiser
v.
Weiser,'
at least doubtful if
v.
Sawyer
Cator, 8
Humphreys,
(Tenn.) 256, 287. "The right of

entry does not exist, because there
no implied condition given by the

statute, and because the right to make
is
upon unoccupied land
actual entry
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
and
in this State,
lete in
England.
is
even now obso-
We have been able
no precedent for an action of

covenant upon such implied warIt then
ranty.
necessarily follows,
to find
that such relief
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
remedy in a court of chancery,

either by setting aside the partition
when improperly made, and it can
the
be done without injustice to others,

or by contribution, when it is most
proper.
In
this case contribution is
seems to us to be the
most practicable and just mode of
asked, and
it
in a court of
chancery, or
must be given by bill

it must
compensating the injured parties,

and it seems to us that they are en-
be altogether denied, a
thing that
titled to this against the co-tenants,
justice
It
and equity
seems to
cery
the
is
us, that
their assignees, because the par-
wiM. not permit.
and
a court of chan-
tition is
to give
peculiarly adapted
which is, upon the princi-
relief,
ple of contribution, a subject over

which such courts have so
long had
almost exclusive jurisdiction.
40*
The
made, not by deed, but under

and because the complainants have lost a portion of land
allotted them by' paramount title."
the
statute,
5 Watts, (Pa.) 279.
HOW COVENANTS
has, however, been suggested
It
by very distinguished
were
legal authority, that in the creation of a freehold there
other words besides those already mentioned, which implied

a warranty.
Lord Hardwicke is reported to have 'said l
" When a man has
granted and conveyed, be the right real
:
or pretended, the very words grant' and convey, imply a

"
and, some
warranty and a covenant for quiet enjoyment ;
years after, the same distinguished Judge again remarked

" It is said the word
grant of itself imports a covenant
which
does at law, but that
it
covenant, which
lar
there
is
is
where there
here;"
is
no particu-
and Lord Eldon,
moreover, when Chief Justice of the Common Pleas, observed in the case of Browning v. Wright: "Now these
words granted, bargained,
sold, enfeoffed and confirmed cerin

a
covenant
law, the effect and meaning of
tainly import
which would be affected by the subsequent words of the
indenture."
1
Mann
Clarke
Ward,
v.
2 Atkyns, 228.
v.
Samson,
&
Pull.
Ves. Sen.
100.
3 2
Bos.
"
13.
Buller,
J.,
According to the ancient

mode of conveyance, deeds were confined to a very narrow compass. The
words grant and enfeoff amount to
added
a general warranty in law, and have
The
"
these expressions,
were
it
c(icla
should be
none of
them were
essential to the case before
the Court,
and no authority whatever
was cited
in
law upon these words,
demise, grant, &c., the assignee shall

have a writ of covenant," this is applied only to the case of a lease. The
question whether the words grant and
was presented
times, are
and this, he added,

law implied
has been settled since Nokes's case.
all
said,
covenant
modern
for the purpose of qualifying the general warranty which the old common
observed,
But Nokes's
enfeoff created either a covenant or

a warranty in the case of a freehold,
cov-
intended for the protection of the

party conveying, and are introduced
Of
Buller.
which have been
the same force and effect.

enants, therefore,
introduced in more
by Mr. Justice
case was not a conveyance of a free" a demise of a

term ; " and
hold, but
when it is there
that " for this
in support of
them, except
in
Brown
v.
Haywood,
Freeman, 414,
and decided in the negative and in
Spencer's case, 5 Coke, 16, "it was
resolved by Wray, Chief Justice, and
the whole Court, that this word (con-
3 Keble, 617, S. C.
cessi or demist), in case of a livi-hold
of inheritance, does not import any

See also Viner's Abr.
warranty."
Mr. Evans, in
Covenant, C. 19.
a note to Stat 4 Ed. I. (1 Coll. of
Statutes, 192), observes,
u that
it
is

however, he remarked that none of these exwere
necessary to the decision of the case hefore
pressions
In the year 1804, however, the question was
the Court.
It should,
New York, in the case of Frost v.

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, barin
directly presented
1
Raymond, where
it
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 distinction between the force and effect of the words give
and
'
'
It
grant.'
The
feudal law.
but
cal,
arose from
it is
established operation.
sell,
alien
reasons derived from the
now become merely techniclearly exists, and we are cer-
distinction is
sufficient that
tainly not at liberty to
gain,
artificial
it
confound the words, or change their
The
other words in the deed,
'
bar-
and confirm,' have never been considered as
2
The only
implying any covenant whatever in any case.
dictum that appears to oppose the law as now laid down,
is that of Lord Eldon, in the case of
Browning v. Wright,"
and
to
this
singular that a
nence
as
Mr.
view of the law, consistent assent has been
Judge of such emi-
J. Buller should
have
stated that the words grant and enfeoff amount to a general warranty
in law,
effect,
and have the same force and

and should refer to Nokes's
case as settling that point, as Nokes's

case relates to the demise of a term,
in which the words demise and grant
operate as a covenant."
1
2 Caines, (N. Y.) 188.
The dictum
of Lord Eldon in
Browning v. Wright was, indeed, directly approved by Huston, J., in

Christine v. Whitehill, 16 Serg. &
Rawle, (Pa.) Ill, but the case was
decided by a bare majority of the
Court, Gibson, C.
J., dissenting,
and
was overruled when it came again

before the Supreme Court (Whitehill
v. Gotwalt, 3 Penn. R. 326), in an
able opinion delivered
J.
by Kennedy,
HOW COVENANTS
4<76
1
given in this country, and it may be safely said that in the
creation or transfer of an estate of freehold, no covenant
day by the common law,
for title is implied at the present
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
On
this
word. 2
the creation of an estate less than freehold, however,
has been from the earliest times implied

from the words of leasing, 3 " such as demisi, concessi, &c.,"
a covenant for
Young
v.
Hargrave's AdminisBlack
2), 63
Ohio (Part
trator, 7
v.
v.
title
Gilmore, 9 Leigh, (Va.) 449 Gee

Pharr, 5 Alabama, 588 Allen v.
;
Sayward, 5 Greenleaf, (Me.) 230;
In the recent case, however,

Starling v. Prince, 15 Ju632, 5 Eng. Law & Eq. R.
nant."
of
Doe
rist,
d.
420, it was held that the statute did

not so entirely take away the effect
Murphy, (N.
v.-
Hollis, 7 Gill
of the word grant as to render ineffectual a conveyance which other-
(Md.) 311; Huntly v.

Waddell, 12 Iredell's Law, (N. Car.)
wise would operate as a covenant to

stand seized to uses.
Rickets
v.
Car.) 346
& Johns.
Dickens,
;
Deakins
33.
2
The
cases of Allen
v.
Co. Litt. 45 b
Cro. Eliz. 214
Andrew's
case,
Nokes's case, 4 Coke,

81
Spencer's case, 5 Coke, 16
Touchstone, 160, 165. In Style v.
Sayward,
Rickets v. Dickens, and Deakins v.
Hollis, cited supra, not only deny an
implied warranty to any other words
than dedi, but hold that since the
statute of uses, even that word im-
the Justices, that upon

solved, by
the words demise and grant, without
plies no warranty, in conveyances

taking effect under that statute. In
other words which comprehend any

warranty in them, this action well
Roebuck
lies."
v.
Dupuy,
Alabama, 538,
this last question was* left
By
& 9
the recent English statute of

Viet. c. 19G,
4, it is declared
8
" that the word
'
'
grant
undecided.
in a
'
give
or the word
deed executed
after the
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-
first
'
'
'
Hearing, Cro. Jac. 73,
it
was " Re-
all
On
yielding
the other
hand, the words

also a
and paying implied
covenant on the part of the lessee

to pay the rent reserved; Butler's
note to Co. Litt. 384 a; Bac. Abr.
Covenant B.
R. 465.
Royer
Some
v.
Ake, 3 Penn.
old authorities are to
be found whieh deride that these

words have ;v still larger signification,
and that they make an express covenant, Ilellier
v.
Gaspard,
Siderfin,

and such
26G
is still
Newton
the law at the present day,
Osborn, Styles, 387
v.
477
and the cove-
Penn. State R.) 488
and see Jen-
but even at that day the authority of

these eases was not uncontradieted,
Robertson, 19 Eng. Law &

Eq. R. 550. In a recent case in New
Jersey, however, will be found an
Anon,
able examination by counsel of the
Porter
Siderfin,
241, note
inz, 206
arid
447;
Saunders,
kins
in
conclusion,
and a decision accord-
Burgh,
have since consistently held that the
ingly
kie,
Mills
v.
yan
Auriol, 4 Id. 98
v.
Arthur,
Iggulden
v.
&
Barn.
264
Cress.
Vyv410
Church
Kunckle v.
330
9 Ves.
Id.
Dallas, (Pa.) 307

KimpWalker, 9 Vermont, 191. This
Wynick,
ton
May,
Brown, 15
v.
v.
question has practically some importance, as, if the covenant is to be
deemed an express one, the lessee is

bound to his lessor for the rent,
still
notwithstanding an assignment of the

term, and acceptance of the rent by
the lessee from the assignee Mills v.
;
Auriol, supra ; Ghegan

11 Harris, (23 Penn.
18
while
if
opposition to such a
authorities
the later authorities
v.
covenant thus created is not express,

but implied Webb v. Russel, 3 Term,
402
v.
Lev-
Harper
406-431
Id.
Swetnam,
v.
v.
Young,
State
the covenant
is
R.)
merely
implied, the liability for rent is but

co-extensive with the occupation, and
the lessee is not liable for the rent
Firiley v. Simpson, 2 Zabris(N. J.) 331, and a recent statute

;
in Pennsylvania has
" in all cases
provided that
now pending
or here-
after to be brought in any court of

record in this Commonwealth to en-
the
force
payment of ground-rent
due and owing upon lands or tenements held by virtue of any lease
for life, or a term of years, or in fee,
the lessor, his heirs and assigns, shall
have a full and complete remedy
therefor by
action
of
covenant
against the lessee or lessees, his, her
or their
heirs,
executors, adminiswhether the said
trators or assigns,
premises out of which the rent issues

be held by deed poll or otherwise."
Act of 25th April, 1850, 8.
1
Merrill
Baber
v.
v.
Frame, 4 Taunton, 329
Harris, 9 Adolph.
&
Ellis,
accruing after his assignment to another, and the acceptance of the
532
Williams v. Burrell, 1 Com.
Frost v. Raymond, 2
Bench, 402
Caines, (N. Y.) 194 Grannis v. Clark,
rent by his lessor from the latter
8
;
Walker v. Physick, 6 Barr, (Pa.) 202.

The remarks of Mr. Baron Platt,
work on Covenants,
in his
10-18,
in opposition to the generally received
p.
Cowen, (N. Y.) 36 Barney v. Keith,

;
502; Tone v.
Brace, 11 Paige, (N. Y.) 569 Sumner v. Williams, 8 Mass. 201 Dex4 Wendell, (N. Y.)
ter
v.
Manly, 4 Gushing, (Mass.) 14
opinion that covenant will lie against

a grantee by deed poll, by reason of
Knapp
his
acceptance of the estate, have

been acted upon in Pennsylvania,
26
where
cently denied in New Hampshire,

that any such effect can be implied
from the words " let and lease,"
it
has been held that covenant
will not lie against
poll
329
a grantee by deed
Maule v. Weaver,
Barr, (Pa.)
Irish
Jones, (11
v.
Johnston,
282
Marlboro, 3 Williams, (Vt.)

Maeder v. City of Carondelet,
y.
Missouri, 115.
It
has been re-
Levering v. Levering, 13 N. llamp.

517; and the decision is sought to
478
thus implied
naiit
also that the lessor
HOW COVENANTS
not merely for quiet enjoyment, but

1
the power to demise.
is
had
be based upon the absence of these

words in the older authorities. The
only difference would seem to be that
was not liable

that these words created no covenant in an assignment.
they use the Latin word demist, of

which " lease " seems certainly a fair
(Part 2, c. 1, art. 4,
140), declared that " no covenant shall be
and, apart from this, the

cases use the expressions " grant, de"
mise, etc." or
grant, demise, and the
implied in any conveyance of real

estate, whether such conveyance con-
translation
like" which would
seem
to infer that
The New York Revised
Statutes
tain special covenants or not," which

in Kinney v. Watts, 14 Wend. 39,
they meant a covenant to be implied

In
from any words of leasing.
Black v. Gilmore, 9 Leigh, (Va.) 448,
the Court took it for granted that in
"
a lease the words " rent and lease
"
for a
would imply a covenant
was held by the Supreme Court to

extend to leases, but in Tone v.
Brace, when before the Vice-Chan-
looked upon in the

conveyance of an es-
ing "conveyances of real estate,"

within the meaning of the statute,
tate than as a contract for the possession."
and this, on appeal, was affirmed by

11 Id.
the Chancellor, 8 Paige, 597
569. In the recent case, however,
lease for years

law less as a
The words
is
"
"
grant and demise

do not, however, it would seem, create a covenant in the assignment of a
Landydale v. Cheyney, Cro.

"
Although the word
or
demise," it was said in the
grant
lease
Eliz.
157.
recent case of Blair v. Rankin, 11

" create an
Missouri, 442,
implied
covenant against the lessor, yet it is
nowhere said that the same words

will, in an assignment, create an implied covenant against the assignor.
The object and intent of the parties
in
making an assignment is
to put the
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

self
bound him-
by express covenants."
So, in
Waldo
v. Hall, 14 Mass. 486, one

"
a
granted, bargained and sold
lease, and the assignee was evicted
"
by a
paramount to that of his

assignor, and it was held that the latter
title
cellor (1 Clark's Ch.
Rep. 509), this

was denied, and the statute was held
not to extend to leases, they not be-
Supreme Court, of Baxter v.

Ryerss, 13 Barbour's S. C. R. 284,
Johnson, J., said in the course of the
" Since the Revised Statopinion,
in the
no covenant can be implied in

any conveyance of real estate (1 R.
This has been held
S. 738,
140).
utes,
to apply to leases for years ; Kinney

v. Watts, 14 Wendell, 38.
Chancel-
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
lor
did not apply to leases for years,

which were mere chattel interests.
But
am
of opinion that the Su-
preme Court were clearly
right,
and
of this description are

within
the letter and spirit
directly
of section 140.
By 1 R. S. 7 <;_>,
that
leases
term real estaU- is dorian-.

embrace all chattels real except
leases for a term not exceeding
36> the
to
4<79
In the absence, however, of such words, as for instance
where the
parol, although it is well settled that

2
will imply a covenant for quiet enjoyment, yet it
the law
lease is
seems to be
by
whether a contract, amounting
at least doubtful
to a covenant that the lessor has the
created or implied from the
mere
power
to
demise,
is
of landlord and
relation
tenant.
three years, and by 2 R. S. 186, 6, no
estate or interest in lands other than
leases for
one year, can be created,
act or operation by law, or

deed, or conveyance in writing^
unless
by
by
subscribed by the party creating the

same. The conveyance in this sec-
mentioned need not be under
tion
seal.
It is sufficient that it is in writ-
ing and subscribed by

The
ating the estate.
the party crestatute there-
fore applies to all leases in writing
a term exceeding three years,

whether under seal or not." But in
for
the subsequent case of the
Mayor of
New York
v. Mabie, 3 Kernan, 160,

the Court of Appeals, after citing Tone
" satisfied that the conv. Brace, was
by the Chancellor
is the true one, and that there is
nothing in the provision of the Revisi-d
Statutes under examination
struction adopted
which prohibits us from finding in

the grant in question an implied covenant against the acts of the grantor
and others claiming by lawful title.

The result would be the same if the
question had arisen upon a lease for
years of land," and in the recent case
of
Yernam
this decision
y.
Smith,
Smith, 333,
was approved.
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. StevenBurnett v.
son, 5 Bing. N. C. 183
i
Lynch, 5 Barn.
&
Cress. 609, per
J.
Littledalc,
Grannis
v.
Clark,
Cowen, (N. Y.) 36; Crouche v.

Fowle, 9 N. Hamp. 219. The words
of leasing, however, cannot, it would
seem, be made to imply a covenant 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 privilege as the defendant then enjoyed
of supplying ale," &c., to certain pubhouses then the defendant's prop-
lic
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
his ale
to another,
On
elsewhere.
who bought
special demurrer, the
Court held that the declaration should

have shown what the privilege of the
defendant was, and it was doubted if
the word demise had ever been held
to
amount
to
a covenant except
connected with land.
same
effect are
Howard
And
v.
when
to the
Doolittle,
Duer, (N. Y.) 474; Banks v.

CarWhite, 1 Snecd, (Tenn.) G14
son v. Godley, 2 Casey, (26 Penn.
3
State R.)
2
1 1 7.
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 v. Mauley, 4 Gushing, (Mass.)

14 and see the other cases hereafter
;
cited in this connection.
480
HOW COVENANTS
1
a case in the Exchequer, where, in assumpsit,

the declaration stated that before and at the time of making
in
Thus,
agreement thereinafter mentioned, the defendant held

certain premises for the residue of a term of years, and
the
who then agreed to

and
in
consideration of the
take them
rent,
premises the defendant promised the plaintiff that he should
and enjoy during the said term, nevertheless he
quietly hold
agreed to
let
the
same
to the plaintiff
at a certain
by the party entitled to the reversion, it was

on
demurrer, that the declaration was bad, as, said
held,
Lord Abinger, " If the plaintiff originally became tenant to
the defendant without any agreement as to the eviction, the
was
evicted
law would not afterwards impose such a

2
No
liability
on the
arose from
liability
3
landlord
of
and
relation
and
that we
the simple
tenant,
think, is the relation on which the plaintiff has declared.
defendant as
is
here stated.
such
more largely than the law will imply

4
from such a relation."
So, in a more recent case in the
The promise
Granger
v.-
is
laid
Collins,
Mees.
&
AVelsby, 460.
2
That
is
to say, there
must be an
mon
Pleas, Messent v. Reynolds, 3

Com. Bench, 194, there was a writ-
ten agreement
let, followed
by
under it, and the
tenant having been evicted by the
reversioner, sued in assumpsit on a
to
executory consideration to sustain

such a promise, as a warranty of a
chattel made after its sale cannot be
possession taken
enforced, unless some new consideration arise at the time of giving the
promise that in consideration of the

agreement and its performance by the
Roscorla v. Thomas, 3
warranty
Queen's Bench, 234
Ilogins v.
;
Plympton, 11 Pickering, (Mass.) 97

Williams v. Hathaway, 19 Id. 387;
Bloss v. Kittridge, 5 Vermont, 28.
3 This was cited and
approved in
Maeder v. City of
but
Carondelet, 26 Missouri, 115
there was there an express stipulathe late case of
tion in the lease that nothing therein

contained should be construed to im-
ply a covenant for quiet enjoyment.

4 In a
subsequent case in the Com-
plaintiff,
the latter might quietly use,
occupy, possess and enjoy the premises for the term.

On a case stated,
judgment was entered for the defendant, principally, it would seem, on

the ground that the agreement was
not an absolute one, as
a reference to certain
it
*
contained
conditions
mentioned in a memorandum," and

which were not set forth in the declaration, though it was thought to be
at least doubtful whether, apart from
this,
a contract for quiet enjoyment

1
same
court,
the
demise alleged
to
plaintiff
declared in
481
assumpsit, upon a
have been made on the terms that the
defendants had good title to the premises, and that the

should quietly enjoy them during the term, and
plaintiff
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
that the demise
the
On
at the time of the demise.
title
plaintiff,
was by
parol,
with leave to set
the
trial, it
appeared
and a verdict was entered for

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 bane
of opinion that there was not a covenant for good
but
title,
only for quiet enjoyment during the term ; the
covenant arising
plaintiff had, therefore, misdescribed the
were
all
would be implied from a mere agree" We are asked to imto let.
conditions to which reference
is
thus
and,
ment
made do not apply
" from the

ply," said Tindal, Ch. J.,
set
out
in
the
case, a covagreement
that it might not be legally determined, or that it was not avoided by

some breach of the conditions ? The
enant on the part of the defendant

that the plaintiff should and might
quietly use, occupy, possess and enjoy the premises for the term for
which the defendant had agreed to

let them. It may be that a covenant
enjoyment may be implied
from a mutual agreement to let and
for quiet
take.
at
all
But passing that by, it ought

events to appear that there is
to the
term
inference, therefore, which the plaintiff 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

but it is said
for quiet enjoyment
that the law will imply it from the
Even assumagreement set out.
ing that the word let' in an agree;
'
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
pared to admit), that would only raise

an implied covenant co-extensive, ac-
to the plaintiff absolutely for eight
cording to
years and a quarter, but subject to

the same conditions as are mentioned
p. 484,)
ment
lease
is
'
memorandum to him from Mr.

How are we to say that the
Flight.'
in the
41
equivalent to 'demise' in a
seal (which I am not pre-
under
Adams v. Gibney, (infra,

only with the estate out of
which the lease

1
Bandy
913.
v.
is
granted."
Cartwright, 8 Excheq.
HOW COVENANTS
Leave was however

out of the relation of the parties.
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 implied by law from a parol demise, the Court discharged the
rule for a new trial and entered judgment upon the verdict.
New York, it was held that where

were
under
an agreement to let, not unoccupied
premises
der seal, without any express covenant, or the words grant
So, in a recent case in
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
in
the
grantor or lessor of real
1
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
demise.
premises
implied in the fact of a
is
In a recent case in Pennsylvania, the widow of an intestate made a parol lease for five years, and afterwards, as
administratrix, presented a petition to the proper court for
the sale of the premises for the payment of the debts of the
under which proceeding the tenant was evicted by

the purchaser, and brought assumpsit against the adminis-
estate,
tratrix for
sion.
not having permitted him to enjoy the possesthe plaintiff, but this was
The Court below nonsuited
reversed on error, after the case had been twice argued, and
8
plaintiff was entitled to recover.
1
Baxter
v.
Ryerss, 13 JBarbour's
S. C. 284, supra, p. 478.

2 Vernam v.
1
Smith,
Smith, (N.
and see Mayor of New

York v. Mabie, 3 Kernan, (N. Y.)
160, where, however, there were
words of leasing used.
3 Maule v.
Ashmead, 8 Harris, (20
Penn. State R.) 482. The following
was the opinion delivered by Black,
Y.) 332
Ch. J.
years.
sion,
"A
farm was leased for
five
The tenant went
and improved
great expense of
into possesthe property at a
money and
labor,
produce, for the last two

years, would have been worth much
more than it was at any time preso that
vious.
its
But
at the
end of tlmv years
he was turned out, and he brings this

action to recover compensation for
4<83
Some expressions in recent cases, however, seem to favor

the conclusion that the relation of landlord and tenant implies
1
also a covenant that the former has the power to demise.
The covenant
implied from the words of leasing", differed
from that implied from dedi^ both as to source and effect.

the latter from tenure.
The former arose from contract
The warranty was a
real
covenant in
its strict
sense, while
on the former the tenant recovered damages as a recompense for the term lost, and not another term in its place.
The warranty implied from dedi was, moreover, unrestrained

2
contain,
hy any express warranty which the deed might

while the covenants implied from the words demise
and grant, fell within the maxim expresswn facit cessari

taciturn, and were modified or restrained by express cove3
Thus, in Nokes's case, the lessor, after employing

the words demise and grant, added a covenant for quiet
nants.
" without eviction

by the lessor, or any claiming
enjoyment,
This
his loss.
one of those hard
is
cases, which, sometimes, are said to
make bad precedents.

member of the Court
But every
clearly of
opinion that the law of the case, as
well as its merits, is with the plaintiff,
and that
is
not
his
his technical right to
less plain
demand.
the word
is
It
recover
than the justice of

is not denied that
(Jemixi, in
a lease, implies a
covenant for quiet enjoyment during

the term.
That word was not used
here, for the lease was
and the
made by
parol,
parties did not understand
But the word lease is a fair

translation of tfemisi, and ought to be
and is interpreted in the same way
by the Courts Rawle on Covenants
Latin.
for Title, 362; 5 Bacon's
Cro. Eliz.
3V
this case, the
y.
In the argument of
English cases cited xu-
pra, of Granger
sent
Abr 601;
v.
Collins,
and Mes-
Reynolds, were relied on by the
defendant, and
that the
it is somewhat curious
Supreme Court had, at one
time, determined to affirm the judgment, and an opinion to that effect
was actually written, and is now beme.

* Thus in Banks v.
White, 1 Sneed,
(Tenn.) 614, it was said: "The law
fore
does not imply any warranty as to

the continuing condition of the property demised. The only implied warranty is as to the title, and any acts
by or under the defendant whL'h
would
So in
affect the use of the property."
Wade
Ilalligan, 16 Illinois,
r.
" There were no exin the lease for

covenants
press
quiet
511,
it
was said
possession or enjoyment.
Still
the
imply covenants against paramount title, and against such acts of
law
will
the landlord as destroy the beneficial
enjoyment of the
2
Supra,
lease."
p. 468.
4 Coke, 81.
HOW COVENANTS
484-
under him" and
that " the said express covegenerality of the covenant in law, and
was held
it
nant qualified the

restrained
by the mutual consent of both
it
parties, that
it
should not extend further than the express covenant," and

1
this has been
recognized as settled law at the present day.
would seem, can the implied covenant in the creaof a leasehold endure longer than during the continu-
Nor,
tion
it
was granted. Thus in an

having made a lease by the word
ance of the estate out of which

old case,
a tenant for
demisi, the lessee
life
was
it
evicted by the remainder-man after

life and before the effluxion of
the death of the tenant for
the term, and brought covenant against the executors of the

" the covenant in law
ends and
latter, but it was held that
determines with the estate and interest of the lessor

a somewhat recent case in the
in
was made
Frontin
to the
329
Schlencker
Merrill
789
y.
v.
Moxsy,
Barn.
&
Stephenson, 5
In other words,
v.
Bing. N. C. 183.
when
Raym.
Frame, 4 Taunton,
Line
effect,
Small, 2 Lord
v.
1419
Cress.
same
means to limit his liaby binding himself to protect
a lessor
bility
the tenant only against disturbances

or defects of title arising from the
lessor's
who
own
and ihe
acts
acts of those
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
with the more enlarged

general covenant, which the law otherwise implies from the very words
overriding
it
of It-using; Deering v. Farrington, 1

Modern, 113 S. C. 1 Freeman, 868
;
3 Keble, 304.
a Swan v.
8. C.
also
Searles, Dyer,
Benloe
Cheiny
v.
&
257 a;
Adams
v.
which was
cited
"That
656.
and
Pleas, a decision
and approved
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
ities,
and
ant
but
of
out
estate
granted,
which
clear from
is
is
the
all
lease
is
the author-
admitted by the defendcontended on his part,
it is
such implied covenant ceases

with his estate, as well upon the
ground that it is rather in the nature
that
of an implied warranty than of an

implied covenant, as upon the direct
If it had
authority of decided cases.
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-
Leonard,
thority of Co. Litt. 389 a, where it is

laid down
that a warranty cannot
Gibney, 6 Bingham,
be annexed to chattels real or personal

but if a man warrant them,
Dalison, 150
Lurigley,
see
179.
3
Common
"
;
'

1
in a late case in
The implied covenant
Pennsylvania.
more
therefore obviously
We
the party shall have covenant.'

it is
is
an
restricted in this respect than
express covenant for quiet enjoyment.
think, however,
485
sufficient to say
by husband and
down
wife,
and
it
is
laid
that a covenant in law shall
that the cases which have been de-
not be extended to
cided on the precise point now raised,

are too strong to get over.
Such is
make one do
the
more than he can, which was to

warrant it as long as he lived, and
no longer.' Unless, therefore, some
very strong and insuperable objection had been raised to the princi-
present, was by indenture made by

tenant for life, by the word demise.
ple of those decisions, which has not

been done in the present case, we
The
think
the case in Dyer, 257

in
determined
a,
&
Michaelmas Term, 8
The
lease
Eliz.
that case, as in
in
ouster in that case, as in
was by the remainder-man

death of the tenant for
this,
after the
and be-
life,
The
fore the effluxion of the term.
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
That the executors should
Justices
it
safer to adhere to them, the
doctrine of which has been adopted

in books of high authority
amongst
;
others, see
160,
Sheppard's Touchstone,
and Com. Dig. Covenant, C.
And no
injustice
can be occasioned
the lessee by this decision, who

must have known, from the form of
to
the reservation in the lease, that his

lessor
was no more than a tenant
not be charged by this covenant in

law because the covenant in law
for quiet enjoyment."
ends and determines with the estate
Cases, (Pa.) 311.

2 The distinction
'
and interest of the lessor also that

no cause of action is given against
'
the testator in his lifetime.'
And,
McClowry
clearness in
from the
v.
he admitted, if
the lease had been by deed poll, instead of
yet
by indenture, he should have
a disagreed with his companions

tinction which is not assented to
;
The same
by the learned reporter.

principle
laid
is
down
in
Hyde
v.
The Canons
553, and
Wiseman,
of Windsor, Cro. Eliz.

in the case of
Bragg v.
1
Brownlow,
23,
covenant
where
is
brought against the executor of the husband upon a lease
41*
v.
Croghan,
Grant's
between an ex-
press and an implied covenant was

very recently laid down w>th great
although one of the Justices differed

rest,
for
but was contented to accept a

lease without an express covenant
life,
lease
the case
of Williams
Com. Bench, 402. A

which was invalid by reason of
Burrell.
an excessive execution of a power,

contained a clause that the said
sor " for himself, his heirs,
and
les-
as-
demised premises, etc.,

against himself and all other persons,
etc., shall and will during the said
signs, the said
term warrant and defend."

death of the
lessor,
On
who was but
the
ten-
life, the lessees were evicted

by the remainder-man, and brought
ant for
486
HOW COVENANTS
however, in another respect a greater scope, since

be remembered that an eviction is not necessary to
It has,
it
will
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 implied
covenants
broken
after
the
and
for quiet enjoyment,
that,
being
an express covenant, it extended to

protect the whole term which was
to be granted by the
And, after hearing the argument, we are of opinion that the
purported
lease.
contended for on the
covenantor's death, his executor is

not liable, and Tindal, Ch. J., held
part of the plaintiff,
the following language "It was admitted, on the argument before us,
proper construction, and that the

clause now under consideration op-
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
and properly a warranty.
strictly
Indeed,
the authorities agree upon the

point, that the warrantee in such case
all
can neither vouch nor bring warrantia chartce, nor use it by way of rebutter, the ordinary
a warranty
annexed
is
made
modes by which
available
when
an estate of freehold of
inheritance, Co. Litt. 389 a; Hob. 3.
It was also admitted on the
part of
to
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 itwas at the same time contended by
them
amounted to a covenant
in law only and that, being a covenant in law, it would extend no furthat
it
ther than to protect the estate which

the lessor could lawfully grant; that
is,
in this case, a
minable with
his
term of years deter-
own
on the part of the

insisted
life
to
is
the just
and
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
meaning, import an agree-
literal
ment on the part of the
lessor that
the lessee shall enjoy the land demised 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
Comyn,
down by Chief Baron
in his Digest,
tit.
Covenant
(A. 2), that 'any words in a deed

which show an agreement to do a
make a covenant.'
The distinction between
thing,
"
nants,
and the only
cove-
distinction (so
far as relates to the present

inquiry),
we take to be this, they are either
covenants by express words, or coveThere are two kinds

nants in law.
'
of covenants,' says
Litt.
139
'
b,
Lord Coke, Co.

in deed and
a covenant
a covenant in law;' or as
it is
put
in
Vaughan's Reports, page 118, 'All

covenants between a lessor and his
whereas,
lessee are either covenants in law, or
was
And that the

express covenants.'
covenant now before us does not fall
plaintiff,
it
that the clause in question
amounted
construction
an express covenant
within the class of covenants in law.
FOR TITLE MAY BE LIMITED OR QUALIFIED,

the breach of an implied
487
covenant in a lease, the words

we have seen, not only a
demise, or grant, implying, as

clear from considering the nature
of such covenants.
covenant in
is
law, properly speaking, is an agreethe law infers or implies

from the use of certain words having
ment which
a known legal operation in the creaan estate so that, after they

have had their primary operation
tion of
in creating the estate, the law gives
them a secondary force, by implying an agreement on the part of the

grantor to protect and preserve the
so
estate,
created
by those words already

a man by deed de-
as, if
mise land for years, covenant
lies
were some rule or principle that all

implied covenants were covenants in
law.
But we think there is fallacy
in this
term
argument, from the use of the

'
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 employed by the parties in the deed.
is more
and therefore more
In some cases, that meaning

clearly expressed,
easily discovered
in others,
it is
ex-
pressed with more obscurity, and discovered with a greater difficulty. In
upon the word demise,' which imports or makes a covenant in law
some
enjoyment or, if he grant

land by feoffment, covenant will lie
upon the word dedi.' But the argu-
be made out by the comparison of

different and perhaps distant parts
ment
the
for quiet
'
in
the
present case is not

founded upon the legal effect or
consequence of any words of demise, 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, throughout, 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
;
cases,
it is
single clause
discovered from one
in others
is
it
of the same instrument.

intention
parties
is
only to
But, after
and meaning of the
once ascertained, after the
agreement is once inferred from the

words employed in the instrument,
all difficulty which has been encountered in arriving at such
meaning
is
be entirely disregarded the legal

effect and operation of the covenant,
whether framed in express terms,
that is, whether it be an express
to
covenant, or whether the covenant

be matter of inference and argument,
precisely the same and an implied
covenant, in this sense of the term,
differs nothing in its operation or
is
legal consequences
covenant.
Now
it
from an express
is
in
this
sense
on the part of the

defendants appear to have used the
term implied covenants.' The covenant for quiet enjoyment, they contend, is an implied covenant, because
that the counsel
'
4*88
HOW COVENANTS
covenant for quiet enjoyment, but also a poiver 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,
would seem,
it
at his
option, sue at
soon as made.
any time, the covenant being broken as

It might be doubtful whether the American
Courts would, on
this
ground, deny to an assignee of the
1
land, the right to take advantage of the implied covenant.
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
Owing
to a
the early case of Severn v. Clerk, 2 in an action of debt on

a bond conditioned to perform certain articles contained in
a deed, whereby the obligor had assigned a term of years,

reciting that he was possessed of them, it was held, that if
the party had not that interest by a good and lawful
conveyIt was said that the
ance, his obligation was forfeited.
recital of itself was
but
nothing,
being joined and considered with the rest of the deed, it was material.
It has,
3
however, been chiefly owing to the misapprehension of the
case of Johnson v. Procter, 4 that such an
opinion has been
it is
found in the deed
in the
form of
and description which, as we have

already seen, does not belong to the
ter
a warranty, and not in that of an express covenant for quiet enjoyment
covenant now under discussion.
and they then further contend,
upon considering the several author-
that,
being an implied covenant, it must

of necessity be a covenant in law to
ities
which
case."
it
appears to us to be a
suffi-
tents
Supra, p. 337 et seq.

1 Leonard, 122.
3 In
used
in the argument, is to all inand purposes the same as an

express covenant; and that it is only
those covenants which the law itself
implies, that can be properly consida characered as covenants in law
is
referred to, they will be found

accordance with this view of the
in
cient answer that an implied covenan t, in the sense in which the phrase
And
Browning
r.
Wright, 2 Bos.
&
Pull. 13, per Lord Eldon, then Chief

Justice of the Common Picas.
4
in
'Yelverton, 175;
which the report
is
Hulstmde,
more
full,
3,
In that case,
entertained as to the effect of a recital.
for years of a mill,

assigned
being- joint tenants
his interest to C, without the assent of B, and died.
and
all
489
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
agreements in
been evicted by
He
gave the purchaser a bond

perform the covenants, grants, articles, and
and the purchaser, having
the assignment
any act done by him.

conditioned to
for quiet enjoyment, notwithstanding
also
of the moiety assigned to him, brought
an action on the bond, and judgment was given
Lord Eldon seemed

turned on the
recital,
to
consider the
and that the
in his favor.
judgment as having
amounted to
recital itself
But the decision seems to have turned upon

a warranty.
the word (/rant, and not at all upon the recital, and Lord
1
" It seems mateSt. Leonards, in noticing this case, says
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
a conveyance of the inheritance of an estate, that
the vendor is seized in fee, would amount to a general warranty, and would not be controlled by limited covenants for
recital in
the
title
ported."
Christine
a proposition which certainly cannot be supHuston, J., took up the same misapprehension in
2
"
Gotwalt, where he held that a recital,
being
part of fifty-eight acres which A. B. granted," amounted to
a covenant for seizin, a decision from which Gibson, C. J.,
v.
strongly dissented at the time, and which, when the same

case came up again, some years after, was overruled in a
3
In a late case, 4 it was
very accurate and lucid opinion.
"a
grantor, and in some instances, even
correctly said that
Sudden on Vendors, 524.
16 Ser<r.
&
Rawle, (Tenn.) 112.

Wbitehill v. Gotwalt, 3 Penn.
Rep. 327, per Kennedy,
J.
673.
Ferguson
v.
Dent, 8 Missouri,
490
2
estopped by mere recitals in a deed, and
does not follow that such recitals are covenants, either
strangers,
yet
HOW COVENANTS
it
may be
express or implied."
So,
it
made a
has often been
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 convenience, this subject will be considered in a subsequent part
of this chapter.
In this connection
important, and
at
may
be considered one of the most
same time,
the
nected with the law of covenants for
difficult
title,
questions con-
which
is,
how
far
these covenants (whether express or implied) may be limited

or enlarged by the operation of other covenants contained
in the
The subject is here introduced

States such questions have arisen between
same conveyance.
because in
many
between
the different covenants implied by local statutes
and sometimes between express and
express covenants
implied covenants.
Before referring, then, to these local
has been thought better to advert to the decisions

which have arisen as to express covenants, and then apply
statutes,
them
ment
It
either
it
those arising by implication.

will, it is hoped, avoid repetition.
to
Such an arrange-
has been already shown, that covenants for title are

that is, covenants against
general and absolute,
persons whomsoever claiming by title, or

that is, covenants extending only and
special
restrained to the acts of the covenantor, or some other par-
the acts of
all
and limited
ticularly
1
named person
3
;
and
Carver v. Jackson, 4 Peters, 1.

See supra, p. 407.
The form by which the cove-
nants are thus restricted
is
given su-
that,
where the
latter cove-
pra, in the chapters treating of the respcctivo covenants but, as Lord St.
;
Leonards observes, " although

the usual and technical
this is
manner of

nants are those employed, they are not broken by a defect
1
of title caused by any other persons than those thus named.
And when
or
all
all the covenants in the deed are either general,

are thus limited, the liabilities and rights of the re-
of comparatively easy interpretation.

spective parties admit
But it sometimes happens that, through accident, inattention or carelessness,
one or more limited covenants are to
be found with one or more general covenants in the same

contradiction of
conveyance, hence presenting the apparent
a vendor being only willing to covenant against his own
acts, while at the same time he covenants against those of
all other
Whether, under such circumstances, the
persons.
or
general covenants are to enlarge those which are limited,
whether they are to be restrained by them, is, then, when
a
they are incapable of being reconciled with each other,
2
and
of
considerable
for,
importance,
question
perplexity
on the one hand, as has been said, 3 " however general the
words of a covenant may be, if standing alone, yet, if from
other covenants in the same deed,
it
is
plainly
and
irresisti-
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 cartarum
for tins accipiuntur contra proferentem

limitation
of absolute covenants,
unless
would forbid the

the
intention,
of
which these covenants are no more than the expression,

clearly appears on the face of the instrument.
restraining covenants, yet an agreement in any part of a deed, that the
covenants
shall
be restrained to the
acts of particular persons, will be

good, notwithstanding that the covenants themselves are general and
Supra, pp. 19, 111, 171.
2 "
Every case must depend upon
the particular words used in the instrument before the Court, and the
distinctions will
nice
and
be found to be very
difficult;" note to Gains-
unlimited;" 2 Sugden on Vendors,

524; Brown y. Brown, 1 Levinz, 57
ford
see infra.
Stevenson, 3 Bos.
v. Griffith, 1
Saunders, 59.
in Hesse
Per Lord Alvanley
&
Pull. 575.
v.
HOW COVENANTS
4*92
Lord
St.
Leonards has considered that four propositions
can be deduced from the authorities,
Where
viz.
words are inserted in the first of

several covenants having the same object,
they will be conFirst.
restrictive
strued as extending to
all
the covenants, although
they are
distinct.
Where
Second.
the first covenant is general, a subselimited

covenant
will not restrain the
quent
generality of the
covenant
unless
an
;
preceding
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.
Where
Fourth.
the covenants are of divers natures, and
concern different things, restrictive words added to one shall

not control the generality of the others. 1
1
Mr.
Platt has arranged the cases under
two heads
1.
Cases in which words
of qualification in the
first
part of a
apply to and limit covenants

in general terms, in a subsequent
deed
will
part of the deed; and 2. Cases in

which a qualification in the latter
part of the instrument will narrow a
preceding
covenant
general language
nants, 358.
expressed in
on Cove-
Platt
Many of
the cases, how-
the second proposition

(which together, or rather as connected with the first, is disputed by
the learned editor, Mr. Sweet, of
authorities;
Mr. Jarman's work on Conveyancing), is perhaps, hardly accurate ;

for although a prior general covenant
will not,
first;
Leonards under the
Mr. Dart,
Vendors and
first.
by
seems, control the generality of the

the third and fourth propositions seem to be unimpeachable." It
it
second head, are placed by Lord

in his late treatise on
appears, be restrained
covenants relate to the same object,

restrictive words in the second may,
ever, cited by Mr. Platt under the

St.
it
a subsequent limited covenant having a diil'erent object, yet where two
may
be proper here
to notice
that
authorities do not
Purchasers, 372, in quoting the above

classification of Lord St. Leonards,
" Of the above
observes
some of the
tions, the first, if
nant precedes a special or limited

in other
om>, and where \tfolltnat it
proposi-
read in connection
with the above classification of the
covenants, and of their separate objects,
seems
to
be warranted by the
appear
to take any distinction between cases
where a general or unlimited cove-
words, the mere priority of position

in the conveyance, of one over the
The
493
case of
is
constantly
the
subject of one covequoted as a leading authority upon
nant being restrained by another, and has been generally
First.
v.
Browning
Wright
In that case,
of these heads.
classed under the
first
deed purporting
first, a warranty
convey an estate of fee simple, there was,

by the covenantor against himself and his
in
to
2
by a covenant that notwithstanding any act

done by him, he was seized, &c., without any manner of
heirs, followed
defeat the estate granted,
condition or restraint to alter or
"and
the
that he had
same
good right and full power to convey

Then followed limited
manner aforesaid."
in
covenants for quiet enjoyment and for further assurance.

The covenantee was evicted 3 by a title not within the Kmbe thought
no moment
other, seems very often to
a matter of
Thus, in Iggulden
325,
it
or
little
v.
be both ex antecedentibus
and
sequentibus,
ford v. Griffith,
some
May,
Vesey,
was said the exposition must

in
ex con-
et
a note
Gains-
to
Saund. 60
a,
where
distinctions are noticed with re-
and that however transposed this

might be in a deed, their precedency
must depend on the order of time in
which the intent of the transaction
"
requires their performance.'

Kingston v. Preston, cited in Jones v.
So it was
Barkley, Douglas, 684.
said by Dallas, Ch. J., in Foord v.
spect to this matter of priority, Ser"

jeant Williams observes, It is ques-
p. 498,
much regard would

now be paid to this mode of construcThe chief object of courts of
tion.
comparatively unimportant."
I had attempted a different
law at present
fication of the cases
tionable whether
is
meaning of the
to discover the true
parties,
and
to
con-
strue the covenants accordingly.

As
far as the difference above laid down
would tend
to find out the
of the parties, so far would
intention
now be
it
adopted, and no further. The proper 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
'
Wilson, 8 Taunton, 543, cited infra,

" The order in which the covenants stand, however transposed,
Leonards.
&
2 Bos.
Expressed as
Pull. 13.
Williams
v.
Bur-
The covenantee became a tenant untitle.

The reporters
nants was to be collected from the
this
sense and meaning
supra, p. 269
parties,
in
supra, p. 485, note.

3 It was a constructive eviction.
rell,
der the superior
42
to,
also
prove unsatisfactory, have, for the most part, adhered

to the arrangement of Lord
St.
it
condition precedent or not, that the

dependence or independence of coveof the
classi-
from that adopted
by the learned authors referred

but finding
is
doubt, in a note to the case, whether

would be an eviction, but see
et seq.
494
ited covenants,
argued on his
the defendant
HOW COVENANTS
and on a demurrer to his declaration
it
was
belialf, that to adopt the rule contended for hy

that the restriction of the
prior special cove-
nants must be engrafted on the subsequent general one

would be to establish the doctrine that whenever a special
covenant was inserted,
general covenants must be re-
all
It was, however, said

strained thereby.
by the Court, that
the doctrine did indeed necessarily follow, the demurrer
could not be sustained, but the question was not whether a
if
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 a
(after premising
that in conveyances of a fee-simple estate, the purchaser
was, according to the general practice, entitled to limited

2
"
covenants only), said,
opinion upon considering the
whole deed is that it is a special one.
What would be the
My
use of the other covenants,
be of
little
if this
were general
It
would
service to the grantor to insist that the warranty,

for quiet enjoyment and further assur-
and the covenants
ance were specially confined to himself and his heirs, if the

'
I cannot sue
you on these
grantee were at liberty to say,
v
covenants, but I have a cause of action arising upon
It
appears to
general covenant which supersedes them all.'
in such
words
and
of
the
the
context
that
from
deed,
me,
case
we should be
at the
same time
driven to say, that the grantor intended

and an unlimited warran-
to give a limited
The
true meaning, therefore, of the covenant is, that

the grantor has power to convey and assure according to the
ty.
'
terms used, to which terms he refers by the words, in man'
for and notwithstanding anything
ner aforesaid,' namely,
to the
done
him
contrary.'
by
'
Then Chief
mon
2
3
Justice of the
Com-
Pleas.
As to this, see t'n/ra, Chapter

Lord Eldon added, " With
spect to the cases which have been

it is to be observed that when
cited,
XL
re-
a general principle for the construction of an instrument is once laid
An
New York
early case in
down, the Court will not be restrained from making their own application
of that principle, because there are
cases in which
may have been
it
ap-
The
plied in a different manner.
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
was somewhat
Wright, and was decided upon
v.
Browning
that he had
in fee
lands
the
that
to
good
its
495
similar to
authority.
such third part, and a general covenant for further assurance, it was held
that the latter was " restrained to
the limits of the bargain, being joined
to the former covenant of enjoyment,
under the same
line
depending upon
and covenant, as
which was ex-
it;
So,
pressly only of the third part."
in a recent case in the Irish Chancery,
v.
Martyn
M'Namara, 4 Drury
& Warren,
estates
424, certain fee-simple

and also lands held under
leases for life
renewable forever, were

under a mar-
to trustees
convey
right
were clear of all incumbrances made
by him, his father or grandfather, and
conveyed
that the vendee should quietly enjoy

the estate against all persons claimhis father or
ing under the vendor,
held that the
grandfather and it was
second covenant, though general, was
restrained by the first, to acts done
the property was of a given value, followed by a general covenant for good
by
So
vendor.
the
Gervis
in
v.
Peade, Cro. Eliz. 615, tenant pur

autre vie made a lease for twenty-one
that he had
years, and covenanted
not done any act to prejudice the
said lease, but that the lessee should
enjoy
it
ce.s/ui
que
against
vie
died,
evicted,
being
all
judged
words
lessee,
covenant
"and
it
was ad-
lay not, for the last

but that he shall enjoy it
that
'
persons.
and the
brought
against his executor,
The
it
persons,' refer to the first

words, viz., 'for any act done by
against
him,'
all
and
So
so the
covenant
is
not brok-
ringe settlement, with a covenant by

the settlor with the lady's father, that
and then a particular covenant

by the settlor during his life to renew
title,
these leases; then succeeded limited

for
further assurance.
and
third of these
Sir
E.
Sugden,
"The
first
covenants," said
" are
Chancellor,
limited, the first relating to value, and

the third to acts to be done by the
covenantor during his own life

the second covenant for good
but
title,
itself, would appear to

be general, and the question would
be whether, looking at the rest of the
deed, at the subsequent covenants for
considered by
title
by the
settlor
and
his son, the

for further assurance, which are
strictly limited to the acts of the
cove-
was
nanting parties themselves and those

claiming under them, it would not be
inconsistent with the general tenor
a covenant for quiet enjoyment of
of the deed to hold that this second
en."
in
Clanrickard
v.
Sidney,
Hobart, 273, where in a grant of the

third part of certain lands, there
Whallon
r.
Kauffman, 19 Johns.
97.
496
An
HOW COVENANTS
undivided moiety of land was conveyed, "

containing,
by estimation, six hundred

covenanted and warranted
acres."
acres,
and the same
is
to contain at least five
There was a limited covenant that
hereby
hundred
in case
of evic-
from
all or
any part of the granted premises, the
should
not
grantor
only refund a proportional part of the
consideration-money, but should pay the value of the im-
tion
Then followed a covenant for seizin and

" in manner and form aforesaid."
" There
convey
"
were also," the report says, covenants for quiet enjoyment,
against incumbrances, for further assurance, and a warranty," but whether these were general or limited is not
provements,
etc.
right to
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 altomentioned.
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
should be
to these parts
five
that
by warranting that there

hundred acres at least, the inference was that
there might be more, and if more, that the covenants were

to extend to
tled, that
it.
As
the principle has been repeatedly settitle shall not extend to the
quantity
covenants for
covenant should be construed as unlimited, so as to bind the parties in
cause, prove defective, and that, not

to the party who would be the proper
an absolute and unrestricted manner,
hand
The subsequent covenants
benefit of the wife and issue of the
are not
covenants by wholly different persons, but covenants by the former

covenantor and an additional person,
It would be absurd for a party in the
game deed,
in relation
to the
same
property, to enter into the usual limited covenants, and yet bind himself
absolutely to pay damages in case the
title to the lands should, from
any
to receive
marriage.
the
The
money
settlor
for the
meant
to
covenant only for what he had, for

what might be in his power to settle."
It
should be observed, however, that
these remarks did not form
any part
of the decision, the Chancellor say" lam not now to deing expressly,
cide the question as to the legal extent of this covenant."
497
of land conveyed, unless such clearly appear to be the intention, it is difficult to perceive how there could, on this
The case
ground, have been a doubt as to the decision.
Court
without
the
reference
to
was, however, considered by
and
this principle,
was held that the first warranty, being

hundred acres, the other covenants
the words " in manner and form afore-
it
only to the extent of five
went no further
said," being
them with
sufficient to connect
limited
this
covenant.
1
Davis
v.
Connect.
Lyman,
252, was a very clear case.
In a
conveyance of a fee-simple estate,

the vendor covenanted that he had
done no act
and
were clear of all
to afl'ect the title,
that the premises
mortgages, judgments or liens of the
warranty, in said assignment mentioned, unto him, the said John Dieter Heller,
the above obligation

his heirs,
able
nature or kind whatsoever, followed

by a limited covenant of warranty,
said
and it was held that all the covenants

were limited which was unquestionably correct, not only on account of
the intimate connection between the
first and second covenant, but from
the very words themselves of the
now
latter.
7
Serg.
The
&
case of Miller
v.
llawle, (Pa.) 32,
Heller,
may be
here noticed.
to his heirs
and
as-
now, the condition of

such, that if
is
bounden George Miller or

shall and do deliver
peace-
the above
any
said parties of the first part of
and
signs forever,
possession of said premises to

or his heirs,
John Dieter Heller
at or before the fifteenth
next,
day of April
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
and against
Miller and his heirs and
aforesaid,
said
is
George
assigns, then
the obligation to be null," &c.
Miller
Miller had, in June,

1 789, purchased land at sheriff's sale,
as the estate of Mounce Jones.
In
brought an ejectment against Jones,

in which he recovered
possession,
November
and delivered
Jones was
of that year, and while

still
in possession, Mil-
ler assigned
his
estate in
Heller, giving him a

this recital and condition
to
the land
bond with
" Where-
George Miller abovesaid, by a

certain assignment, on a deed executed by the sheriff of Northumberas,
land County, to him, the said George

Miller, for certain premises theivin
described,
did
and convey the
grant, bargain, sell

said premises by a
42*
it
to Heller
but the
being afterwards evicted by

Nicholas Jones, who claimed under
Mounce Jones, brought debt on the
latter,
bond.
The Court
held,
however,
that the condition in the
bond was
evidently limited in
Mounce Jones
its
himself,
application to
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
408
HOW COVENANTS
Wright was followed
England by Foord
Wilson, where the assignor of a term for years covenanted that he had done no act to incumber
that, not-
Browning
v.
in
v.
withstanding any such act, the lease was a good and suband that he had good right to assign in
sisting one
manner
aforesaid.
plausibility, that
where the
title
it
Notwithstanding
was urged, with
the conveyance of a leasehold estate,

could not be so easily examined as in the
in
case of a freehold, the purchaser must expect greater security from the covenants, it was clearly held by the Court
that the intention of the parties was too plain to be gotten
"
that the words " and that
over
connected the general
covenant with the preceding limited one, and that the case
was not distinguishable from Browning

and
v.
Wright, the
having been done, the

bond was satisfied.
sor having failed in payment of the

rent due to the original grantor of
So, on the other hand, in Ireland
the lease, the latter, in 1827, evicted

the plaintiff, who had been previously
time,
this
condition of the
Bin-ham, 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
v.
in possession
vember,
under the lease of No-
1815,
covenant, and
who then brought

it
was held by the
be a lease in possession. The defendant and another leased to the

plaintiff the residue of a term of
Court (Tindal, C. J.,) that the covenant in question was tied up to a
thirty years, granted in August, 1815,

to commence on the expiration of a
the
term
tiff
paying
lease for twenty-one years granted in

November, 1815 ; that is to say, the
during the term thereby demised,

quietly enjoy, was a conditional covenant, and the condition was only to
residue then demised, was to commence in 1836. The lessor cove-
nanted, severally, but not jointly

nor the one for the other, that the
paying the rent reserved, and

performing the other covenants in
plaintiff'
the lease
contained, should, during

demised, quietly enjoy the
premises without disturbance of the
defendant or his co-lessor, or of any
the term
person claiming by, from or under

them or any of them.
This co-les-
covenant for quiet enjoyment during

that the words, the plainthe said rent, &c., should,
be performed when the lessee should

be in possession of the premises unit was, therefore, only
der the lease
a prospective covenant for quiet enjoyment for a term to commence in
1836, and as the condition could not
take effect till that period should
have arrived, so neither could the
obligatory part of the covenant.
i 8
Taunton, 543 ; S. C. 2 J. B.
Moore, 592.
499
as to the nature of the estate transonly difference being

ferred.
Stannard
v.
Forbes
was a stronger case than
The vendor
these.
S. C. should so
of a term for eleven years

that notwithstanding any act done by
covenanted
long live,
him, the lease was valid, and that the same and the term of
if
eleven years
in
expressed, were respectively
therein
full
no wise determined or prejudicially affected

effect,
and also that notwithotherwise than by effluxion of time
had
full
vendor
the
act
such
power to sell for
standing any
and
in
the residue unexpired by effluxion of time; then followed

limited covenants for quiet enjoyment and for further assur-
however, on which the lease depended, had

dropped before this assignment, and the covenantee was
It was urged for the plainevicted by the remainder-man.
" otherwise than
tiff that the words in the second
The
ance.
life,
covenant,
by
effluxion of time," rendered
the idea of
its
restriction
nonsensical, as effluxion of time could have been no act of
the covenantor, but

1
Nev.
2
& Ell. 572, 634

Perry, G33.
Ad.
&
it
S. C. 1
" In
performing this task on
any
much
assistance
from the former de-
may be
cited, as every
instrument varies in some respects
from all others, and must be interto its
own language,
preted according
It should seem that the true grammatical sense of the words employed,
when
that can be ascertained,
must
prevail and no case can be quoted

in which our Courts have thought
;
themselves at liberty to act in direct

Such a course
contravention of it.
might indeed become necessary, for a
deed may contain repugnant clauses;
held,
that these
where these occur, the

warrant us
authorities
comparing the
clause under immediate consideration with all which precedes and follows it, even though not forming
parts of the same sentence, and with
fully
Denparticular occasion," said Lord

u we are not
man,
likely to derive
cisions that
was nevertheless
in
the nature of the obligations entered

into, for the purpose of discovering
and effectuating the intention

expressed by the parties."
really
In all these English cases, it will

be observed that the words of connection between the covenants, were
copulative
(see this
conjunctions.
But
in.
v.
Conway, Dyer, 240,

case approved by Lord El-
Broughton
lenborough
in
Gale
v.
Reed, 8 East,
89, and applied to covenants contained in an agreement for the disso-
500
HOW COVENANTS
words were indeed unnecessary, but that too strong

ences could not be safely drawn from that quality in
infer-
legal
that on the other hand, the absurdity of guarding himself from covenanting against any acts but his own,
documents
and
in the
same breath covenanting
that the term
was not
affected by the acts of any person whatever, was

glaring,
and was rendered still more so by the repetition of the qualifying words in the succeeding covenants, and it was held
that
came within
the case
the authority of
v.
Browning
Wright.
The
class of cases, then,
which may be
said to be based
where the
Wright, appear
instrument contains one or more general or unlimited cove-
upon Browning
to decide that
v.
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
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
to
'
circumstance does not occur in any

other of this line of cases, in all of
which the reader will perceive that no

word was rendered inoperative (except perhaps in Stannard v. Forbes,
where the words, otherwise than by
effluxion of time were rendered in'
'
operative or useless by the construction adopted by the Court). But the

introductory clause was merely held
to extend over all the distinct covenants, 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,

" tenant
Dyer, 240,
pur aulre vie
leases for twenty-one years,
enants that he has not done
but the lessee shall or
and cov-
any
act,
may
enjoy it
Afterwards within
during the years.

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,
Saunders,
60, says, the cases inserted in the
margin of Dyer are of great authorbeing collected by Lord Chief

Justice Treby.
This case is, probaity,
bly, the
same
as that called (Jervis
v.
IVade, reported Cro. Eliz. 615; see

supra, p. 495.

the covenantor intended
restricted
to
own
his
that
acts
all
the covenants should be
the
or
501
acts of those claiming
under him, and the preceding limited covenants will qualify

and restrain the general ones in other words, when it
;
are to he, as it were, cast

clearly appears that the covenants
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
briefly
recognized
in
was
an early case, 1 and was subsequently
adopted to its full extent by Lord Ellenborou^h in Howell

2
The defendant covenanted that notwithstandV. Richards.
ing any act done by him he was seized and had good right
to convey, " and likewise," that the
plaintiff should quietly
without
the
of
the
defendant or his heirs
enjoy
interruption
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 covenants were restrained
by the former limited ones, but Lord
Ellenborough held that there was no connection whatever
between them.
Not only were
there no such copulative
Norman v. Foster, 1 Modern,

101, where Chief Justice Hale said,
not qualified by the second," to which
"If
Wylde,
covenant that
I have a lawful
and that you shall
enjoy notwithstanding any claiming
under me, these are two several cov-
right to grant,
enants,
and the
J.,
first is
general,
and
agreed, and said that one

to the title, and the
covenant went
other to the possession,

2 11
East, 633.
HOW COVENANTS
words as
they were
to lead to the conclusion that
all to
be
considered together, but great stress was laid upon the different character and object of the limited and of the
general
" It is
covenants.
consistent with reason and
good
more
perfectly
sense, that a cautious grantor should stipulate in a
restrained and limited manner for the particular de-
of
scription
title
which he purports
He may
quiet enjoyment.
to
convey, than for
suspect or even
know
that his
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
title is,
in strictness of law, in
not of such a nature as to afford any reaimperfection

sonable chance of disturbance whatever to those who should
is
take under
he
therefore very readily take upon

him an indemnity against an event which he considers as
next to impossible, whilst he chooses to avoid a responsiit;
may
bility for the strict legal perfection
in case
it
liable to
may
of his
title
to the estate,
should be found at any future period to have been

He
at the time of his conveyance.
some exception
have a moral certainty that the existing imperfections
will be effectually
time, or
pending
removed by the lapse of a short period of
certain immediately then imor expected events of death, or the like ; but these
cured so as to obviate any risk of
by the happening of
imperfections, though
disturbance to the grantee, could never be cured by any
subsequent event, so as to save the breach of his covenant
for an originally absolute
and
indefeasible
The same
title.
prudence, therefore, which might require the qualification

of one of these covenants, might not require the same qualification
in
the other of them, affected, as
it
is,
by
differ-
"
ent considerations and addressed to a different object ;

and lie added, that he did not find any case in which tini
See the remarks of Tilghman,
441, cited infra, p. 515.
J., in
Bender
v.
Fromberger, 4 Dallas,
603
covenant for quiet enjoyment was all one with the covenant
1
for title, or parcel of that covenant, or in necessary construction to be governed by it otherwise than, as according to the general rules for the construction of deeds, every
that is, according to the intendeed was to be construed,
tion of the parties.
In this decision,
little
stress appears to
have been
laid
on
the presumption that the covenant against incumbrances was

meant to extend beyond the acts of the covenantor, from the
fact that there
was expressly excepted "
ing
on the
the chief rent issu"
and
any such should be due ;
that expressio unius est exclusio altcrius, it
to the lord of the fee, if
maxim
might be fairly inferred that this was to be the only exception.
So, in the case of Duval
Craig, the vendors covenanted that the premises were free of all incumbrances
created or suffered by them or either of them, and that
v.
they would, against themselves and all and every person

" with this
whomsoever, warrant and defend the premises,
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
" It
to
be adjudged of by two impartial men, &c.
contended," said Story, J., who delivered the opinion,

"that the two covenants in the deed are so knit together,
is
that they are to

1
be construed in connection, so that the
This distinction between the
dif-
nants respecting the seizin, the power
convey, and the general
ferent natures of the covenants was
to
also observed
the opinion deliv-
well consist with a restrictive cove-
ered
by Sewall, J., in Sumner y.

Williams, 8 Mass. 162, already re" The covenants
ferred to.
preced-
nant against incumbrances, 2 Rol.

And, taken together, the
250, 1. 5.
several covenants stand unconnected
ing and the covenants subsequent to

the covenant against incumbrances,
Coveare not of the same import.
in sense
in
may
and expression, and unconone by the other."

Wheaton, 45.
trolled the
a 2
title,
504
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 restriction to both covenants,
and
if so,
then the action cannot be
sustained, for the declaration does not allege
or any
There
any
eviction,
demand
is
or refusal to indemnify with other lands.

It
certainly considerable weight in the argument.
not unreasonable to suppose that when the parties had

provided a specific indemnity for a prior claim, they mean
is
to apply the
rated in the
same indemnity to all the other cases enumefirst covenant.

But something more than the
mere reasonableness of such a supposition must exist to

The coveauthorize a Court to adopt such a construction.
nants stand distinct in the deed, and there is no incongruity
or repugnancy in considering them as independent of each
The
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 reother.
first
sponsible to secure its performance by a pecuniary indemnity ; the second, including a warranty against the prior
claims of strangers also, of which the parties might be ignorant, they might well stipulate for an indemnity only in
lands of an equivalent value.
The case ought to be a very
strong one, which should authorize a Court to create, by

implication, a restriction which the order of the language
It ought to be one
does not necessarily import or justify.
which no judicial doubt could exist of the real intention
in
of the parties to create such a restriction.
pronounced that such
is
It
cannot be
So in a very
the present case."
1
the deed contained a covenant
recent case in Massachusetts,

l.Eastabrook v. Smith, 6 Gray,
572. " The question," said the Court,
" how far and in what instances words
tended to other covenants therein,
was discussed by Parker,

ner
v.
J., in
of restriction
adjudged cases have since been
nexed
collected
to
and qualification anone covenant in a deed
conveying real estate are
to
be ex-
Sum-
Williams, 8 Mass. 214, and the
Vendors,
c. 14,
3,
fully
Sugden on
Platt on Cove-
and compared
in
505
all incumbrances except a certain mortgage, followed

a
by 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
against
of warranty, but the Court conceived that as the two covenants were not connected covenants, of the same import and
fied
by the
other.
same
one was not qualiThe defendant might well covenant to
directed to one and the
object, the
warrant against the eviction of the plaintiff* 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

in the
any
v.
Marshall, however, the covenants
assignment of a leasehold were, that notwithstanding

done by the seller, the lease was a valid one, and
act
might peaceably enjoy without

from
the
his
seller,
executors, &c., or any other
interruption
or
person
persons whomsoever having or lawfully claiming,
further, that the purchaser
any
estate
the premises,
in
brances by the
seller,
enants, and one

limited, if it
were
and
that
free
from incum-
concluding with a limited covenant
Here, then, were three limited cov-
the covenant for quiet enjoyment

to be construed as standing alone.
having been evicted by a
un-
The
to that of
title
paramount
was strongly urged that this case was identical with Howell v. Richards, as the limited covenants were
those which assured the title, and the absolute one was that
which assured the possession, and that the reasoning of Lord
plaintiff'
the defendant,
it
Ellenborough was, therefore, directly applicable, and further,

that a different construction
nants,
c.
11,
7,
and Rawle on Cov-
It would
enants for Title, c. 10.
therefore be a superfluous labor in
this
case to
comment on
43
those nu-
would render inoperative the

merous decisions and the
between them."
]
Brod.
Moore, 702.
&
distinctions
Bing. 319;
S.
C. 3
506
HOW COVENANTS
" or
any other person or persons whomsoever." It
1
was, however, held by the Court, that the case was distin-
words,
guishable from Hovvell v. Richards, which, it was said, proceeded mainly upon the exception of a chief rent from the
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-
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
brances, which
suffered
by the covenantor should operate
nantee's disturbance,
were
to stand absolute
to
the cove-
the covenant for
if
quiet enjoyment
and unqualified, that no lawful claim
whatever should operate
With respect
persons whomso-
to his disturbance.
"
all
to the generality of the expression,
" that those
" I
said
Ch.
Dallas,
J.,
think,"
ever,"
construed to
must be
mean persons
covenants, that
is,
of the description in the other

persons claiming under the covenantor,
But Park, J., in disor persons claiming under them."

senting from these opinions, correctly observed that the
circumstance of the chief rent in Howell v. Richards,
it
formed no ingredient in the judgment in that case
was not even hinted at, and was only mentioned by Lord
"
and indeed, the
Ellenborough in stating the record
fct
by
Judge (which Lord St.
to
observed
be
a
has
Leonards
very just one), between the
different natures of the covenants, seems not to have been
distinction taken
observed in Nind
1
that learned
v.
Marshall.
Dallas, Ch. J., Richardson
and
William, Richard, and Armistead, to
Iloomes's Admr., 8
daughter Sophia, and to his grandson John, certain lands, and directed
that if any should die, without issue
Grattan, 853, the authority of Nind

v. Marshall was relied upon, but not
living at his death, his estate" should

be equally divided between the sur-
Burrough, Js., (Park, J., dissenting.)

2 In the recent case in
Virginia,
of Dickinson
v.
sustained by the Court.

had devised to each of his
testator
sons,
John,
his
vivors.
All these devisees survived
the testator,
and took possession of
50J
In attentively considering- these two cases, their differIn Hovvell v. Richards, it was by
ence seems to be this.
no means clear that the covenantor did not mean the covenants for quiet enjoyment and against incumbrances to be
unlimited, both from the fact of the chief rent being the
only exception to the latter, and for the very satisfactory
reasons given in the opinion, that a covenantor might not
the estates
them.
respectively devised to
years after, John sold
Some
the estate devised to him, and Richard and the other children of the
testator joined in the covenants in
the deed as follows " And the said
:
without issue, and Richard also died,

leaving several children, who, claiming to be entitled under their grandfather'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
John Hoomes for himself and his

heirs, and the said William, Richard,
Armistead, and Wilson Allen, and
Sophia his wife, for themselves and
v. Hoomes, 1
Grattan, 302,) when
the purchaser filed a bill to restrain
these proceedings, on the ground of
their heirs, as contingent devisees or

legatees, under the will of Col. John
other estates having come by descent

to the children of Richard, who, it
Hoomes, deceased, by whom said

land was devised to John Hoomes,
nants of their father.
do hereby covenant and agree to

and with the said (purchaser) that
they will warrant and defend the feesimple 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
was claimed, were
liable
on the coveIt
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-
by the Court, that the covenant

of the father did extend to the presever,
fully
ent claim of his children.
all
case, the
confirm to the said (purchaser),

the right they or their heirs now
have, or might or may hereafter have,
to said land or
him and
any
and
his heirs
part thereof, to
assigns forever,
from the said John, William,

Richard, Armistead, Wilson Allen
free
and Sophia his wife, and their heirs,

and of all other persons in the whole
world." John, the vendor, and William, his brother, subsequently died
was con-
tended for the defendants that the

covenant of warranty was obviously
student must be
In
this
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.
60S
HOW COVENANTS
warranting the absolute perfection of his title,

he
feel justified in warranting
would
though
against the
of
a
flaw
in
it.
Here,
then, the
improbable consequences
feel safe in
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
Nind
in
v.
Marshall,
if
the
had been that one of the cove-
intention of the covenantor
it
might seem on the one
from the use of the words " and all persons
whomsoever," the direct words of connection with the other
limited covenants would have to be disregarded
while on
nants should be unlimited, as
hand
to be
the other hand, if the intention
should be limited to his
own
were that
acts, the
all
the covenants
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
was
latter
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 intention to limit all his covenants with sufficient distinctness as
one of them
to
and
in this
was not followed, and the

construed with
much
dilemma
where the intention
of the covenantor evidently harmonizes with the rule, and its applicatherefore useless.
It is cer-
one hand that the

use of a certain form of expression
tainly hard on the
last en
upon a party a liability
where there are other expressions
which raise a doubt as to whether
should
was
liberality.
the words of the party using them,

is as to this subject seldom or never
is
referred to
Indeed, the rule of law which

requires a strict construction put on
tion
maxim
intention of the covenantor
applied, except
the
he intended that such should be the

case but as was said by Bayley, J.,
in Barton v. Fitzgerald, 15 East,
" I admit that the words of
a
546,
covenant may be restrained by other
;
words in the deed,
if
we can
see a
them from
the other parts of the deed. But it
would be a very dangerous rule if it
were to be applied to every case
where ingenuity can show that l>y
clear intention to restrain
to tho
giving the natural moaning
words of tho general covenant, other
FOR TITLE MAY DE LIMITKD OR QUALIFIED.
509
1
Raincock, a house, which
had been the property of one Ann Hopley, was, after her
death, sold by her daughter, whose husband covenanted with
Young
v.
the purchaser, that notwithstanding any act or default of

him, his wife, or Ann Hopley, the grantors were seized
that notwithstanding
default, they, or
any such act or
one of
that the covenantee should

them, had good right to convey
of
without
interruption from them or either
quietly enjoy
them, or any one claiming under Ann Hopley, and that the
grantors, and every one claiming under them, or under Ann
Hopley, should make further assurance upon reasonable
It turned out that the daughter was illegitimate,
request.
It was
and the purchaser was evicted by the rightful heir.
clear that the only covenant upon which the plaintiff could
recover was that for quiet enjoyment, as the entry of the heir
was not caused by any act or default of Ann Hopley. The
words in other parts of the deed
might be rendered nugatory." This
case of Barton v. Fitzgerald, depended, as Lord St. Leonards says
of it, on very particular circumstances. In an assignment of a lease,
reciting the lease to be for the term
of ten years, there was a covenant

the vendor had done no act
that
to incumber,
"
and
also,"
sisting,
except an underlease,
that the lease was sub-
and not void or voidable,
and could not be restrained by the

limited
term.
another should
so
long
live,
and,
upon the death of the cestui que

term expired, when the
vie, the
purchaser brought covenant. It was
held by Lord Ellenborough, the other
Judges concurring, that the second

covenant was general and unlimited,
43*
pro-
recital,
Then, when he covenants,"

Blanc,
J.,
" that the lease
is
valid in law for the premises thereby

assigned, is not that a covenant that
a lease valid for the whole term

which it is before expressed that
"
had to run ?
and Lord Ellen-
it
in the recital,
for ten years, if
it
"
Le
said
surance.
turned out, though there
opinions
assignment in the following year,

they had become vested in the then
assignor for the remainder of the
it is
It
The
which
was, that the premises were demised
for a term of ten years, and that by
together with limited covenants for

quiet enjoyment and for further as-
was no mention of
that the lease was
ones.
ceeded mainly on the
for
"
If the rest of the

borough said,
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."
i
Com. Bench, 310.
510
HOW COVENANTS
defendant, therefore, contended, on the authority of Browning v. Wright and Nind v. Marshall, that the restrictive
words must be drawn down from the
first
two covenants
but Coltman, J., who delivered

" It cannot be
the opinion of the Court, said
disputed
that the general introductory words of one of the usual
and embodied
in the third
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.
admitting this principle, the question will remain,
son there
But,
what
rea-
for introducing into the present covenant, by

a
restrictive clause which is not found in it.
implication,
The covenant, read without the restrictive clause, seems to
is
The
be a reasonable and usual one.

recited to have been purchased
estate in question is
by Mrs. Hopley, and
is
sold
On such a
by one purporting to represent her as heir.
it would be reasonable to
that
the estate
conveyance,
expect
should be cleared from any charges from Mrs. Hopley
downwards
to the present
purchaser, and, accordingly, the
it stands, is a covenant for

quiet enjoyment
lawful
and
Raincock
let,
&c., by
wife, or by
against any
other
or
any
person lawfullv
equitably claiming from or
covenant, as
under Raincock and wife, or either of them, or the said
Ann
The covenant, as it stands, without the reHopley.

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 restrictive words which it is
to
introduce
into the covenant
sought
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
511
not a breach of the covenant for quiet enthis inconsistency will result from it, that the
Mrs. Hopley,
is
joyment,
covenant for quiet enjoyment will not extend to protect the
purchaser from a disturbance by Peter Hopley but the
covenant for further assurance will
a conveyance from Peter Hopley of
or in case of refusal, entitle
him
entitle the
purchaser to
his right to the estate,
to
maintain an action
against the present defendant for such refusal."

1
So, in the recent case of Crossfield v. Morrison,
the assignment of a lease
in
from the
where
to the deplaintiff
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

The breach assigned was that certain
rents and covenants.
rents
became due
owners of the reversion, which the

pay, and the jury having found that
to the
was obliged to
plaintiff
the defendant was not in possession of the rents and profits
at that time, the latter contended that the covenant to indem-
was restricted to such time as he should be in possesBut the Court held that the possibility of a re-sale
must have entered into the minds of the parties. On such
sale taking place, it was to be
expected that covenants would
nify
sion.
be entered into by the purchaser to perform the covenants

of the original lease, but the purchaser might make default
performing them, and it was therefore reasonable the

plaintiff should require from the defendant a covenant to
in
It
indemnify him against any breach of those covenants.
that
the covenant to
was, therefore, held,
indemnify was not
restricted, and judgment was entered for the plaintiff non
obstante veredicto.
i
Com. Bench, 286.

In Belcher v. Sikes, 8 Barn.
Cress. 185,
&
on the dissolution of a
copartnership for supplying the navy
HOW COVENANTS
But where the first covenant is general, a sublimited

covenant will not restrain the generality of
sequent
the preceding covenant, 1 unless an express intention to do so
Second.
appear, or unless the covenants be inconsistent.

In the early case of Gainsforth v. Griffith, 2 on an
assignment of a lease, the vendor covenanted that it was a valid
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
lease,
the generality of the preceding covenant was not restrained

3
So where, in Hesse v. Stevenson, 4 on an
by the latter.
with provisions, it was covenanted by
one of the partners, that notwithstanding any act done by him, it
should be lawful for the other partner to receive the money, debts and
covenant against incumbrances between preceding and subsequent unlimited covenants for seizin
premises thereby assigned, without

any let, suit, interruption or denial of
fied the others,
the assignor, his executors or administrators, or any person claiming un-
their operation
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 being inconsistent with the subsequent
part of the covenant.
1 This was cited in the late case of
Peters
State
Grubb,
9 Harris, (21
See supra,
460.
II.)
2 1
3
v.
Penn.
p. 301.
Saunders, 58.
Lord Eldon
said of this case (in

that the as-
Browning v. Wright,)
signor seemed to have
said,
"I not
only covenant for the goodness of my

under
title, but that you shall enjoy
that
title,
from me."
without any interruption

In the elaborately rea-
'soned case of
8
Mass.
162,
Sumner v. Williams,
members of the
the
Court differed as
to the effect pro-
duced by the insertion of a limited
and of
being of opinion that the limited covenant quali-
warranty; Parker,
J.,
which might be con-
sidered " as limited
of the deed."
and restrained in
by the whole context
There were special
circumstances connected with these

covenants, which might tend to lead
They were made

and
although a
by
majority of the Court held them
personally liable on their covenants,
to this conclusion.
administrators,
yet the circumstance of their acting

en autre droit, did certainly, as the
learned Judge remarked, aid the construction.

It was, however, said by
" covenants
Sewall, J., that
respecting the seizin, the power to convey,
and the general title, made without
may well consist with a

covenant against incumAnd taken together, the
restriction,
restrictive
brances.
several covenants recited stand un-
connected
in sense
and uncontrolled
and expression,
the
other."
4
3 Bos.
&
Pull. 565.
one by the
513
assignment of certain shares in a patent for paper making,

there was a covenant of full power and authority to make
the assignment, and that the covenantor had not done anything to forfeit any right or authority he ever had, &c.,
Lord Alvanley
held, that unless
the parties could not intend to
it
appeared that
irresistibly
make
a general covenant, the

Court ought not to indulge them in leaving out words which
are ordinarily introduced, and by which the real meaning of
the parties might be plainly understood ; and as the words,
"
notwithstanding any act done by him," were omitted from
the
first
covenant, the omission of these words
decisive, as the attention of the purchaser
any words
to the intent of the
nant to his
own
acts,
of construction in
and
it
was not
itself
called
by
vendor to confine his cove-
was well added,

v.
Browning
was of
that the rule
Wright had never been
such a length as to decide that because some

clauses are introduced into a deed which do not add to the
carried
to
security provided by the other clauses, the security so provided is to be restrained. 2

1 It
should, however, be noticed of
this case, that there
why
are
many reasons
the covenants in the assignment
of such a patent should be interpreted with the greatest strictness against

the party making them.
2 In the
Attorney-General
writing of the grantor, who was an

end of the covenants,
attorney, at the
which were printed

that the
grantor
clause to restrain
Pur-
mort, 5 Paige, (N. Y.) 620, there was

a general warranty to the grantee
and his heirs, " and if he or they
be legally evicted, to pay the

value of the premises with the improvements at the time of such evicshall
with the legal and necessary

charges of defending the same, if by
reason of any incumbrance of the
tion,
said party of the first part, his heirs

or assign*" This deed was delivered
as a general warranty deed, the clause
in italics being inserted in the hand-
it
was urged
and qualify
prior covenants for

v.
and
intended by
title,
and, there-
fore, fraudulently delivered the
as
this
all his
deed
containing a
general warranty,
But Walworth, Chan., said, " I think
it very evident from the whole transaction, that
the written clause was
him for a
and much more honest pur-
inserted in the deed by

different
The printed blank used upon

pose.
that occasion was from a form which
had myself prepared and had printed, to be used only in special cases.
And the concluding clause, making

the grantor liable in case of eviction
for the full value of the premises,
HOW COVENANTS
an early case in New York, the vendor covenanted that he was well seized of the premises, and had
But
in
convey them, to which was added a covenant

"
of warranty
against all claims and demands whatever,
good right
to
and it was held that these

except the lord of the soft"
words expressly declared to the grantee that there was a
lord of the
could, in
grantor
seized,
soil,
when he
and
one
admitted, and
was a
that there
parties,
was
was,
enants.
title
and
v.
2
Horton, the
first
for right to convey,
two, for quiet
were limited
two covenants,
were unlimited
viz.,
;
the
enjoyment and against incumbrances,

Court
to the acts of the covenantor, but the
of Exchequer held that
it
was
with the improvements at the time of

such eviction, without reference to
amount of the consideration ex-
the
its
good
last
was so understood by both

who, in the next
The exception
operation.
said, manifestly intended to apply to both cov-
So, in Milner
for
it
lord of the soil,
was excepted from
covenant,
it
could not be supposed that the

line, covenant absolutely that he was
it
the intention of the cove-
(cited supra, p. 41, as to another

point), after the description of the
" the above is
it was
premises,
said,
extraordinary and unusual cove-
all claims and demands whatsoever, as far as the Connecticut and Susquehanna Company
Purchase extends, and is regularly
made " then followed general cove-
nant to the case of an eviction, on

account of an incumbrance created
nants for seizin, of right to convey,

for
enjoyment, and of warranty,
pressed in the conveyance, was not

usually inserted in full covenant warranty deeds. The defendant had a
right to the written qualification of
this
himself.
by
am
satisfied, therefore,
that he inserted the written clause

this purpose only, and not to
qualify or alter the legal effect of
the other covenants in the convey-
for
ance."
1
Cole
203.
not
v.
The
Hawes, 2 Johns. Cases,

student should be careful
to rely too strongly
on
this case
quiet
The defendant pleaded
IT.
Decker, 10 Mass. 267,
that all the
estate of the
Susquehanna Company
came to, and was vested in the plaindemurrer, was held
tiff, which, on
bad, the Court being clearly of the
opinion that the general covenants
were not restrained by the alleged

limitation as to the title of the Sus-
quehanna Company.
a
in practice.
In Phelps
warranted from
M'Clelland's U. 647.
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
1
King's Bench, in Smith v. Compton, where the vendor
sold by virtue of a power, and covenanted that the power
was in full force, and that he had good right to convey,
which was followed by limited covenants against incum-
brances, for
quiet
and the Court
were
enjoyment, and for further assurance,
said, that
looking at
cited for the defendants, there
all the cases which

was only one (Milner
Horton), where a general covenant had been held to be

qualified in the manner here contended for, unless there apv.
with a restrictive covenant,

or unless there were words in the covenant itself amount-
peared something to connect
it
and it was further said that having

ing to a qualification
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
must,
an absolute covenant for
qualified covenant,
3 Barn.
&
in
a court of law, be considered as
title.
a special warranty was intended,
Adolph. 189.
So, in an early case in Pennsylvania, Bender v. Fromberger, 4 Dallas,
440, which was decided

after
years
though
case,
Hesse
without
v.
three
Stevenson,
referring to that
J., thus intro-
Tilghman, Ch.
covenant of more general import,

To this rule I add the two following
ones
That
part shall
duced the statement of the covenants

contained in the deed " I subscribe
to the principle laid down by Lord
Eldon in the case of Browning v.
Wright, cited on the part of the defendant, that where it manifestly ap-
gain and
pears from a consideration of every

part of the deed, that no more than
fee-simple,
it
be so construed, although the

deed in one part contains words of
shall
in construing
a deed, no
be rejected unless
it
pro-
duces contradiction or absurdity, and

that in doubtful cases, a deed is to be
construed in favor of the grantee.
The deed in question contains a con-
veyance by the words grant, barsell ; a covenant that the
grantor
is
seized of a good estate in

subject to no incuni-
HOW COVENANTS
516
So, in a recent case in Massachusetts, a vendor covenanted 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
ion, that
prevailing opinan Act of As-
virtue of
by
sembly passed in the year 1715, the

words grant, bargain and sell, have
the force of a general warranty, unless restrained by subsequent expres-
To
sions.
ranty,
it
qualify the general warhas been the custom of scriv-
eners to insert a clause of special
warranty.
And
I believe
it
in-
is
serted pretty much as a matter of

course, unless in cases where the parties
agree on a general warranty.
The defendant contends

tent was to give no
cial
more than a spe-
warranty, because the clause of
special warranty
is
and contradictory
Now,
ranty.
with him.
cial
that his in-
It
inconsistent with,
to
a general warcannot agree
in this, I
is
certain that the spe-
warranty, and more,
is
included
It is an inaccuin the general one.

rate mode of conveyancing; but
no absurdity or contradicmaking one covenant against

yourself and your heirs, and another
The special
against all mankind.
warranty was unnecessary, and it is
there
is
tion, in
to
be attributed to the ignorance of
the scrivener,
who probably thought
was a matter of course, without

intending to affect the more general
he
preceding covenant; or perhaps
it
might think
it
necessary to guard
from
incumbrances
all
that
the
it
all
is
special
with the preceding general covenant,
common
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 conpossible for a man of comto declare that he en-
ceive
it is
mon
sense
gages that he had a perfect estate in

fee-simple, and had a good right to
convey such perfect
but such as every man understands, which is not the case with a
sions,
To a common
warranty.
is not very
intelligible that
there should ever be occasion to warspecial
man,
it
rant and defend against himself and
persons claiming under him, for it

very natural to suppose, that when
a man has used words sufficient to
all
is
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
In short,
aid of a special warranty.
the insertion of the clause of spe-
warranty is generally the act of

but I presume, that no
scrivener could be so stupid as to incial
in fee,' unless
in
without
These are no technical expres-
heirs.
pears from the general covenant,
free
estate,
intending to warrant to a greater extent, than against himself and his
sert
is
It is very
a covenant of
that.
to connect
pan of the deed, because the estate

was subject to a ground-rent, as apsaid that the estate
one covenant, because

is connected
by the words and
scriveners
it is
except the
been urged,
warranty
against the effect of the words, grant,

biirynin and sell, used iu the first
which
It has
said ground-rent.
a covenant that 'the grantor

was seized of an in<K'fra>ibli' r-i.itc
tlu-
lu>.
had luvn told by
parties that a genrral warranty
517
and had good right to sell and convey them to the plaintiff,
and that as to a certain portion thereof extending westward
from a given boundary, the same was free of all incumbrances, and he would warrant and defend
it
against
the
" It was contended

persons.
by the
"
that the covenant of
defendant's counsel," said the Court,
seizin was to be considered as limited in the same manner
lawful claims of
all
If the parties had so intended,

they would have so expressed their intention in the restrictcannot add to the language, unless it can
ing clause.
as the
other covenants.
We
be made clearly to appear that a word was omitted by mere

mistake.
Nothing of this kind appears in any part of the
for if the intention of the
deed, but quite to the contrary
;
was
the covenants alike,
it would, unso
There
have
been
was a good
expressed.
doubtedly,
reason, probably, why a distinction was made between the
parties
to limit
all
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
But such a
brance.
seizin.
Most
a paramount title being an incumtitle does not affect the covenant of
decidedly, therefore, the construction of the
deed contended for by defendant's counsel on this point,

3
cannot be maintained."
was intended.
am, therefore, of
opinion that the special warranty in

this deed has not the effect of controlling the
enant."
precedent general cov-
Although the decision in

no longer law, as applied
this case is
to the statute to
which
it
refers (it
having been soon after held that the

covenants implied by it were all liraited, and none of them general covenants), yet it explains very clearly
the general rule which was referred
44
to in
v.
Hesse
v.
Stevenson and Smith
v.
Jackson, 3 Gushing,
Compton.
*
Cornell
(Mass.) 506.
2 This
expression refers to a peculiar view taken of the covenant for
some of the Northern States,

which has been explained supra, p.
seizin in
20
et seq.
In the very recent case in the

Exchequer, of Rigby v. The Great
Western Railway Company, 4 Exch.
518
HOW COVENANTS
Third. As, on the one hand, a subsequent limited covenant does not restrain a preceding general covenant, so on
220, the latter leased to the former
latter
refreshment rooms, with a

covenant (inter alia) that certain
if at
trains should stop there at certain

times.
The Messrs. Rigby leased the
'necessary and proper,' in order to

enforce the recited covenant, it must
certain
rooms
to
Griffith,
and covenanted
stipulation provides for all

cases of action and suits; and that
any time an action or
be brought by Mr.
suit
the
in
Griffith
be
that they would, during the continuance of the term, do all such acts as
name of the Messrs. Rigby, and at

his own expense
and that, as the
should be necessary and proper for
latter
enforcing the fulfilment and performance of the covenants, as fully as if
power of attorney
the latter were the assignee of them,

and that it should be lawful for him
himself could sue, it could not be

necessary for Messrs. Rigby to do so
themselves.
are all of opinion
that these arguments are unfounded.
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
Some time after this,

proceeding.
by order of the Company, certain
trains passed without stopping at the
rooms, whereby Griffith sustained a
loss, of which he notified the Messrs.
Rigby, and requested them to

bill in
own
file
own name, and at their

to enjoin the Company
their
cost,
from directing the trains to pass the

refreshment rooms without stopping
and it was held in a case sent to the
Exchequer 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
amounted
stipulation
to
name
to sue in the
of the Messrs. Rigby, so that Griffith
We
The
first
eral,
part of the covenant
and extends
to all
is
gen-
necessary
and proper acts for the purposes

mentioned, whatever they may be,
and includes a
in
bill
when
equity
necessary and proper.

The latter part contains no express
qualification or limitation of the covenant nor is there any implied one,
that
act
is
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 altering or modifying either. The second

part is in effect a power to sue, and
no more.
It
is
expressly given as
an additional benefit
by the words 'and
lawful.'
It
Mr.
to
also
extends
it
to
Griffith,
shall
all
be
suits,
empowering
name, and at
whether they are

necessary and
proper' or not; whereas the general covenant is confined to those, so
own cost, did not limit or qualify

" It is conthe general covenant.
tended on tin: part of the plaintiil',"
of using the names of the plaintiils

in any suit whatsoever.
Even if this
the
latter
stipulation,
Griffith to sue in his
his
said
Buron Parke, who delivered the
judgment of the
Court,
" that
the
that Griffith has an unlimited
authority had been confined to

cssary and proper
suits,'
it
power
'
IH>C-
would not
5l9
the other hand, a preceding- general covenant will not enlarge a subsequent limited covenant.
In an early case,
one seized of an estate under a grant
from the Crown, in conveying it to a purchaser, recited the

the conveyances from thence down to himletters-patent and
self,
and covenanted that he was seized
in fee, that
he had
and that there was no reversion
in the
good power
Crown, notwithstanding any act done by him. The Court
below held that these last words restrained the generality of
but this was reversed on writ of
the first two covenants
to convey,
and
was held
words did not

"
extend to the preceding covenants,
and the only ground
error,
on which
it
supposed the Court
to have proceeded," said

of
the
case, in Browning v. Wright,
speaking
that they considered it to have been the intention
I
Lord Eldon,
"
is this,
that the restrictive
in
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
3
existing in the Crown, unless that reversion appeared to
have been vested in the

Fourth.
Where
Crown by
his
own
acts."
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
Thus,
in
land.
Cray ford
v.
Cray ford,
have been inconsistent, because it is

an advantage to a party to have the
power of conducting a
suit himself,
instead of relying on the covenant

of another party to conduct it and
;
the latter stipulation applies to

all covenants in the lease, the general
lastly,
covenant applying only
(o the recited
covenants, as to stopping at the station, &c."
91
where a vendor cove-
Trenchard
v.
Hoskins, Winch,
R. 62, 65, 203.
S. C. Littleton's
See
1 Siderfin,
328, and
Saun-
ders, 60.
3
J n grants of land
by the Crown,"
says Lord St. Leonards, 2 Sugden on
" it is usual to reserve
Vendors, 535,
a reversion, which the grantee cannot bar."

4
Cro. Car. 106.
HOW COVENANTS
520
nanted that he was seized in
fee,
done by him or his ancestors

in the
Crown
that the estate
notwithstanding any act
that there
was of a
was no reversion
certain annual value,
should enjoy the same discharged

plaintiff
incumhrances made by him or his ancestors, it was
held that " the covenant for value was an absolute and dis-
and that the

from
all
tinct covenant,
the covenant
struction
The
was
and had no dependence upon the first part of

and in a subsequent similar case l the con-
"
;
the same.
cases which have thus been cited will give
some
idea
of the difficulties which present themselves, where, under

artificial and refined
system of conveyancing, the
a highly
occasional unskilfulness of the draughtsman has caused limited and unlimited covenants for title to come, as it were,
into collision with each other.
American authority on
by
the reader.
It is
The comparative absence
this subject
owing
to
of
must have been observed
two causes.
In the
first
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
place,
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-
or frequently inserted in the most primitive manner,

erally,
and very often, as is the case at the present day, the only
Hughes v. Bennet, Cro. Car. 495;
C.W.Jones, 403. In Rich v. Rich,
Cro. Eliz. 43, however, Lord Rich
yearly value of
S.
1,000, but it was

adjudged against the plaintiff; for
the words notwithstanding any act*
covenanted that certain lands con-
extend as well to
veyed to the plaintiff for her jointure

were of the yearly value of 1,000,
and should so continue, notwithstanding any act done or to be done by
" and the action was
him,
brought
for that the lands were not of the
covenant made, as
thef
time of the
to the time future,
and though they were not then of

that value, the covenant was not
broken, except some act done by
him was the cause of it."

was that of warranty. Hence
express covenant employed
there was little room for the complexities which attend the
of
introduction
many and elaborate covenants.

many of the States, some or all
In
the
of these
second place, in
from
enactment
been
have
covenants
implied by statutory
the use of certain words employed to pass the estate,
and
when thus
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
the covenants,
all
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
Covenants
to.
for title
may
in
also be limited
and restrained by
the instrument which contains
any express agreement

2
them.
Thus, although in an old case, it was urged that
the agreement was a remote one at the end of the deed, and
from the covenants,

So where there
qualify them.
far distant
it
is
was nevertheless held
to
a cotemporaneous sealed
3
where the deed con-
agreement, as in a late case in Texas,
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
4
three years, and that after the expiration of that time the
1
Infra, p. 537
Brown
v.
et seq.
Brown,
Levinz, 57;
1 Keble, 234.
Black v. Barton, 13 Texas, 82.
That is to say, " in that event
S. C.
3
4
there should be no claim upon the
44*
warrantor for more than the purchase-money sfithout interest, whereas the general warranty would hold
him
and
liable
for the
interest."
purchase-money
HOW COVENANTS
general warranty was in force for the

might he recoverable at law.
would
It
also
seem
amount which
full
that whatever
be the rule
may
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
Thus
into
to
contrary
the
of
intention
the
parties.
the early case of Coldcot v. Hill, Dr. Coklcot

having purchased church lands in fee under the title of
Cromwell, sold them to the defendant's testator with general
in
covenants for the
title.
the Restoration, the
Upon
was avoided, and the defendant,
estate
in
an action on the
covenants, recovered back his purchase-money, upon which

bill to
enjoin the collection of the judg-
the vendor filed a

" which did
ment,
getting him
suggest a surprise upon the plaintiff in
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
into that covenant,
further than against himself ; and there being proof of this,

the purchaser was decreed to enter satisfaction on the judg4
ment, and pay costs.
A
1
few years
See as
2 1
"
to this, supra, p.
29.
Cases in Chancery, 15
Freeman,
3
after this decision,
S. C.
173.
the hearing, it was proved

that the matter of the covenant upon
Upon
which the judgment was had against

the plaintiff was controverted in the
paper draught, and put out by the
plaintiff's counsel, and in again by
tin;
defendant's counsel, with the al-
teration only that whereas the covenant was that the plaintiff was lawfully seized, &c., the plaintiff's counsel
put out (lawfully) which signified
nothing
for to
covenant one
is
seized,
is
bill
was
filed to
en-
intended lawfully. But some proof

it was declared upon seal-
being that
ing, that the plaintiff should

take for his own act only,
underit
was
decreed that the defendant should
acknowledge
satisfaction
on the judg-
ment and pay costs."

4 The
report also says,
that a like
case to this between Farrar and Farrer was heard and decreed after the
same manner, about
six
months be-
fore.
5
Fielder
Finch, 90.
v.
Studley, Rep.
Temp,
523
judgment obtained upon a general covenant that the

grantor had lawful power to convey, "which being contrary
to the true intent and meaning of the said parties, and it
the coveappearing so in the conveyance, where the rest of
join a
nants are restrained to the acts done by the plaintiff and all
claiming under him, and that the covenants ought to be so
restrained, especially since the purchaser knew the plaintiff's
title, and that he sold him only such estate which he had
in the premises,
words
....
contradicted by
bein
the Court decreed that the general
covenant ought not to oblige the
this
in
all
plaintiff';
the subsequent covenants,
and the
only such an estate which he had," and the

defendant was therefore enjoined from proceeding upon his
plaintiff' selling
judgment.
i
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
lected from the instrument
itself,
and
In a
still
or questioned the plaintiff in any of

the covenants in the deed, but continued in the possession, and received
not from anything dehors.
the profits thereof for ten years and

upwards, and after the Restoration,
Lord Alvanley thought, under the
new lease of the

Dean and Chapter of Sarum for three
he or
his son took a
lives,
and had a considerable abate-
ment of
the fine, in respect of the
purchase made by the plaintiff."

2 u This last
case," says Lord St.
Leonards (1 Sugden on Vendors,
"
263),
was quoted
Common
in
a case in the
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
the instrument, could
effect of
only be col-
later case in the

v.
same
Stevenson, 3 Bos.
court,
&
(Hesse
Pull. 575,)
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
marriage
to that court to
articles,
correct
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, corroborated as it was by the form of the
deed and the subject of the contract,

Such evidence was received in the
prior case of Dr. Coldcot
jeant Hide, and

sible."
is still
and Ser-
clearly admis-
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

1
And where land is conveyed by a particular
certainty.
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 quanit has been
tity,
repeatedly held that the covenants for title
apply to the premises contained within those boundaries, and
not to any enumeration of acres.
Thus, in an early case in
Connecticut,
where the defendant was sued upon a covein a

conveyance of one hundred
nant for seizin contained
and ten acres of land, with certain boundaries, it appeared

title was
good to all the land within the boundaries,
but that there were only ninety acres
and the Court held
that the
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
4
Of course, however, this rule will
has been recognized.
not apply where, on the face of the instrument, it appears
1
ell
Howe
.
v. Bass, 2 Mass. 380

PowClarke, 5 Id. 355 Jackson v.
;
Defendorf, I Caines, 493; Jackson

Barringer, 15 Johns. 471 Jackson
;
v.
v.
M'Connell, 19 Wendell, 175; Smith

v.
Binney, 107; Petts v.

Penn. State R.)
Evans,
Gaw,
3 Harris, (15
222; Kruse
v.
Scripps, 11
Illinois,
103.
2
Perkins
287; Large
(Pa.) 488
Webster, 2 N. Hamp.
Penn, 6 Serg. & Rawle,
v.
y.
Gotwalt, 3
Penn. 827, overruling Christine v.
Whitehill, 16 Serg. & Rawle, 112.
3
Snow
r.
Whitehill
v.
Chapman,
Root, (Cou-
Dect.) 528.
4
Mann
Whallon
Davis
13;
Kauffman, 19
Pearson, 4 Johns. 41
101
(N. Y.) 353, (where
most of the
Belden v. Seycases are collected)

mour, 8 Connect. 19, (Bissell, J., dis;
senting); Rickets
v.
Dickens,
Mur-
phey, (N. Car.) 243; Huntley v.

Waddell, 12 Iredell, (N. Car.) 33;
Bauskett v. Jo'nes, 2 Spears, (S. Car.)
68; Lorick
v.
Hawkins,
Richard-
son, (S. Car.) 417; Tucker v. Coeke,

2 Randolph, (Va.) 51, (overruling
Quesnell
v.
Woodlief,
Munf. 173); Ferguson

Missouri, 667.
v.
Id.
Atkins. 9 Gushing, (Mass.)

Roat r. Puff, 3 Barb. S. C.
v.
&
Hen.
v.
Dent, 8
525
that the covenants were directly intended to assure a partic1
ular quantity to the purchaser.

These classes of cases obviously proceed upon the
that the covenants for
title
apply to what
ground
conceived to he
is
the conveyance, according to the insubject-matter of

it has been carried so far, that it
and
the
tention of
parties,
the
has been held in
many
where the conveyance
cases, that
is
of a limited estate or interest, general covenants for title

2
will be restrained by the extent of that interest.
Thus, in
i
Thus, in the recent case of Mor-
3 Strobhart, (S. Car.)

"
199, the release was of all that plan-
ris v.
Owens,
tation or parcel of land situate in said
on the waters of Jackson's

Branch, near Coden's Mills, adjoindistrict,
he does convey two hundred
that
acres
the reference to the claim of
Goode, as a. thing whose extent is to

be found coupled with the conveyance of two hundred acres, is a representation that at least two hundred
ing lands of Joseph Allen, estate of

R. Goode, Elizabeth Thomas and
acres will remain after satisfaction of
Said lands were granted to

John A. Owens, the 5th day of De-
in
others.
cember, 1825, for two hundred and

seventy acres, but a part thereof
claimed by the estate of Robert
Goode the said W. A. Owens, only
is
conveys two hundred acres; that part

claimed by the estate of Goode is not
conveyed and if it should be found
is
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
J.,
The
who
" that
the
claimed by Goode's estate.

declaration," said
the
Wardlaw,
opinion,
'<
grantor conveys only two hundred

is
more
than two hundred acres should re-
main, with entire silence as to the

case of less remaining, and the omission of the words more or less,' or any
'
words expressive of uncertainty, show

that quantity was in the contemplation of the parties,
and that the num-
stance added to a description already

The intention from the
precise.
be entitled to it, together with all

and singular," &c. And it was held,
after a review of the authorities,
acres,
right,
for the
case that
by Goode's
John R. Morris is to
estate, the said
delivered
and the provision
more than two hundred
acres, besides that claimed
(O'Neal!,
grantee's
ber of acres was an essential part of

the contract, and not a mere circum-
that there
that claim
equivalent to a declaration
whole appears
to
have been
to cre-
ate a stipulation that the part con-
veyed should be
dred acres."
at least
To
two hun-
same
the
effect
are the recent cases of Steiner
Baughman,
2 Jones, (12
R.) 106, and Pecare

Missouri, 527.
2
One
v.
v.
Penn. State
Chouteau, 13
instance in which general

title are limited by the
covenants for
estate conveyed, has already been

noticed (supra, p. 457), viz that in
case of a reconveyance to the vendor,
:
HOW COVENANTS
526
1
Sidney, the deed conveyed the
third parts of certain premises for the life of the grantor, with
covenants with the purchaser and his heirs for perfecting
the old case of Clanrickard
v.
the conveyance hy further assurance and for well enjoying

that which was conveyed, and it was held that the covenants
could not he taken to assure a greater estate than the third
2
life of the
So, in
grantor.
part thus conveyed, during the
3
an early case in New York, where a lessee assigned the
" in as
ample a manner to all intents and purposes as
I might or could hold or enjoy the same, and I covenant
lease
with the said P. K. that
I have good and lawful right to

transfer
the
said
and
premises, as is above written,
bargain
are
clear
of
all
and that the same
arrearages of rent and
other incumbrances," it was held that the words, "as is

above written," qualified the covenants, and that it could not
be supposed that the assignor meant to warrant his land-
So, in a case in Massachusetts, where the con"

right, title and interest
veyance was of all the grantor's
in and to the undivided estate devised," it was held that a
lord's
title.
general warranty which the deed contained, was limited to

be an assurance of that particular estate only, and, therefore
of estoppel, in passing
So, in a subsequent case in the
could not be held to operate by
an after-acquired
estate.
way
the purchaser's general covenants are

nevertheless limited to defects or in-
whereunto they are said to be but

handmaids." See also, supra, p. 437.
cumbrances erected by himself, and

not to those of the vendor or any one
prior to him in the chain of title;
Johns. 106
Kellog v. Wood, 4 Paige, (N. Y.)

614 Cole r. Lee, 80 Maine, 392.
;
The
office
of these covenants,
when they
is
Knickerbacker v. Killmore, 9
and see Calvert v. So-
bright,
Eng.
15
Beavan, 156;
Law &
follow in express grant,

not to give anything, out to assist,
further and support, being as a wall

or monument about it, and therefore
cannot be understood
to
exceed that
S.
C. 15
Eq. R. 125, cited infra,
p. 532.
Blanchard
Hobart, 278.
2 u
ing, (Mass.) 67
v.
;
Brooks, 12 Pickersee the language- of
the Court, cited supra, p. 419.

So,
in the late case in Kentucky, of
Grimes
r.
Redmon,
14
B. Monroe,
236, where there was an exchange

of land, the Court said, " Although

same
State, the conveyance
interest in
and
to
was of "
Tiffany's Ferry,
all
my
right, title
and
and the boat which
built the last season, and now use in carrying on the ferry,
and all the estate, land and buildings standing thereon, situate and being in Northfield, as the same is now occupied
and improved by me, and I do covenant thaj I am the lawful owner and possessor of the before-granted premises, and
have in me good right, &c., to give, grant and confirm the
" the
beforesame," followed by a general warranty of
it is
true that the deed of Bates eon-
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
tains a
quantity for quantity, we perceive at once that the general warlost,
ranty contained in each deed is qualand restricted, both by the nature
ified
of the transaction as an exchange, and

by the express stipulation of the other
from recovering merely on the ground

that a better title than that which
passed by his deed had descended to
deed, so as to make the lawful eviction

of either party from the land received
them from another ancestor, yet
by him an exception
as
this
deed shows explicitly that it is

made in consequence and in consid-
to the general
terms of the warranty, and thus to
free him in such case from the estop-
eration of an exchange of lands, of

which it is a part, and in fact the
pel which might otherwise prevent

him from reclaiming the land which
consummation, as it is not only the

implied law of such a transaction, but
upon comparison of the reciprocal
In
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 transaction that if either party shall lose
by a better claim the land which he
he had
conveyed with warranty."
Hurd
v.
Gushing, 7 Pickering,
(Mass.) 169, where a tenant for life
" all his
title and in-
conveyed
right,
"in the land with a covenant
that he was seized in fee, it was held
terest
that only the life estate passed, for

the covenant could not enlarge the
given in exchange for it, while by

the express stipulations of these parties he who has not lost is bound to
(Seymor's case, 10 Coke, 97,

and see supra, p. 437.) So, where in
Corbin y. Healy, 20 Pickering,(Mass.)
514, one granted land to his daughter " and the heirs of her body, to
have and hold the same to her and
her heirs forever," and covenanted
to warrant and defend the same to
her and her heirs, it was held that
neither the Jiabendwn nor the war-
restore and re-convey the land which

he has received, to the party who has
ranty could make the estate other

than an estate tail.
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 exchange, the party thus losing may
immediately enter upon the land
estate
528
granted premises."
offered as a witness
The grantor
in this
support of the
in
was objected
HOW COVENANTS
conveyance being
in favor of an
title
on the ground of his liability on

these covenants, but the Court held that the covenant was
alienee,
to,
by the previous context of the deed, and conse1

So, in a more
quently, that the witness was competent.
restrained
Allen
v.
Holton, 20 Pickering,
"
The
objection would
be well maintained," said Wilde, J.,
(Mass.) 463.
ate in a different county from those

in which the lands intended to be
who
conveyed were situate,) and that it

was more than probable, that the
allowed
drawer, by mistake, omitted some

words in the sweeping clause. Whatever may be thought of the intention

" if a literal construction of
Court,
covenant
of warranty could be
the
without
reference
the
to
other parts of the deed. But every

deed is to be construed according to
the intention of the parties, as manifested by the entire instrument, alit may not comport with the
of the parties in that case, we think

the intention as to the extent of the
grant in the present case,
suffi-
is
The
grantor conveys
his own title only, and all the subsequent covenants have reference to
ciently plain.
though
language of a particular part of it.
Thus a recital or a preamble in a deed
may qualify the generality of the words
the grant,
limited by
of a covenant or other parts of a deed.
intention of the parties cannot,
4 Cruise's Dig.
be reasonably doubted, and

the words of the covenants are to be
The
case of
tit.
32,
Moore
v.
Deed,
c.
23,
8.
Magrath, Cow-
a strong case to show to

what extent a Court may go in qualifying and even in rejecting a particuper,
9,
is
and are
That
it.
and
was the
qualified
this
we
think,
so construed as to effectuate that intention."
lar clause in a deed, in order to effec-
So, where the obvious meaning of

the covenants renders it necessary,
tuate the intention of the parties. In

that case, the lands intended to be
mean
granted by a deed of settlement,

were particularly named in the preamble, and were afterwards minutely
described in the premises, and then
followed a sweeping clause purporting to convey, all other the donor's
'
land, tenements,
in
Ireland.'
and hereditaments
And
the
Court
held
that nothing passed by this

sweeping
clause; the Court being of opinion,
from the words of the preamble, that
tin'
donor did not intend
his paternal estate
to include
(which was
situ-
Courts will construe

another, as
is
in wills, as where, in
one word to
constantly done
Sanders
v.
Betts,
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
7
or under him, the said party of the

second part," the plaintiff urged that
all these words must be rejected as
being repugnant to the preceding

But the Court held that
matter.
second had been inadvertently used

instead of Jirtt, and construed the
covenant as being a limited one only.

was of "
recent case, where the grant

interest in
and
Street, in
Marhlehead, and
all
my
and
right, title
of real estate situate in Green
to that parcel
is
bounded," &c., followed by
unlimited covenants for seizin,
good right to convey, against

incuinbrances, and of warranty, it was held that these covenants were limited merely to the right and title of the
grantor, whatever that might be.
may, however, be observed, that inasmuch as all conveyances taking effect under the statute of uses transfer no
It
more than
the estate of the party, such a course of decision,

carried
out, would seem to restrain all general
strictly
covenants for title, in such conveyances, to the acts of the
if
This, however, would of course render such cov-
vendor.
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
l
and
Sweet
irresistibly
appears on the face of the instru-
Brown, 12 Metcalf,
v.
"The warranty
175.
is
of
(Mass.)
the premises which were granted and
conveyed by the deed. But that was
'all
and
right, title and interest in

to that parcel of real estate situ-
my
ate,' etc.
It
was not a grant of cer-
tain land, in general terms, but of his

title and interest in such land, and
this, particularly
and
fully expressed,
The warranty must be taken

limited sense.
to his title
and
It
in
must be restricted
interest.
nant here attaches
The
cove-
to the estate
and
and
not a general covenant of warranty of the
interest conveyed,
is
whole parcel, particularly described

Such con-
by metes and bounds.
struction will reconcile all parts of

the deed, and give effect to each,"
45
and the cases of Blanchard v. Brooks

and Allen v. Holton, supra, were then
cited and approved,
Wyman v. Harman's Devisees, 5
Grattan, (Va.) 157, was a very clear
case.
The conveyance was of " all
claims in and to the Curran Place,
which was conveyed to Curran by
Daniel Barman, senior," and the
covenant was " the said Harman and
wife, for themselves and their heirs,
the said right as it was invested in
Daniel Harman, to the said John and
his heirs, against themselves and their
heirs will warrant and defend
it is
;
fully
understood
if said title
should
prove insufficient in law or equity,

the said Wyman and heirs is to have
no recourse, he knowing the whole
circumstance."
HOW COVENANTS
530
1
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
inent.
"
meaning and intending by this deed to convey all

right, title and interest in and to lots numbered three
words,
my
and
six,
flats," it
and my undivided portion of the aforementioned

was held that the general covenants for title which
the deed contained were not restricted merely to the interest

2
So in a late case in Vermont, where the
of the grantor.
1
See and consider
Jackson
v.
Cowen, (N. Y.) 271.

That case decided that where a deed
Hoffman,
plaintiffs do, to some extent,

sanction the views contended for by
the
their counsel as to the limitation of
contained a recital of the premises

being incumbered by a mortgage, fol-
the covenants in such cases. It seems
lowed by unlimited covenants, the

mortgage was excepted from their
Such a doctrine seems
operation.
very questionable (see Keith v. Day,
to consider particularly the effect of
15 Verm. 660, and supra,
and
it is
p.
always in the power
128,)
of the
mortgage from
to us,
however, that
it is
unnecessary
a covenant of warranty in a deed,

where the only thing described in
the premises as the subject of the
'
the right, title and intergrant, is
'
est
of the grantor, as was the case
Verm. 676, where,
v. Holton, above cited. The

construction of a deed is to be such,
if possible, as to give effect to the in-
after a covenant against incumbran"

ces there was inserted,
except the
tention of the parties, and therefore

where it is a mere conveyance ' of
vendor
to except the
the operation of the covenants, as in
Potter
v.
Taylor, 6
of Allen
amount of a mortgage held by B.
all
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
held that the covenants have no application beyond the words of the
K.,
on which
is
eighteen tons.
2 Ilubbard et al. v. Althorp, 3
u The effect
Cushing, (Mass.) 419.
of covenants of warranty," said Dewey, J., who delivered the opinion,
" attached to a
conveyance merely
of the right,
title
and
interest of the
the
grant
title,,
itself.
of the grantor,'
it
may be
But the present deed
is
one purporting to convey by particular and definite boundaries, various

tracts of land described in the
prem-
of the deed, adding, however, to

the description of the lands, the
ises
words 'meaning and intending by

deed to convey all my right, title
this
and
interest in
and
to lots
numbered
grantor, was somewhat considered in

the cases of Blanchard v. Brooks, 1 2
three and six, &c., and my undivided

portion of the aforementioned Hats
Pickering, 47, and Allen v. Holton,

20 Id. 458 and the cases cited for
the same being subject to each

and all the conditions, covenants ami
'
'
,531
" the
following described land in Colchester,
grant was of
all the land which I own by virtue of a deed, &c., being all
my right and title to the land comprising fifty acres off of
the east of lot No.
in said
7^
town,"
was held
it
that the
covenants were not qualified by the grantor's interest.

deed of
and the
As it seems to us,
division deed.'
this second description was added
rather for fulness and certainty, than
with the view of any limitations as
restrictions contained in the
easily susceptible of a practical
Jabez Hatch,
plication."
J. P. Davis,
to the tracts of land

first
description
numbered three
conveyed
setting
and
six,
the
forth
lots
and the
parcel of flats by their boundaries ;

and the second being adapted to embrace all the interest of the grantor
In Whiting
(Mass.) 434,
v.
it
So
ap-
Dewey, 15 Pickering,
seems to have been
"
thought that if the words
being all
the same lands which the said Benedict
Dewey, deceased, lately owned,"

had been the only words of description used, they would have limited the
general covenants which followed,
but as
in lots
premises were, in the

grant, particularly described by metes
and bounds, the description was held
the
not to limit the covenants.
numbered three and six, and

however bounded. There
might have been also the further
flats,
purpose of introducing the limitation

upon the conveyance, of the conditions
and
restrictions contained
the deeds therein referred to

restrictions
or
conditions
in
which
do
not,
however, affect the question, whether

the covenants are applicable solely
to the actual title of the grantor.
is
true, as
It
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
Mills
v.
Catlin, 22
Vermont,
98.
the principle that the construction is to be upon the entire deed,
Upon
and that one part is to help expound

another, and that every word, if possible, is to have effect and none be
rejected, and all the parts thereof
agree and stand together, we think
it must be held to have been the intention of the parties to grant the
land, and that the habendum in the
deed
is
to hold the land,
and the cov-
enants are, as they import to be, unlimited, and relate to the land and
insure
title
to
it.
But
if,
after all,
we
consider the intention of the parties ambiguous, the rule would be in-
ly restricted, but
and not apparentadded rather for

greater caution, and to guard against
any misrecital, we give effect to the
terposed that the construction in such

case is to be most strongly against
the grantor and in favor of the
general description, rather than to

the explanatory words if there be
grantee, and this to prevent an evasion by the grantor by his use of ob-
any discrepancy, and the general

description be perfect in itself, and
scure and equivocal words." So in

Steiner v. Baughman, 2 Jones, (12
the general words,
532
HOW COVENANTS
1
very recent case in England, on a reference to a Mas" as far as in his
ter, it appeared that a testator,
power lay,
or he lawfully might or could," demised part of certain
in a
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 compensation for her eviction, and that for two reasons ; first, because
it is
clear
on the face of the deed
itself,
that the tes-
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-
tator did not
ing notice that the lessor had no title to grant this lease.
2
If she had, a different consideration would arise ;
and it
Perm. State R.) 106, is to the same
In Cooke v. Founds, 1 Leveffect.
inz, 40, S. C. 1 Keble, 95, the vendor
covenanted that he was seized of a
estate in fee, according to the
indenture made to him by W., of
good
whom he had purchased, and pleaded

an action, in which it was assigned
he was not seized of
a good estate in fee, but he was seized
of as good an estate as W. conveyed to
him, this was held bad on demurrer,
in
for breach, that
" for the covenant
is
absolute,
and
reference to the conveyance by W.,

>.-rviis only to denote the limitation
and quality of the
estate,
and not the
v.
and see
Sebright, 15 Beavan,
case cited as to
this
another point, supra,

2 It
is,
p. 526.
however, well settled on
this
side of the Atlantic, that notice of
an
incumbrance is no defence to an action on general covenants, because if

it had been the intention of the
parties to have excepted it from their
operation, that intention should have
been expressed
p.
128
el
se</.),
would seem that
in
terms (see supra,
and by analogy it
the same rule should
apply to cases of a defective title or

limited interest.
Possibly, however,
a distinction may exist in the case of
(IcIcnsiUrness or indefeasiblencss of
of the
in
title."
Calvert
156,
and it may be observed that

England the question of the pur-
lease,
583
might then be properly said that she could only take such
knew could be granted to

hand, we know that, in practice, a lessee
title
her.
as she
look into the lessor's
title
On
the one
never allowed to
is
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
The words ' as far as he lawfully can,' are imto grant.
plied without their being used.

to grant that which he lawfully can
he cannot mean
these,
man
to assert that,
can only be taken
and by such words as

he
is
not entitled law-
To induce me to construe these

grant such a lease.
words to be an intimation to the lessee that the lessor is not
fully to
do what he professes to do,
I should
require either
or
of
some
doubt, upon
authority,
expression
the face of the lease, that there was a defect as to the title.
entitled to
some express
In the absence of any such authority or expression, I am of

opinion that the defect was not disclosed by these words."
We
for
now
title,
enter upon the consideration of the covenants
implied by statutory enactment.
Although the common law gave no

in the case of a freehold, to
effect
any other
of implied war-
word than
dedi,
ranty
yet such an effect was, in the year 17^7? given to the words
grant, bargain and sell, by the statute of 6 Anne, c. 35?
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, bargain and
sell shall
courts
amount
chaser's notice
is
entirely immaterial.
133.
1
and be construed and adjudged
to,
in all
of judicature, to be express covenants to the bar-
An act
not deemed
See supra,
so
East Riding of the County of York
p.
and
in Kingston-upon-Hull,
rendering
which provided
for a gen-
eral registering of deeds, etc., in the
45*
more complete
prior provisions for the
of York.
and
for
similar
West Riding
531
gainee,
his
heirs
himself, his
heirs,
HOW COVENANTS
and assigns, from the bargainer for

executors and administrators, that the
was at the
bargainer, notwithstanding any act done by him,
of
the
seized
of
hereditasuch
time of the execution
deed,
ments and premises thereby granted, bargained and sold, of
an indefeasible estate in fee-simple, free from all incumbrances (rent and services due to the lord of the fee only
thereof against the barexcepted), and for quiet enjoyment
gainor, his heirs and assigns, and all claiming under him,
and also for further assurance thereof to be made by the
bargainer, his heirs and assigns, and all claiming under

unless the same shall be restrained and limited by ex;
him
in such deed ; and that the

press particular words contained
and assigns
bargainee, his heirs, executors, administrators
to
be
in
action
brought,
any
respectively, shall and may,
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 interpretation.
But
the statute
was of very
limited local application, and
those parts of the country over which it

was
but
of little practical use, as the modes of
extended,
probably even
in
conveyance there employed were^ generally deeds of lease

It will be perceived that tho
covenants, so created, are carefully
limited to the acts of the grantor and
The
those claiming under him.
l
words " notwithstanding any act done

by him," are the proper restraining
words of the covenants for seizin and
against incumbrances
19,111.
and
Those
see supra, pp.
for quiet
enjoyment
for further assurance are also ex-
pressly limited in the usual
manner;
supra, p. 164. It is difficult to perceive how the covenants for title
should be more limited, and yet to

prevent the possibility of misconception as to a covenantor being bound
even
to this
limited extent
against
provided that even tlu-so

covenants can be restrained and liinited by express particular words in
his will,
it is
the deed,
FOR TITLE MAY BE LIMITED OR QUALIFIED,
535
and might not, therefore, come within the letter

of the enactment and the covenants for title continued to
and
release,
increase in luxuriance of growth, until their length, which

brought with them a corresponding increase of expense, was
found to he oppressively severe. 1

But until 184-5, Parliament did not interfere.
In that
&
9 Viet. c. 113, one

year was passed the statute of 8
of the series of those important enactments which are genthe name of " The Real
known
Acts."
by
erally
Its object
Property
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
2
a great extent intended for this purpose.
Sec
the
interesting
evidence
given by Mr. John Tyrrell, before

the Heal Property Commissioners
1829 (1 Real Property Report,
in
507, etc.).
party
but
it
shall not
any such deed

number."
in
The second
be necessary
any such
to insert
section declares that
every such deed shall, unless exception be specially made, be construed
The act of 8 & 9 Yict. c. 119, is

too long to be here inserted at length.
Its substance, however, may be thus
to include all houses, out-houses, edi-
declares that
as all reversions, remainders, rents,
given.
Its first section
fices,
barns, stables,
etc., etc., as
well
"whenever any party to any deed

made according to the forms set forth
profits, etc.
in the first schedule to this act, or to
for the
any other deed which
any bill for preparing such a deed,

remuneration is to be estimated not
pressed to be
made
shall
be ex-
in pursuance of
this act, or referring thereto, shall
em-
ploy in any such deed respectively

any of the forms of words contained
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 inserted in such deed the form of words
contained in Column
II.
of the same
and distinguished by the

same number as is annexed to the
form of words employed by such
schedule,
The subsequent
stamp duty
sections provide
that in taxing
its length, but the skill,

labor and responsibility incurred
that a deed failing to take effect un-
according to
der
this act, shall as far as possible
held valid and effectual
word lands
holds,
shall
corporeal
extend
and
be
that the
to
all
free-
incorporeal
hereditaments and copyholds capable of passing by deed

and that
;
every word importing the singular

number only, shall extend and be applied to several persons or things as
well as one, and the converse, and
536
HOW COVENANTS
But
the effect intended by Parliament has not been pro" The use of these forms in
preference to the
ordinary instrument of assurance," says a recent text wri-
duced.
"
not obligatory or usual, nor does it appear to be

Such enactments are either unnecessary or misexpedient.
is
ter,
unnecessary, if the parliamentary form would, if

unauthorized by Parliament, merely express in fewer words
the meaning of the forms in ordinary use ; and mischievous,
chievous
that the schedules are to be part of

the act, which was to take effect on
the 1st of October, 1845, and not to
extend
The
to Scotland.
first
COLUMN
conveyance
is
simply
into
men
said (covenantor)
covenants with the said
(covenantee.)
grant."
is
divided
two columns, of which a
speci-
here given
is
COLUMN
I.
The
"
The second schedule
sched-
ule referred to comprises merely a

short form of a deed, not unlike the
1.
ordinary deeds of bargain and sale

used in this country- the word of
II.
And
the said covenantor doth hereby for

himself, his heirs, executors, and administrators, covenant, promise and agree with and to
1.
the said covenantee, his heirs and assigns, in
manner
2.
to
That he has the
convey the
said
ri^ht
lands
the said (covenantee)

notwithstanding any act of
the said covenantor.
to
2.
following, (that is to say.)

for and notwithstanding
That
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
and every of their appurtenances, unto
their
the said covenantee, in manner aforesaid, and

according to the true intent and meaning of
Then
these presents.
Dart on
follow similar forms for ex-
pressing the covenants for quiet en-
joyment, against incumbrances, and

for further assurance, for
duction of
title
deeds,
and
the prothat the
grantor has done no act to incumbcr.
The Revised
Statutes of Virginia
have concisely adopted

See infra, p. 543.
this statute.
247.
Vendors and Purchasers,
Lord
St. Leonards, too, in his

abridgment of his former work
on Vendors, as well as in his last edition of the complete work, passes
over the statute of 8 & 9 Viet, with
See also a
the most casual notice.
late
severe criticism on
9 Jurist,
Tart
II.
this statute
333, 334.
in

if
an unnatural and secondary meaning
to
words which are prima facie
the effect
is
clear
is
and
537
given by statute
intelligible
to increase the difficulty of legal
documents
for
to
the unprofessional reader."
But although
statutes giving to the granting
words of a
the title are

conveyance the effect of certain covenants for
but little regarded in England, yet similar statutes, for the
Anne, have been passed

country, and are considered as of
Within eight years after the statute
most part copied from the

in
many
parts of this
practical importance.
statute of
of Anne, when Pennsylvania was still an infant province,

"*
" an Act for
was
acknowledging and recording of deeds
from
of
which
was
sixth
section
the
evidently copied
passed,
the English statute, though the attempt at greater brevity
has caused it to be less clear.
2 "
all deeds to be recorded in
It declared that
pursuance
of this act, whereby any estate of inheritance in fee simple

shall hereafter be limited to the grantee and his heirs, the
words grant, bargain,
sell,
be adjudged an express
shall
covenant to the grantee, his heirs and assigns, to wit that

the grantee was seized of an indefeasible estate in fee-sim:
ple,
incumbrances done or suffered from the
freed from
grantor (excepting the rents and services due to the lord of

the fee), as also for quiet enjoyment against the grantor, his
by express words contained
heirs and assigns, unless limited
such deed, and that the grantee, his heirs, executors,
in
administrators
breaches, as
1
if
and
assigns,
may
in
any
action,
assign
3
such covenants were expressly inserted."
Act of 28th of May, 1715.

" in " was
probably
The word
to
leases at rack-rent,
or to leases
omitted accidentally in transcribing
not exceeding one-and-twenty years,

where the actual possession goes with
this section.
the lease."
end
The
following proviso is at the

"
of this section
Provided al:
ways, that this act shall not extend
This proviso has no par-
ticular connection with this section

if
it
had,
section
it
is
would be
insensible, as the
limited in application to
538
HOW COVENANTS
be observed, that apart from mere verbal altera-
It will
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
supreme or provincial court of law

which
equity,
(although repealed in Council four years
would seem to negative this ground for the omisafter,)
the Acts for erecting a
and
sion.
No
doubt whatever could have arisen that
the cove-
all
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
will be perceived that its author
nant, that for seizin,
has made the
statute, it
first
cove-
an unlimited one, while the subsequent
The
covenants are restrained to the acts of the grantor.
to whether the latter coveas
would
hence
arise
question
nants restrained the former.
Were
it
to arise
upon express
covenants introduced in a deed, there might, perhaps, be
deeds " whereby any estate of inher-
as appears
itance in fee-simple "is conveyed, and

the proviso would, according to this
section of the statute of
construction,
exempt
leases at rack-
which the section never

was intended to extend. The pro-
rent, &c., to
viso
is,
duced.
therefore,
It
refers,
awkwardly
intro-
however, to the
prior recording provisions of the act,
from looking at the 29th

Anne, from
which the clause

however, a
little
is
copied.
It is,
remarkable, that in
States in which this particular

section of the Pennsylvania statute
has been adopted, the proviso has
many
been
also inserted,

little
difficulty in holding-,
539
under the authority of cases which
1
have been already referred to, that the covenant for seizin
stood by itself, an unlimited covenant, and unqualified by
those which followed
But where
it.
the construction of a statute, there
the question
is
upon
every reason why the

most limited interpretation should be given to covenants
is
which every man is, as it were, obliged to enter into, when

the words of implication are, as in Pennsylvania, those generally
employed
The
to.
conveyancing.
of Bender
case
referred
in
v.
Tilghman, Ch.
Fromberger has been already

J., there mentioned that it had
been the general understanding of the profession, that the

words " grant, bargain and sell" imported a general warranty, and, acting on this ground, he held that this general
1
See supra, p. 512.

In the first place, the covenants
held to apply to the case of a conveyance made in execution of a
are implied, and the danger arising

from such covenants has been often
power, on the ground that such vendors might not be grantors within the
referred to by Courts in strong terms.
meaning of the
In the second place, there is a different technical rule of construction
late case of
called in to the interpretation of such

a statute and while, with respect to
;
is, that the words are

be taken most strongly against the
deeds, the rule

to
party using them, in the construction

of statutes the rule is equally familliar,
the
strictly.
no
"
in derogation of
are to be construed
that statutes
common law
Now
effect of
the
common law gave
warranty
grant, bargain
and
to the words,
sell,"
and
it
may
not unreasonably be said that a statute altering the common law in this
respect should,
when
it is
doubtfully
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
and in the
Brown, 3 Casey, (27 Penn. State R.) 134, it was
expressly decided that the words
"
"
grant, bargain and sell when used
by executors in a deed conveying
statute
Shontz
v.
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 unsoundness 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.
54O
HOW COVENANTS
warranty could not be restrained by a subsequent special

warranty and this, as a general proposition, was unquesBut in the subsequent case of Gratz v.
tionably correct.
;
1
Ewalt, the construction of this statute was carefully con-
sidered,
and
it
was held
that the
first
covenant,
which,
would be unlimited, must be taken
in
standing by
connection with the subsequent one against incumbrances,
which is limited, and, consequently, that none of the coveitself,
nants implied by the statute were to be construed as extenda

ing beyond the acts of the covenantor ; and the construc1
our law.
Binney, 98.
The
British statute
makes
The meaning," said Tilghman,

Ch. J., who delivered the opinion of
use of more words, and the intention

is more clearly
expressed. It de-
the Court, " is not clearly expressed

but I take it to be a covenant that
and
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
For
if it
any act of the grantor.
was intended that the cove-
nant should be, that the grantor was

seized of an estate absolutely inde-
was improper
add the
subsequent words, 'freed from incumbrance done or suffered by him,' these
feasible, it
to
clares that the words, grant, bargain

sell, shall amount to a covenant
that the
bargainer, notwithstanding
done by him, was, at the time

of the execution of the deed, seized
any
act
of an indefeasible estate in fee-sim-
Our law seems intended
ple, &c.
to
express the substance of the British

statute in fewer words, and has fallen
into a degree of obscurity
often the consequence of
brevity.
reason
which
is
attempting
I can conceive no good
why
our
should
legislature
went before. The words, seized of

an indefeasible estate in fee-simple,'
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-
are to be considered, therefore, as

not standing alone, but in connection
ing far more extensive than their

usual import, and which must be un-
with the words next following,
known
words, instead of adding strength,

would only serve to weaken what
'
freed
to all but professional
men.
from incumbrances done or suffered

from the grantor.' I am the more
convinced that this was the intention
It
of the legislature, by comparing the

expressions in this act, with the 30th
be acany further warranty, if it was intended by the parties, .it was best to leave them to thr
section of the statute of 6th
Anne,
which contains a provision on
the same subject, and was evidently
c.
85,
in the eye of the persons
who framed
might be very well to guard against

secret acts of the grantor, with whii-li
none but himself and those interested
in
keeping the
quainted.
usual
As
secret, could
for
manner of expressing
terms."
Had
the case of
it
in plain
Bender
v.
541
been departed from in Pennsyl2

and it is said by Chancellor Kent, that " by the
vania
decision in Gratz v. Ewalt, the words of the statute are
tion thus given has never

l
divested of
apply
all
dangerous tendency, and that
it
will
equally
same statutory language in other States."

are now to consider in what States there are simi-
to the
We
and the construction which they have there
lar provisions,
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
in
Statutes declare that no " covenant shall be
any
implied
conveyance of real estate, whether such conveyance contain

3
but it is held in that State that
special covenants or not,"
this provision does not
4
extend to leases.
Where
Fromberger, 4 Dallas, 43G, been pre-
a construction.
sented after
has done everything on his part to

entitle him to the estate, the articles
this
its
determination,
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 general
l
Voneida, 11
v.
Serg.
&
Whitehill v. Gotwalt,
Rawle, 111
3 Penn. 11. 323
Seitzinger u. WeaIn this last case
ver, 1 Rawle, 377.
;
was held that the statute applied

not only to deeds executed, but to
articles of agreement for the sale of
it
real
estate.
"It
is
are an equitable conveyance of the

and, therefore, fall within the
title,
letter, as well as the spirit
insisted,"
said
a sound price has been paid for an
unsound
title,
brances was included here in the
covenant for
sentence
is,
seizin, since the
"But
a covenant can be implied, is applicable only to conveyances executed.
and delivered."
2 4 Com. 474.
express provision to that effect

itself; and there
found in the act
certainly
is
nothing in the nature of

to call for such
an executory contract
46
no objection, on
I see
ground, to its being recovered

back." The covenant against incum-
this
nant of seizin
No
Where
liberally for his protection.
Gibson, Ch. J., who delivered the

" that the
act
opinion of the Court,
of Assembly, by force of which such
is
of the en-
acting clause. He sometimes obtains

no other title, and for that reason
alone, the law ought to be construed
see supra, p. 515.
Funk
the vendee
is
next
this special
cove-
broken by the
exist-
ence of an incumbrance created by

the vendor, the instant
Fart
2,
art.
4,
Stats. 22.
4
Sujtra, p. 478.
140
sealed
is
it
Rev.
HOW COVENANTS
provision of the New York Revised Statutes has

1
also been copied into those of Indiana, and Michigan,
The
though in the former, while a territory, an act passed

1804* was exactly copied from the Pennsylvania statute.
Nor do any
seem
title
North Carolina, 3 South
Maryland,
Florida,
covenants for
to be implied
the present day in the States of
at
statute
Ohio,
Louisiana,
in
New
by
Jersey,
Carolina,
Georgia,
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 171-5? was passed, in the year 174<2, and its
with that statute. 6 The fifth section
fifth section is identical
of the more recent act of February 7? 1 829? was, however,

much more concise, viz. " Where there is no express cove:
nant in a deed, the words

1
Rev.
Rev.
grant, bargain and
Stats, of 1843, c. 28,
21.
statute.
Stats, of 1846, c. 65,
5.
Another
3 Rickets v.
343
'
Powell
Dickens,
Murphey,
Lyles, Id. 348.

4 In 'South
Carolina, an act passed
;
v.
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

not be so construed as to oblige persons to insert the clause of warranty,
nor to prevent them from inserting

such clauses as should be agreed
upon;
see, as^to the construction of
Glenn, 9 Richardson's Law, 374, Faries v. Smith,

1 1 Id. 81
In Texas, the act of Feb-
this statute,
Jeter
v.
ruary 5, 1840, is to the same effect.

5 In
Ohio, an act passed August 1,
1795, called "A law establishing tin;
Recorder's Oflicc," was nearly or exactly copied from the Pennsylvania
shall,
sell,
was afterwards repealed.

passed January 2, 1815,
It
act,
gave a right of action in all cases

where a deed contained a covenant
of general warranty, in like
manner
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,
as if the
1824, and
the act of
cisions
was entirely repealed by
March
force, are Innes v.
389
Day
v.
The
12, 1831.
under these
de-
statutes while in
Agnew,
Brown, 2
Id.
346
Ohio,
;
Rob-
Neal, 3 Id. 525. The statute of 1815 seems not to have been
inson
v.
very clearly expressed or distinctly

understood;
See note to
6 1
Day
p.
v.
Brown, supra.
274 of statute of
S-J
Booth's Edition of IM.nvaie
Laws, 222.
54-3
unless specially restrained, imply a special warranty against

"
a grantor and his heirs, and all claiming under him ;

1
and in the Revised Statutes of 1852, the same phraseology
has heen adopted.
In Virginia, the Revised Statutes of 1849, have heen, as
to this subject, abridged and adapted from the statute of
&9 Viet.
c.
119.
Chap. 83, 3, p. 266.

Rev. Stats, of Virginia, (1849,)
33, c. 117.
tit.
"
9.
"
The words
12.
warranty,' in
shall
any deed,
When
a deed uses the words
the said
covenants,' such covenant shall have the same effect as if
it was
expressed to be by the cove1
'
with general
part of
the granting
be deemed
be a
to
covenant by the grantor 'that he

will warrant generally the property
hereby conveyed.' The words with
'
nantor, for himself, his heirs, personal
special warranty,' in the granting part

of any deed, shall be deemed to be a
representatives and assigns, and shall

be deemed to be with the covenantee,
covenant by the grantor that he will

warrant specially the property hereby
his heirs, personal representatives and
conveyed.'
'
covenant by the grantor

that he will warrant gen-
covenant by the grant"13.

or in a deed for land, 'that he has
the right to convey the same to the
erally the property hereby conveyed,'

shall have the same effect as if the
grantee,' shall have the same effect

as if the grantor had covenanted that
grantor had covenanted that he, his
he has good
assigns.
"10. A
in
a deed,
'
and personal representatives,

forever warrant and defend the
right, full
power, and
said property unto the grantee, his
absolute authority to convey the said

land, with all the buildings thereon,
and the privileges and appurtenances
personal representatives and

and de-
thereto belonging, unto the grantee,

in the manner in which the same is
heirs
will
heirs,
assigns, against the claims
mands
"
of
all
persons whomsoever.
11.
'
covenant by any such

that he will warrant spe-
grantor,
cially the property hereby conveyed,'
shall have the same effect as if the
grantor had covenanted that he, his
and personal representatives,

forever warrant and defend the
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
'
of the
quiet possession
shall
have as much
heirs
covenanted
will
heirs
said property unto the grantee, his

heirs, personal
representatives and
and de-
assigns, against the claims
mands of
the grantor, and all persons claiming or to claim by, through,

or under him.
that
said
land,'
effect as if
the
grantee,
he
his
and assigns, might, at any and

times thereafter, peaceably and
quietly enter upon and have, hold
all
and enjoy, the land conveyed by the

deed or intended so to be, with all
the buildings thereon, and the privithereto beleges and appurtenances

In
was
HOW COVENANTS
provision in the Revised Statutes of 1839

copied literally from the section of the Pennsylvania
Illinois, the
and
statute,
c.
184-5,
24.
was re-enacted
it
Revised Statutes of
in the
In Alabama, the 20th section of the act of 4th March,
1805, was copied exactly from the Pennsylvania statute,

and adopted in the Revised Statutes of 1S3, 2 and in Roebuck v. Dupuy, 3 the decision in Gratz v. Ewalt was approved and applied to
In a subsequent case, 4 the words
it.
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
at
common
the
and
which
altered the
law,
statute,
warranty
and receive and take the
longing,
for the better,
more perfectly and ab-
rent and profits thereof to and for

his and their use and benefit, with-
solutely conveying and assuring the

said lands and premises, hereby con-
out any eviction, interruption, suit,

claim or demand whatever.
If to
veyed or intended
grantee,
such covenant there be added
manner
from
shall
all
'
free
incumbrances,' these words

effect as the words
have as much
his
so to be unto the
and
heirs
aforesaid, as
his heirs or assigns, his or their

sel in the law, shall be
devised, advised or required.

"
16.
covenant
charged, or otherwise by the said

grantor or his heirs saved harmless
grantor,
and indemnified of, from and against

any and every charge and incumbrance whatever.'
"15. A
covenant by any such
grantor that he will execute such further assurances of the said lands as
'
have the same
coun-
reasonably
'and that freely and absolutely acand forever dis-
quitted, exonerated,
in
assigns,
by the grantee,
by any such
no act to
that he has done
'
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 pivmises conveyed or intended so
any part thereof, are, or
to be, or
will
be,
covenanted that he, the
charged, affected or inonutbeied in

title, estate or otherwise." Rev. Stats,
grantor, his heirs or personal represonS will at any time, upon any rea-
of Virginia, 1849.
1 For the effect of this statute see
sonable request, at the charge of the

grantee, his heirs or assigns, do, exe-
Mosely
may be
requisite,' shall
effect as if he
cute, or cause to be
all
such further
acts,
done or executed,
deeds and things,
v.
Hunter, 15 Missouri, 322.
2 Tit.
18, c. 1,
3 2
<
20.
Alabama, 541.
Gee
v.
Pharr, 5 Alabama, 187.
common
its letter,
54-5
law, should not have its meaning stretched beyond

except in cases of public utility, when the object
of the act appeared larger than the enacting words, which,

The statute not only
it was said, was not then the case.
altered the
common
law, but, inasmuch as
it
created cove-
nants for the party conveying, by mere implication, its tendency might be regarded as somewhat dangerous, and as
calculated to entrap the ignorant and unwary ; and the same
principle
was applied
a more recent case. 1
in
In Mississippi, the section of the Pennsylvania statute

was copied in the statutes of 1832, 2 and re-enacted in the
Revised Statutes
of
gave no opinion as
1S40. 3
In a
late
case,
to the first of these implied
the Court
covenants
being limited to the acts of the grantor (though Gratz v.

Ewalt was cited in the argument), but decided the case on
ground that the express covenant of warranty which the
the
deed contained did away with the implied covenants. "The

covenants raised by law from the use of particular words in
1
Clanch
164.
v.
When
McCay,
Allen,
12
Alabama,
said in Andrews v.
8 Id. 928, that " the statute
it is
covenant was broken when the deed
was made, and the general covenant of warranty (which was also in
the deed) by the eviction under the
sale," it is presumed the Court did
not
mean
to
say that
the implied
covenant for quiet enjoyment was

broken as soon as made, so as (in the
absence of a covenant of warranty)
to deprive an assignee of a remedy
on the statutory covenants, on the
ground of its being a chose in action,

and therefore not assignable, see
supra, p. 342 et seq. This is here
mentioned because many of the cases
say, generally, in actions on the implied covenant for seizin, and against
incumbrances,
" this
was broken as
46*
soon as made," but no case will be

found in which this has been said of
the implied covenant for quiet enjoyment, when that covenant was the
one sued upon,

2 13th
June, 1832,
3
c.
24,
32.
32.
Chap. 34,
4 Weems v.
McGaughan, 7 Smedes
& Marsh. 427, see also Bush r. Cooper,
26 Mississippi, 599.
5 This is correct
when
applied to
the case of covenants contained in a

for a term of years.
In
such cases, the covenant implied from
the words of leasing is annulled by
the insertion of an express cove-
conveyance
nant; Nokes's case, 4 Coke, 80
Line
Stephenson, 5 Bing. N. C., see

supra, p. 483 but this was not the
v.
law as
hold.
to the
conveyance of a free-
516
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,
deny to a purchaser the benefit of any covenant for seizin

which the statute gives him, when he has also received an
to
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 1S45, 1 declare that
" the
words grant, bargain and sell, in all conveyances in
which any estate of inheritance in fee-simple is limited, shall,
unless restrained by express terms contained in such
conveyances, be construed to be the following express covenants on
the part of the grantor for himself and his heirs to the grantee, his heirs and assigns.
First, that the grantor was at the
time of the execution of such conveyance seized of an indefeasible estate in

fee-simple in the real estate thereby granted.
Second, that such real estate was, at the time of the execution
of such conveyance, free from incumbrances done or suffered

Third,
by the grantor, or any person claiming under him.
for further assurance of such real estate to be made by the
grantor and his heirs to the grantee and his heirs and assigns, and may be sued upon in the same manner as if such
covenants were
expressly inserted
There were former

1
acts passed in 1S04<
the
conveyance."
and 1825, 2 from
seized of an indefeasible estate in fee-
Page 221.
In the act of 1825, it was declared that " the words grant, bargain
and sell, shall be adjudged express

covenants for the bargainee or the
grantee, his heirs and assigns, for the
bargainor or grantor for himself, his
heirs, assigns
in
and administrators, that
the bargainer or grantor was, at the

time of the execution of such deed,
and to the lands, tenements

and hereditaments thereby granted,
bargained and sold, and that the
same was then free from incumbrances done or suffered from the barasgainor or grantor, his heirs and
under him;
signs, and all claiming
simple, in
and
also for further assurance thi'ir-
of, to
be made by the bargainer or

which
this
was
a limited one.
The second of
altered.
The
first
these covenants
and third are general.
is
In a re-
cent case, 1 the Court, after a careful review of the English

and
authorities, held that these three covenants
Pennsylvania
distinct and independent.
The second may he
were
fluous, hut
it
does not therefore limit the
and not inconsistent with
first,
2
it.
super-
which
Of
is in-
the
these,
dependent of,
covenant for further assurance was, at one time, held to be
the only one which could he taken advantage of by an as8
signee of the land, but very recent decisions have gone so
far as to hold that all the covenants thus implied
run with
4
the land to the successive owners thereof.
So
"
in
Iowa, the Revised Statutes
grant, bargain and
strained
declare that the words
sell," in all conveyances, shall, unless re-
" be construed to be the

following
First, that the grantor was, at the time
by express words,
express covenants
of the execution of such conveyance, seized of an indefeasible estate in fee-simple, in the real estate thereby granted.
:
Second, that such real estate was, at the time of the execuof such conveyance, free from incumbrance done or
tion
suffered
by the grantor, or any person claiming under him.
Third, for further assurance of such real estate to be

grantor, his heirs and assigns, unless
the same be restrained," &c. The
act of
1804 was identical with the
Pennsylvania statute.
1 Alexander v.
Schreiber, 10 Missouri, 461.
2 See
ble,
*
accordingly, Collier v. Gam10 Missouri, 471.

Collier v. Gamble. In Shelton u.
Pease, 10 Missouri, 473, a purchaser

took an express general covenant to
warrant and defend against
and
particularly against a
all titles,
certain
mortgage which had been executed

lie paid off this
by his grantor.
mortgage and then brought suit upon
his covenants.
It was,
made
however, held
by the Court that there was no breach

of the covenant of warranty, and
the mortgage could not come
scope of the statutory
covenant against incumbrances, bethat
within the
cause the grantor having covenanted
warrant and defend against the

mortgage, he could not be supposed
to
to
mean
to
covenant against
its
ex-
istence.
4
Dickson
v.
151, (supra, p. 341)
Chambers
Smith, Id. 174 Armstrong

26 Id. 520, supra, p. 193.
;
Page 204.
v.
v.
Darby,
IMPLIED COVENANTS, ETC.
54*8
by
the grantor
assigns, and
and
may
his heirs to the grantee, his heirs
and
he sued upon in the same manner as
if
such covenants were expressly inserted in the conveyance."

In a recent case, 1 it was considered as beyond question, that
the covenants thus implied were general or absolute, and it
was moreover held, 2 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 covenants.
declared that " the words, grant, barshall be an express covenant to the grantee,
In Arkansas,
gain, and
his heirs
feasible
sell,
it
is
and assigns, that the grantor is seized of an indeestate in fee-simple, free from incumbrances done or
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 whatsoThe
ever, unless limited by express words in such deed.
grantee, his heirs or assigns, may in such action assign
3
breaches as if such covenants were expressly inserted."
1
Brown
r.
525, see also
Tomlinson, 2 Greene,
Funk
v.
Cresswell, 5
Clarke, 84.
2
Upon the authority of Hesse v.
Stevenson, Gainsforth v. Griffith,
Smith
v.
Compton, and Howell
v.
Richards, cited supra, p. 501 et seq.

and of Alexander v. Schreiber,
supra, p. 547.
Rev Stat. of 1848, p. 264 Davis

Tarwater, 15 Arkansas, 289.
3
v.
WHAT COVENANTS FOR
CHAPTER
WHAT COVENANTS FOR
TITLE, ETC.
XI.
TITLE A PURCHASER HAS A RIGHT
TO EXPECT. 1
IT was not until towards the close of the seventeenth
century in England, that with the comparative cessation of
warfare, and the steady improvement and consequent
increase in value of real estate, the law of vendor and purcivil
chaser hegan to assume that form which

stantially preserved ; and as land became
has since sub-
more
the subject
were more readily yielded

the examination of the purchaser.
But, however rigid
of transfer,
to
muniments of
it
its
title
examination, and however willing courts of law and

equity might be to carry out the principle, which, before the
this
consummation of the
a
to
title
contract, protects the purchaser's right
clear of defects
and incumbrances, yet, while so

and enforce his right
doing, they also continued to recognize

to covenants for the
title.
The form and
covenants were, however, changed.

1
In England
it
has been held, that
the attorney of a vendor allow him

to enter into an unusual covenant,
without explaining the liability there-
extent of these
Before that time,
Bing. 491
so
vendee
it is
be
said,
it
an attorney
liable for not se-
if
for a
by
he would be entitled from the other

party, Dart on Vendors, 258.
2 "
If," says Lord Eldon in Church
incurred,
he
is
responsible
for
curing to him the covenants to which
consequent loss, notwithstanding the

vendor may, at the time, have been
aware of the fact in respect of which
covenants to
the liability on the covenant

curred, Stannard
v.
will
v.
Jr. 263, "a man

a fee-simple estate*
Brown, 15 Ves.
sell
is
in-
free from all incumbrances,
Ullithornc,
10
no more,
it is
and
<;i\ s
clear that covenant car-
WHAT COVENANTS FOR
550
had
to
not, in general, been
demand and
thought too much for a purchaser
receive covenants
those claiming by
title,
TITLE
that
is,
against the acts of

against the acts of
all
all
but mere trespassers. 1 But when the examination of the

title became a matter of course, and vendors who
brought
their estates into the
which
market were forced
to
comply with
was held
the purchaser had a right

certain rules,
to exact, it was naturally thought unreasonable that he
should receive covenants of so wide a scope, and the extent
it
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
in their
real estate
Those who
First.
own
may be
sell estates
divided into three classes.
of which they are seized
right.
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.
Ministerial vendors, such as sheriffs, marshals,
Third.
&c.
tax-collectors,
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
from each of these
As
classes of vendors.
Vendors who
First.
in their
own
sell estates
and
in the
bosom of it,
the right to proper covenants. Why ?

Because that sort of engagement has
been carried into execua form and mode which alter
in all times
tion in
of which they are seized
right.
a general rule nothing
ries in gremio,
to expect
is
better settled in England,
most materially, substantially
and
importantly, the effect of the mere
conveyance."
l
See supra,
p. 165.
551
A PURCHASER HAS A RIGHT TO EXPECT.
and practice, than that a purchaser

point of authority
has no right to demand from his vendor covenants of greater
own acts. " If a man purchase an
scope than against his
1 "
and -afterwards
estate of inheritance," said Lord Eldon,
both
in
he understood primd facie, that he sells the

estate as he receives it, and the purchaser takes the premises
granted hy him, with covenants against his acts. This seems
sell it, it is to
at first to involve a degree of injustice, hut
it all
depends on
the fact whether the vendor he really putting the purchaser

If he
into the same situation in which he stood himself.
has hought 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
own
and
purchaser will be
protected by the vendor's covenants against an act done by
estate
by
his
But
himself.
of those
act,
in that case the
the defect in his
if
who had
title
depend upon the acts
the estate before him, and he honestly but
ignorantly proposed to another person to stand in his situaWhat is the

tion, neither hardship nor injustice can ensue.
common
course of business in such case
laid before the purchaser's counsel,
An
and though
extent he relies on the vendor's covenants,

attention
how
far
is
the
it is
fore, not
supported by
being misled by the
whether he
what
directed to ascertaining
is
abstract
is
to a certain
still
his chief
the estate,
and
The purchaser, therevendor, makes up his mind
title.
complete his bargain or not ; and, if any

doubt arise on the title, it rests with the vendor to determine
whether he
shall
will satisfy these doubts
extensive.
by covenants more Or
Primd
facie^ therefore, in the conveyance

of an estate of inheritance, we are led to expect no other
less
covenants than those which guard against the acts of the
vendor and his heirs." 2

i
Browning
Pull. 23
v.
Wright, 2 Bos. &

which
for the connection in
these remarks were made, see supra,

p. 493.
See, in accordance with this

view, Church v. Brown, supra, and
two opinions in 2 Powell's Convey-
anemg, 206-209.
The
following re-
WHAT COVENANTS FOR
552
TITLE
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,
There
is,
who
as those
lend
money
are accustomed to require every

1
possible security for its repayment, and to some extent, such

would also seem to be the practice on this side of the At2
It has, moreover, been said that in common leases,
lantic.
the
as
against
not inspected, the lessor should covenant
is
title
persons whomsoever.
all
Where, however,
the vendor does not claim
in the popular signification of the term, that
by purchase,
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
4
the last person who thus claimed by purchase, " and this,"
mark
his
of Mr. Fearne is taken from

" A vendor
Posthumous Works
:
who purchased
the
himself
estate
should covenant only against his own

acts, and the acts of all claiming un-
der him, where the
well de-
title is
duced, and the identity of the lands

to him,
conveyed
and those
sold
by
him, is apparent but if the title of

the vendor is questionable, he should
;
covenant generally
and
if
the lands
Conveyancing, 75. See

Sebright, 15 Beavan, 156,
C. 15 Eng. Law & Eq. R. 125,
3 Barton's
Calvert
S.
v.
supra, p. 532.
4 In the old case of Pool v.
Pool,
" the
1 Chancery Reports, 1 8,
plain-
being ordered to perform his

covenants refused, insisting
that he is not chargeable with his
tiff
father's
father's covenants as heir, the land
being conveyed to him
nor as ex-
conveyed, owing to any alteration in

them or otherwise, do not evidently
This court
ecutor, having no assets.
ordered that the said plaintiff' shall
appear by the description of them in

the purchaser's deed of conveyance
to be the same conveyed to the ven-
the said articles of his father, and

thereby covenant to free the prem-
dor, the vendor should further covenant that they are part of the estate
conveyed
to
him by
his vendor."
Williams on Real Property, 348

2
Cripps v. Reade, 6 Term, 606
1
Lockwood
nect. 384
v.
Lloyd
State R. 262.
'
Sturdevant, 6 Cont;.
Quimby,
5 Ohio
seal the said
ises
covenant according to
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 tinson had notice, and I suppose
covenants were against his
acts."
tlu'so
own
553
"
is the universal and settled

pracFor instance, if I sell an estate
of conveyancers.
which was devised to me, and the devisor's fother originally
Lord
says
St.
Leonards,
2
tice
purchased the
estate, the
the acts of the father,"
same
covenants for
and on
are extended to
title
this side of the Atlantic the
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
1 2
Sugden on Vendors, 453; Dart
on Vendors, 260.
2 This rule has
not, liowever, been
always adopted by the Court of ChanLord Hardwicke once said
cery.
that he had never heard nor did he
know of such a rule " it would be
unreasonable to extend the cove;
first purchaser, when a

family have been for several generations in possession of the estate,
nants to the
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 vendor claims, is sufficient."

Loyd v.
Griffith, 3
Atkyns, 267, but sec
this
case, infra, p. 568.

3
So,
it
is
said,
should be as extensive as in
the case of descents
but
if
any of
the family purchased the estate, then

the covenants should only extend to
the acts of such purchaser and those

claiming under him. Barton's Con-
veyancing, 72.
4 Hill v.
v.
Seeley,
man
v.
not a covenant.
5
See passim, supra,
"Al-
p. 325.
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 extending to the acts of the successive owners of the property, yet practically, he
entitled to no such thing, but must
rest content with the covenants obis
tained by former owners, whether

they run with the land or are colit, and whether they keep
up the chain of liability, or leave it
altogether broken and disconnected.
lateral to
This observation does not apply to

title to which a
purchaser is entitled from his immethe covenants for
In " Humphreys on
seller."
Real Property," a work not more
remarkable for the concise and clear
view of the actual law which it condiate
where one claims
under a voluntary settlement or conveyance, the covenants, when he

sells,
is
Ressegieu, supra ; Hyatt

Kernan, (N. Y.) 56 llol;
Criswell, 15 Texas, 399.
47
tains,
than for the deficiency of the
code by which the learned author

proposed to remedy the evils he so
pointedly showed
marks
there
"
to
exist,
he re-
The
professed rule is, that

should be a chain of cove:
nants throughout the title, connecting those of the alicnor with those of
the preceding
covenanted.
owner who has
To
this rule,
last
however,
WHAT COVENANTS FOR
554.
But
TITLE
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
it
be found
will
difficult
and which a purchaser has a right
give,
to expect,
as,
owing
to various causes, the practice of conveyancing differs widely

2
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 objecexpediency and of precedent.
tions of
First, such a qualified warranty never

actually enters the contemplation of
Whoever
the contracting parties.
acquires land at its full value, expects an equally complete or indefeasible title to
The
it.
notion of
concatenated fractions of an entire

obligation, rendering the alienor answerable for the faults of the first
link only, and then referring the
alienee, for
exhausted
would
prior defects, to the
of long-deceased
too revolting to suppose

be accepted, as a guarantee,
strangers,
it
all
assets
is
by any purchaser
to
whom
it
was
once explained. Should it be urged

he
you have the title to inspect
would reply, such are the complications of real property,
and the
in-
adequate means of search, that with

reasonable diligence, defects must
often remain undiscovered, and a
all
purchaser
seller,
is
not concluded by latent

the Roman law, the
Under
faults.
on the eviction of the pur-
chaser, was answerable
the
loss,
under certain
to
him
for
qualifications,
interposed for the protection of the

The Code Napoleon (1G2G
former.
-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
which is
in
damages, the amount of
regulated by the
and by subsequent permanent
improvements." Humphreys on Real
chiefly
price,
Property, 77.
1 It was held
by Lord Tenterden
at Nisi Prius,
Bennett
r.
Womack,
&
Payne, 96, and subsequently

by the Court of King's Bench, on a
motion for a new trial, 1 Barn. &
Car.
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. R. 632,) and
is
apprehended that the same rule would be
;
it,
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 the purchaser's right

to a production of the vendor's prior
title deeds, are unknown in this country.
555
in a
comparatively new counpurchase, lose their application
which
covenants
The
same
might satisfy a purchaser
try.
in England or Massachusetts, might not satisfy a purchaser
As precision of conveyancing inin Texas or California.

creases with the steady rise of property, and as the titles
become better known, a purchaser is less anxious for general covenants than
where he buys
in
comparative ignorance
upon such covenants for his protec1

tion.
Hence, the greatest difference will be found to exist
between the law and practice on this point, not only on the
of the
title,
and
relies
different sides of the Atlantic,
and between
different States,
2
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
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 conin
tain general covenants.
In the larger towns of that State,
See the remarks of Huston, J.,

Whitehead v. Carr, 5 Watts, (Pa.)
369, and Spencer, J., in Pitcher v.
in
Livingston, 4 Johns. (N. Y.) 14.

2 These remarks in the text were
and approved
of Dwight v. Cutler,
Withers
;
Espy
v.
Cresson
seems
was
to be, that if he fails to recover

land, he has his remedy over
against the vendor and that, there-
the
Baird, 7 Watts, (Pa.)

Anderson, 2 Harris, (14
v.
v.
Miller, 2 Watts, (Pa.)
Forster's Executors
v.
Gillam,
Harris, (13 Penn. State R.) 343.
;
title
purchaser
he received was doubtful, or that

The idea
it to be such.
3 Michigan, 577,
Penn. State R.) 312.

276
title
he knew
infra, p. 558.
3
taking a
deed with a general warranty, forms
not the slightest presumption that the
defective.
in the late case
cited
229
reason to suspect that the
" General
warranties," said Gibson,
Ch. J., in Cresson v. Miller, "are

taken ex abundante cautela, and not
because the purchaser had the least
he can be in no better situation

than the vendor.
It is apparent,
fore,
however, that in a great majority of

instances, a vendee cannot obtain
Without insisting
adequate relief.
upon the occasional insolvency of the
vendor, he cannot be compensated
for the increased value of the land,
arising from his industry
and
skill,
or
WHAT COVENANTS FOR
556
and certainly
TITLE
believed that in ordinary

cases, a covenant of warranty, limited to the acts of the vendor and his heirs, and, in some instances, carried back to the
last
in Philadelphia,
it is
person claiming* by purchase,
is
the only express cove-
inserted in the conveyance, and this coincides

with the rule of the Supreme Court, while a fiduciary ven2
dor usually enters into- only the ordinary trustee covenant.
nant for
title
In many of the counties, however, it is believed that a purchaser generally expects, and a vendor rarely hesitates to
give a covenant of general warranty, as it seems to be sometimes thought, that if the latter is only willing to covenant
1
his
against
o
own
acts,J
defective about the prior
the
in
know
he must
title.
there
is
something
o
In a somewhat recent case
3
Supreme Court of the United States, Story,
referred to a deed with
J.,
as
being
special warranty only,
"a
significant circumstance," in affecting a purchaser with
4
But there would seem to be
notice of a paramount title.
equal reason for the opposite argument that a deed with
that
general warranty was as significant a circumstance
unless there had been something w rong about the title, the
purchaser would not have demanded a general covenant, and
r
that he intended to run the risk of the defect, and rely on

It is apprehended, howthe covenant for his protection.
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
in erecting valuable improvements on

the premises."
1
Tims, in case of a conveyance by

it is believed to bo
heirs or devisees,
ru--!iiiu;iry to
the acts of
extend the covenant
to
they are carried back to the
last person claiming by purchase in its popular sense ; see supra, p. 552.
Infra, p. 556.
Oliver
Such
v.
Piatt, 3
Howard, 410.
seems to have IHHMI

Woodfold i>. lilount, 3
also
tin;
intestate or testator,
thought in
and sometime?,
as stated in the text,
Ileywood, (Tenn.) 147.
55J
the practice there was different from that in England, and

that a covenant for general warranty is usually required
and given. 1
Kentucky, it was held, at an early day,

he hoth the settled rule and practice in that State, that
to
So
in
unless there were a special contract to the contrary, a cove2

and such is still
nant of general warranty must be given ;
the rule.
So
in a late case in
1 Rucker
v.
Lowther, 6 Leigh,
(Va.) 259, where it was said to be
" admitted in the
argument, and
rightly, I think, that,
upon an agree-
ment
for the sale of lands, the ven-
dor
is
to
lor
a general warranty, unless the
be considered as contracting
contrary is expressly provided." See

Dickinson v. Hoomes's Admrs. 8
Grattan, 394, where the language of
Lord Eldon,
in
Browning v. Wright,
551, was quoted and con-
supra, p.
trasted with the Virginia practice.
2 Steele v.
Mitchell, Kentucky De-
As this volume of reports

believed to be rare, the following
extract is inserted from the opinion
cisions, 4 7.
is
of the Court in this case.
a conveyance
is
to
"
Where
be made,
for a
valuable consideration of a general

nature, a warranty as universally held
to
be an essential part of the deed or
and unless
assurance
where
is
in those cases
otherwise provided by
special contract, a general warranty
it
it
Michigan,
was held
that
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
This Court is of opinion,
dispute.
.
comply with the legal intent

of the bond in question, such a deed
that to
is customary in like cases should

be made that is to say, a deed with
general warranty and consequently,
that the District Court erred in decreeing a deed wifh only special warranty. This opinion is supported by
as
on warranties, which has

been suggested and is further confirmed 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
the doctrine
to dictate, that when any person seems to limit his contract in the
seems
sale of lands,
it is
his business to
have
expressed; otherwise the presumption ought to be that he undertakes
is
as universally
expected. It need
not be observed, that this
opinion
it
and expectation is certainly authorby the general principles of
to
justice, as well as
the purchaser."
3
Fleming v. Harrison, 2 Bibb, 171;
ized
by the universal
custom of this country, and that from

which we derive most of our legal
The appellee was only
precepts.
willing to
convey with special war-
ranty, and the appellant refused to
47*
make
a good
title,
or a deed which
will insure the land, or its value, to
Vanada
v. Hopkins, 1 J. J. Marshall,
203 (see Bodley v. M'Cord, 4 Id.
475) Hedges v. Kerr, 4 B. Monroe,
528 Andrews v. Word, 17 Id. 520,
;
WHAT COVENANTS FOR
558
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
lawful title"
though
in
" for
Indiana, a bond conditioned
was held
a case
to require a general
in the Circuit
making a
2
warranty, and
al-
Court of the United States for
McLean, J., considered that a bond conditioned

" a
good and general warranty deed with the feesimple annexed," did not require the insertion of a covenant
of seizin ; 3 yet in a late case, the Supreme Court of that
"
State have held that an
to
a
that district,
to
make
agreement
convey by
good
and indefeasible inheritance in fee-simple," is not complied
with by the tender of a deed with a general covenant of war" a fair construction of the
ranty merely, but that
language
demand a deed with full covenants." 4

an early case in Ohio, it was said that a con-
of the bond makes
So, where, in
tract for a
good and
it
sufficient
deed
is
a contract "to convey
the fee-simple with covenant of warranty," 6 it is presumed

6
that a general warranty was meant ;
and in a later case, it
In Slack
v.
Thompson, 4 B. Monroe,
(Ken.) 462, the express agreement

was to give a covenant of quiet en" without
trouble or
any
molestation whatever," and the terms
of the agreement would of themselves
have been sufficient to prevail even
against an opposite usage to the con-
joyment,
trary.
l
wight v. Cutler, 3 Michigan,
579, where, after citing the remarks
in the text, supra, the Court added,
" No doubt it is the
general usage in
this State, and probably in most of
the Western States, to convey land

by deeds containing the covenant of
general warranty, upon the principle

that an agreement to convey, where
there is nothing to show a contrary
intention, gives a right to the usual
covenants for
title."
Clark
v.
Redman,
Blackford,
(Md.) 379.
3
Kirkendale
v.
Mitchell, 3
M'Lean,
146.
4
5
6
Linn v. Barkey, 7 Indiana, 70.

Tremain v. Ljning, Wright, 644.
So it is presumed that general
covenants are intended by the expression in a late case in Vermont,
"The
several covenants of seizin and
against incumbrances are covenants

which, under the form of corn ey-
ances in
serted
in
this State,
are usually in-
deeds of that character,
and when an agreement
is
made
a warranty deed, a deed with

these covenants would be intended,"
for
fiowcn v. Thrall, 2 Williams, (Venn.)

385, and the covenant of warranty in
the deed ia question was a general or
absolute one.
was held
that a
hond
to
make
" for a
good and perfect
a lawful
title,
559
bound the obligor
with a general warranty deed,

It is presumed that the
containing the usual covenants."
in the States more recently admitted into
same rule
title
prevails
the Union, and where the
are comparatively newer.

But it is probable, that with the increase of care in the examination of titles, the purchaser's right to unlimited covenants will be narrowed.
titles
necessary to say, that whatever may be the

local usage on this point, it will be always subject to be controlled by the express terms of the articles of sale.
It is scarcely
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

8
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," related 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, 4 a
;
was given to a contract to give "a good

5
deed
of
warranty
conveyance of the land."
similar construction
Clark
There the remark of Spencer,
v.
Redman,
11 Ohio, 380.
before the adoption or repudiation of
J.,
it."
in Pitcher
t>.
Livingston, 4 Johns. 14,
apply, that it was rare for the
purchaser to investigate the seller's
may
title,
and that he mostly
his covenants.
relied
In Gilchrist
v.
upon
Buie,
1 Dev. & Batt.

Eq. (N. Car.) 357,
the Court, in adverting to the English rule of limiting the covenants to
" That
the act of the
vendor, said,
position has never yet been laid down

by us or our predecessors, and would
require very deliberate consideration
IG Johns. 267, per Spencer, J.

20 Johns. 132.
5 So in a case in
Massachusetts,
where the agreement was to give a
good and sufficient warranty deed of
the premises, it was held that "the
words 'good and sufficient' relate
only to the validity of the deed, and

do not imply that the title was valid
or that
it
was
To guard
free
from incumbrance.
against any defect of title,

a covenant of warranty was provided
WHAT COVENANTS FOR
560
But
these decisions in
prior and
New York
TITLE
are opposed both to
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,
1
in the early case of Clute v.
Robinson,
Ch.
to execute a
J., that an
was held by Kent,

good and sufficient
it
agreement
deed for the premises, did not mean merely a conveyance
good in point of form. That would be a conveyance without substance
but
that carried with

2
it
meant an operative conveyance, one

a good and sufficient title to the land
it
subsequent case, Chancellor Wai worth

was clearly of opinion that " an agreement to convey land
by a good and sufficient warranty deed, was not complied
conveyed;
and
in a
with by the mere giving of a warranty deed, where the

grantor had no title to the land, or when his title was imperfect.
It
must be a deed good and
form and substance,
to
convey a valid
title
both in
sufficient,
which
to the land
4
the covenantor has agreed should be
These
conveyed."
5
principles are sustained by a great weight of authority, and
for,
which shows clearly that the agreeso understood by the par-
ment was
Tinneyy. Ashley, 15 Pickering,

552, approving Gazeleyu. Price. The
same Court seemed disposed to take
ties."
the same view of the law in an early

case, Aiken v. Sanford, 5 Mass. 499,
though
Swan
it
was said
in that case, as in
ingly quoted by Van Ness, J., in delivering the opinion of the Court, in
Judson v. Wass, 11 Johns. 528.
3
Everson
Kirtland, 4
v.
Paige,
(N. Y.) 638.

*
So in Carpenter v. Baily, 1 7
Wendell, (N. Y.) 244 Traver v. I lal;
stead, 23 Id. 66
see
Winne
v.
Rey-
Drury, 22 Pickering, 489,

and Tharin v. Fickling, 2 Richardson,
nolds, 6 Paige, (N. Y.) 411.

6 Dearth v.
Williamson, 2 Serg.
(S. Car.) 364, "that if the money

was to be paid on receiving the deed,
Rawle, (Pa.) 498; Romig v. Romig,

2 Rawle, (Pa.) 249
Eby v. Eby, 5
Barr, (Pa.) 466 (see Moore v. ILirris-
v.
might be a reasonable construction

that a good and sufficient title should
be conveyed."
See also Mead v.
it
Fox,
1
6 Gushing,
(Mass.) 202.
2 Johns. 413.
So in Jones o. Gardiner, 10 Johns.

266, and these remarks were approv-
&
burg Bank, 8 Watts, (Pa.) 149)

well
v.
Hamilton,
Id. 4
Col-
Porter
v.
Noyes, 2 Greenleaf, (Me.) 22 Brown

v. Gammon, 14 Maine, 276
Hill v.
Hobart, 16 Id. 164 Stow v. Stevens,
;
Vermont, 27; Lawrence
v.
Dole,
New York
the recent case in
in
561
of
Pomeroy v. Drury, all

were considered, and Gazeley v. Price and
Parmelee were directly overruled, 1 and the latest
the authorities
Parker
v.
authorities in that State have adhered to this course of de11 Id. 549; Little v. Paddleford, 13
N. Ilamp. 1 G7 (settling the doubt sug-
ing that the Court took a rational

and correct view of the question in
gested in Beach r. Steele, 12 Id. 89);

Mitchell v. Hazen, 4 Connect. 495
Barrow
Swan
v. Seymour, 21 Id. 480
Drury, 22 Pickering, (Mass.) 488
Mead y. Fox,* 6 Gushing, (Mass.) 202;
Dodd
v.
Brown
318
roe,
Starke, 3 Dana, (Ken.)
v.
Andrews
v.
(Ken.) 520
Word, 17 B. MonTar water v. Davis,
2 English, (Ark.)
153
Michigan, 575
Cutler, 3
D wight
v.
Clark
v.
Bispham, by holding that
v.
unless there was something else in

the instrument or attendant circum-
show that the parties by

meant title, the Court had
no right to say the former word
meant the latter, added, "If this
were entirely an open question in
stances to
the deed
this Court, I confess I should strongly incline to adopt the construction
Redman, 1 Blackford, (Md.) 379;

Pugh v. Chesseldme, 11 Ohio, 109;
given by Judge Kent and the Court

of Errors in Clute v. Robinson
Hunter v. O'Neil, 12 Alabama, 39;

Greenwood v. Ligon, 10 Smedes
1 undertake to say, that in a written

contract for the sale and purchase of
Marsh. (Miss.) 615

Feemster t>.
May, 13 Id. 275; Mobley v. Keys,
Id. 677; Gilchrist v. Buie, 1 Dev.
& Bat. Eq. (N. Car.) 346 Lee v.
lands, the expression,
Foard,
Watts
v.
Jones' Eq. (N. Car.) 127;
Waddle,
v.
M'Lean, 200;
Smith, 11
199;
Morgan
Brown v. Cannon, 5 Gilman, (111.)
1 74
Cunningham v. Sharp, 1 1
Humphreys, (Tenn.) 120 'Shreck
Illinois,
v.
Pierce, 3
Clarke, (Iowa), 360;

Lawson, 17 Texas, 16
Vardeman
v.
Thayer
White, 3 California, 229.
In
New
v.
Jersey, the early case
of
Johnson
v. Smock, Coxe, 106, was

decided in accordance with the ear-
case in New York of Clute v.

Robinson, but in Barrow y. Bispham,
6 Halsted, 119, the Court approved
of the decisions in Gazeley ?>. Price
and Parker v. Parmelee. When the
lier
question was again presented in the

recent case of Tindall v. Conover, 1
Spencer, 214, Nevius,
J., after say-
sufficient
'
a good and
warranty deed,'
will
be un-
derstood by more than nine tenths

of mankind, not excepting the legal
profession, to mean a good and sufficient title
"
and when
came again before
this
case
the Court in Tin-
dall v.
Conover, 1 Zabriskie, (N. J.)

654. the question was decided in accordance with the weight of author-
See also New

Barbadoes Toll Bridge Co. v. Tree-
ity just referred to.
land, 3 Green's Ch. (N. J.) 157.

i 14 Barbour's S. C.
(N. Y.) 424,
the Court saying
"I think
it
may be
Gazeley v. Price and

Parmelee are no longer au-
safely said that
Parker
v.
covenant
convey lands by warranty deed on a
sale, refers only to the form and suffi-
thorities for holding that a
to
ciency of the deed and not to the
conveyed."
The decisions in
title
question
had also been virtually overruled in
Fletcher v. Button, 4 Comatock, 400.
WHAT COVENANTS FOR

cision.
It is possible that
in
harmony with
of
all
some
TITLE
cases which
seem
to be not
others, may be reconciled by reason of the

2
and
peculiar words of the contract.
express
There is, indeed, a guiding principle to the construction
these cases, which
may
be briefly referred
It is
to.
familiar law that the general principles of the contract of

sale, both in this country and in England, recognize and
enforce, while
chaser to a
right
is
it
still
executory, the right of the pur-
clear of defects
title
and incumbrances.
This
one, not growing out of the agreement of the par-
is
given by the law, and it naturally folthat

a
of
court
lows,
equity will not decree the specific performance of a contract, where the title is bad, or even, as
ties,
but which
is
has been said in modern times, where
it
Hill
v.
164
653
Burwell
1 7
Ressegieu,
S. C.
Atkins
v.
v.
Barbour's
Bahrett, 19 Id.
Jackson, 5 Selden,
643.
2
Thus, an agreement to convey
the vendor's interest in a certain
all
lot,
"
meaning the same interest which

was deeded to him by P.," was held
to bind the vendor only to a conveyance of that interest
Babcock v.
;
Wilson, 17 Maine, 372.

3 Souter v.
Drake, 5
Barn.
&
Adolph. 999, per Denman, Ch. J.

Doe v. Stanion, 1 Mees. & Welsh.
Burwell v. Jackson, 5 Selden,

543 Shreck v. Pierce, 3
Y.)
(N.
Clarke, (Iowa) 360; 2 Sugden on
Vendors, 2.
* The rule in
equity as to not com701
" a doubtpelling a purchaser to take

ful title,"
was said
in
Marlow
v.
Smith,
2 Peere Wins. 201, to be as old a,s

Sir Joseph Je!<yl's time, and in Slope
t
Fi>h,
was
said
& Beames, 149, it

have been repeat IM UN-
Vesey
to
acted on by Lord Hardwicke.
Shap-
land
Smith,
t>.
it
doubtful.
is
Brown's Ch. R.
75,
however, generally cited as the

leading case, although there was there
but an expression of Lord Thurlow,
that " if the title was only doubtful,
is,
he would not oblige the purchaser to

Of that case, Mr. Chief
take it."
Baron Eyre
(before
whom, while
sitting for the Chancellor,
it
had been
originally heard), remarked, in Gale

" there
v. Gale, 2 Coxe, 145, that
could be no such thing as a doubtful

it must
title in a court of justice
either be right or wrong,
and the
medium through
which the point was to be seen, made
no difference in the end. The Court
thickness of
the
might have some
difficulty in flour-
the point must be

taken as equally certain as if no such
difficulty had existed, for which rea-
ing
it,
but at
last
son, in the case of
Shapland
he
the force of those
h;i<l
cases,' in
not
1'flt
which
it
v.
Smith,
had been said that
a purchaser should not be compelled

See the
to take a doubtful title."

when an incumbrance
Hence,
which
exists,
it
563
was not
agreed upon should enter into and form part of the considremarks of the same Judge in Cooper
Denne, 4 Brown's Ch. R. 88 also
v.
reported in
Eldon
Bliss, 11
Lord
Vancouver r.
Vesey, Jr. 5G5.
said
in
also,
"
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
and say
less
in
the
difficulty in
title
one case, he should take

he should not. The
in another,
it;
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
The departas could be procured.

ure from that course has been at-
has ever been entertained upon the

no one thinking of disputing it,
title,
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
thing
is,
to his satisfaction, the first
that the
some one
abstract
for the express
goes to
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
the case of Shapland

Smith, in which the single ques-
which now prehas been established so long,

that I have not authority to alter it."
between Baron Eyre and Mr.

whether there was a use
executed or not and the case sunk
See Stapylton v. Scott, 16 Vesey,

274 Biscoe v. Perkins, 1 Vesey &
Beames, 493 Sloper v. Fish, 2 Id.
down
much
with so
149.
difficulty upon the title, a purchaser should not be compelled to

take it. That case has been followed
ject
tended with great

first
v.
instance
mischief.
The
is
tion
Ilett was,
since.
It
into this
What
is
state,
the
that
consequence
scarcely possible to represent

the difficulties that have arisen from
it
is
especially in a period,
sons,
when
per-
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
rule, but the course

vails
valuable note on this sub-
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 characterized 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 disHence it recretion in the Court.
quires a much less strength of case

on the part of the defendant to resist
WHAT COVENANTS FOR

eration, the
vendor must discharge
a completion of the
a
bill to
sale.
perform a contract, than
it
2 Story, 78, 79 White

7
Vesey, 85. In Clows v.
v.
Damon,
Higginson,
Vesey & Beames, 526,
by the Vice-Chancellor to
be a plain and obvious principle, that
a court of equily is not bound to init
said
is
before he can
call for
does on the part of the plaintiff to

maintain a bill to enforce a specific
performance
it
TITLE
terpose by specifically performing the

And although the subject
contract.
and import of the written contract

are clear, so that there is no neces-
on a matter
Kidd, 5 Vesey,
Boghurst, 1 Swanst.
pose of satisfying
of law
647
320
375.
Roake
Prebble
itself
v.
v.
Sharp v. Adcock, 4 Russell,

Hence, if doubts arise, either
or law, involved in the
as to fact
and the purchaser be an un-
title,
willing one, as his 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
its
con-
struction, yet if the defendant
can
the decision of the fact or the law,

which it would do at the hazard of
show any circumstances, dehors, independent of the writing, making it
in a court of law, or to refuse to in-
sity to resort to
evidence for
what might be afterwards determined

on behalf of the vendor
an
on
inequitable to interpose for the purpose of a specific performance, a
terfere
court of equity having satisfactory

information on the subject, will not
This discretion is not,
interpose.
the principle that a bill for specific

performance of a contract, is an ap-
however, arbitrary, but exercised in
Court, and a decree, therefore, cannot be claimed as a matter of right :
a judicial manner according

lished rules: 3 Atkyns, 187;
to estab-
18 Ve-
sey, 111.
"
result of this doc-
trine, has arisen that of
is
A marketable
one in which there
marketable
title in
is
equity
no doubt
in-
volved, either as to matter of law or

fact
and such a
title will
a purcha-
ser be compelled to accept AtkinIt seems that a court of

son, 3.
:
for speequity has no' power in suits

cific performance, except on the apof all parties to
plication and consent
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 purl
it is
to
plication
Atkinson,
doctrine,
As a natural
titles.
alternative
the
9.
entitled to choose
discretion
of the
In illustration of this
Lord Eldon,
in Staplcton v.
Scott, 16
'
Vesey, 272, remarks, that

has been held repeatedly that
It
though, in the judgment of the Court,

the better opinion is, that a title can
be made, yet if there is a considerarational doubt, the Court has not
much credit to its own
ble,
attached so
opinion as to compel a purchaser to

take the title, but leaves the parties
to
The
law.'
distinction
good and marketable
titles
between
seems pe-
culiar to courts of equity, bring unknown* in courts of law, where the
question
bad
is
is the title good or

James, 6 Tauntun,
simply,
llomilly
v.
The law
then, recognizing,
565
primd facie, a necessary im-
plication of a
good
real estate,
follows that an agreement by which such a
it
in
title
every contract for the sale of
settled rule is to he disregarded should he
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
hy 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. 1
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.
manifest and
proper difference exists between this

we have just considered, as
class of vendors and that which
to the covenants to be exacted
from them, and the rules and
The equity
274;
Marshall, 592.
doctrine seems to involve this result,
plaintiff's rights, if
that
no
be forced on a purnot so free from dif-
title will
chaser which
ficulty as to
is
law and
fact, that
on a
an unwilling purchaser shall

to raise any question which
may appear to a Judge sitting in
re-sale
be unable
equity, so doubtful that a title involvit

ought not to be enforced,
ing
These are
settled doctrines of
English
seem to necessarily arise
equity, and
from the
constitution^
able tribunals.
of strictly equit-
The urgent powers
lish.
It
any he can
estab-
only denies to him an extra-
ordinary remedy, properly applicable

only to cases in no respect equivocal.,
The doubts, however, which will operate on a court of equity, are not
doubts
made up
for
the
occasion
not based on captious, frivolous, and

astute niceties
but such as produce
;
bonafide hesitation in the mind

of the Chancellor. The doubts must,
in the language of Lord Eldon, be
real
'considerable and rational,' such as

would and ought to induce a prudent
man
applied in the exercise of any discretionary jurisdiction, where doubts
to pause and hesitate in the

acceptance of a title affected by
them."
prevail as to the perfect soundness

of the plaintiff's claim, or apparent
cited at length
justice characterizes the defendant's
late
of these tribunals ought never to be
objections.
docs not
The
refusal to interfere
absolutely repudiate
48
the
The remarks
in the text were

and approved in the
case of Vardeman v. Lawson, 17
Texas, 16.
WHAT COVENANTS FOR
566
practice
TITLE
this subject, are, perhaps, equally well settled
upon
on both sides of the Atlantic.
The
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
rule
may
no covenants but that the vendor has done no act

" the
estate, which is very generally called
"
it
usual trustee covenant
being evident that few persons
entitled to
incumber the
to
be found
could
to
act
in
a fiduciary or
representative
capacity if they were compellable to enter into covenants of
1
greater scope.
This covenant
words
is
generally expressed in the following
" that
he, the said (trustee) hath not, at any time
heretofore,
suffered, or been party
made, done, permitted or
or privy to any act, matter or thing whatsoever, wherewith

1
The
and
Staines
10
rule with respect to trustees

may be found in
executors
v.
Morris,
& Beames,
Ves.
Worley v. Frampton, 5 Hare,

560 Dwinel v. Veazie, 36 Maine,
509 Sumner v. Williams, 8 Mass.
;
201
ing,
v. Saunders, 17 PickerShontz v. Brown, 3 Casey,
Hodges
476
(27 Penn. State R.) 134; Grantland

v. Wight, 5 Munford, (Va.) 295 Allen v. Winslow's Adinr. 1 Randolph,
(Va.) 71 Ennis v. Leach, 1 IredelPs
;
Eq. (N. Car.) 416
Brackenridge v.
Dawson, 7 Indiana, 387 Worthy v.
Johnson, 8 Georgia, 236 Redwine
Aven v.
v.
Brown, 10 Id. 311
;
Beckom,
11
Id.
Chastaine
v.
Staley, 23 Id. 26 ; and with regard

to assignees, in Wilkins v. Fry, 1
Merivale, 208; White v. Foljambe,

11 Ves. 345, and see, passim, the
cases cited infra, p. 572,
and
wlu-iv,
trustees of a charity,
it
refused,
on
the application of the lessee, to suffer

the covenants of the trustees to re-
main.
It
is
that
however,
presumed,
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 assurance, but the practice has been otherwise, Barton's Conveyancing, 70 t
and
this
it has been
recently settled that
cannot be exacted of them; Wor-
Frampton, 5 Hare, 560. It

however, been held that if trustees under a will come into equity to
ley
v.
has,
compel specific performance by the

vendee of a contract made with thrir
testator as vendor, tlu-y will be coin-
in Atty.-Gen. v. Morgan, 2 Russell,

306, the Court cancelled a lease as
the same
having been improperly granted by
done
pi lied
to
covenant for the
manner
Page
v.
as
ho was
Broom,
titlr
to
in
have
Beuvan,
3G.
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

1
erwise howsoever.
But although
title,
further covenants cannot be
estate or oth-
demanded from
has been the practice in England

for the purchaser to insist on covenants from the parties
a fiduciary vendor, yet
it
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
3
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
dleton, 6 Barn.
&
MidCress. 295, where

v.
was held that the covenantor having assented to an act which he could
not prevent, was no breach of a
covenant that he had not " permitit
ted or suffered any act, matter or

thing," &c.
2 " It
always has been, and
currence
rather matter of favor
is
than of right Ex parte Crowder, 2

Rose, 327 Waugh v. Land, Cooper,
134 Sugd. Concise View, 433 and
;
apprehended that this would

equally apply to conveyances made
it
is
by
assignees for the benefit of credunder insolvent laws.
itors,
3
The
practice was condemned by

in Wakeman v.
Lord Loughborough
still is
The Duchess of Rutland, 3 Vesey, 233,
the practice of the profession," says

" to make all the
Lord St.
504, affirmed on appeal, 8 Brown's

Par. Cas. 145. The decision was,
cestui que trusts whose shares of the

purchase-money are in any wise con-
however, against the opinion of the

most experienced conveyancers of
siderable, join in covenants for the

title, according to their respective
"
interest."
he con-
that
Leonards,
A bankrupt,"
always made a party to
the conveyance of his estate, to meet
tinues,
"
is
the difficulty which the purchaser

might otherwise be put to in maintaining and proving the
bankrupt
is
generally
title,
made
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

for the
Where
title.
arise
to enter
lutely given to
title,
same manner as
had he sold the estate while
and is, says Lord St

by no means an author-
and the
and in the
he would have done
into covenants for
period,
"
Leonards,
by
to
the
of the estate
sale
covenant
money
is
two or more persons,
they are substantially owners of the

estate, and must accordingly cove-
So even where
be
solvent,"
nant for the
title.
It
the
in the first place to
seems,
however, that the bankrupt cannot

be compelled to do this, and his con-
to
abso-
money
is
applied in payment of debts, yet if

they are all paid previously to the
WHAT COVENANTS FOR
568
and
TITLE
has received judiwould seem that the correct test of
has not been until recently that
it
it
It
approbation.
the application of such a rule would be the extent of the
purchaser's liability to see to the application of the purchasecial
money.
is
given over, a purchaser is
not entitled to any covenants for the
sale, the cestui
que trusts must, it is

conceived, covenant for the title."
residue
may, moreover, be observed that

v. The Duchess of Rutland, was, to some extent, against
the views expressed by Lord Hard-
title,
wicke in Loyd v.
264, which case
5
a person who only took
coveto
be
required
might
nant, as one who took a large sum.
It
Wakeman
Griffith, 3
is,
Atkyns,
however, criti-
cized by Mr. Platt, who says it ap" rather

pears to have been decided
with reference to particular circumstances than from
ciple ;" Platt
any general prinon Covenants, 392.
In the case of the London Bridge

Acts, 13 Simons, 176, lands were
1
devised to
for
life,
for
remainder
cessively in
tail
remainder to
life,
to his sons suc-
male.
and
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,
as well
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 prevailed, the consequence would be,
that the estate could never be sold
by decree,
of
all
till
the account was taken
the debts
because, before that

it could not ap-
account was taken,
during the infancy of B's eldest son

obtained an act of Parliament vest-
pear who were to join in the conveyance, what was the number, and in
ing the estate in trustees in trust to

sell, and the Vice-Chancellor "ap-
what proportions they were benefi-
prehended that where the only persons who were immediately interested
in the estates were tenants for life, it
was the usual course to make them
covenant for the title
that the ten-
practice to sell the estate in the first

instance ; of course the title can be
ants for
same
life
in this case stood in the
situation as if there
power
had been a
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
Broom, 3 Beavan, 85.

Lord St. Leonards says, " Where
an estate is sold by trustees under a
will, and the money is to be applied
v.
in
payment of
debts, etc.,
and the
cially entitled
made only by
but
it is
the constant
the trustees for sale,
without calling on the parties who

are presumptively^beneficially inter-
There would seem to be

some reason why, in America, ceslui
ested."
que
to
trusts
enter
which
which
is,
in
should not be compellablo

covenants for title,
into
that the English doctrine

cases obliges the pur-
many
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
Leading Cases
v.
Merryman,
in Equity,)
ami the
The
the
title
from
569
question of the purchaser's right to covenants for

from an agent, acting under a power of attorney
his principal, has often arisen in cases
in
where,
a suit
against the latter, upon covenants made on his behalf by the

agent, the right so to bind the principal has been denied.
New York
In the early case in
of Nixon
v.
Hyserott, it
was assumed that as a deed without any covenants for the
title was sufficient to
pass the estate to the purchaser, the
latter
was
had no right
said that a
to
demand
power
of attorney to sell
for the title
2
;
beneficially interested;
though
under an adverse
as regards claims
title, it is
obvious that this
reason cannot apply.

The passage in the text was cited
New York
in the late case in
of Hill
Ressegieu, 17 Barbour's S. C. 167,

" That
where it is
v.
said,
liability (to
the application of the purchase money,) does not now extend

see
to
to
payments
good faith;
to the trustees
1
Rev.
Stats.
made
in
730,
10
Paige, 282," and it was held that

where a vendor having covenanted to
convey land free of all incumbrance

widow and three heirs,
one of whom was an infant, the infant was decreed to convey, but without covenants, and the adult heirs
died, leaving a
were decreed
to
convey with cove-
nants against their own acts. The

same point as to covenants by infant
heirs
1
was decided
in
Hyatt
Kernan, (N. Y.) 56.

1
it
and convey land,
form, implied no power to covenant

and in a subsequent case, 3 the same rule was
purchaser is therefore in less need

of these covenants as a protection
against the future claims of the par-
paramount
and hence
in the usual
expressed
ties
these covenants,
5 Johnson, 58.
48*
v.
Seeley,
"
The attorney was
said the Court, " to sell
authorized,"
and to exe-
cute conveyances and assurances in
the law, of the land sold, but no

authority was given to bind the prin-
A conveyance
good and perfect without either warranty or personal covcipal
by covenants.
or assurance
is
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 substance from it is void."
;
In
Gibson
v.
Van Eps
v.
Colt, 7
Johnson, 390.
Schenectady, 12 Id.
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 de436,
cision in Fuller
v. Hubbard, 6
Cowen,
and Willis v. Aston, 4 Edwards'
Ch. 595, and these cases have been
22,
approved in Connecticut
Johnson, 3 Connect. 592
Mead
Dodd
v.
v.
Seymour, 21 Id. 480. Such a conveyance is certainly sufficient to pass

the estate of the grantor, but is not,
it is conceived, all that the purchaser
WHAT COVENANTS FOR
570
TITLE
It has, however, been

applied to the warranty of a chattel.
held in England that an authority to sell a horse carries
with it an authority to warrant him sound, as the warranty
is,
a natural incident of the contract.
in general,
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 purchaser to covenants for the title from the principal, it will
not suffer that right to be defeated by the mere delegation
by him of an authority
to
however, that
consummate the
restricted
is
in
contract.
Where,
terms so express
authority
as to control that which the law otherwise implies, the rights
of the purchaser will, of course, be limited by the letter of
the instrument.
It is,
however, a familiar rule that, in general, when paren autre droit, and bind themselves personally,
ties contract
and
fail
to bind their principals, they are to be held person3
and the rule applies a fortiori

This general principle was applied
ally responsible,
under
seal.
in the case of
Appleton
v.
to contracts
in England,
where
one
Binks,
having cove4
nanted, on behalf of another, to pay the purchase-money of

certain property, he was held personally liable ; the Court
contend that where one

holding that it was impossible to
covenants for another he is not to be bound for it, and the
" The title is
has a right to expect ;
one thing, the covenants are other
of the
things, intended as a support
title ;" Osborne v. McMillan, 5 Jones'
Law, (N. Car.) 109.
See supra,
p.
500.
1
Alexander v. Gibson, 2 CampSee also Pickering v.

555.
bell,
Busk, 15 East, 45.

2 Hunter v. Jameson, 6 Iredell,
(N.
Car.) 252 Vanada u. Hopkins, 1 J.
;
(Ken.) 293 Hedges v.

Kerr, 4 B. Monroe, (Ken.) 528
Peter v. Farnsworth, 15 Vermont,
155 Ward v. Bartholomew, G Pick-
J. Marshall,
ering, (Mass.) 410 ; Taggertu. Stansbery, 2 McLean, 543 ; Rucker v.
Lowther, 6 Leigh, (Va.) 259.

3 See
passim, Story on Agem-y,
263, &c.
4 5
East, 148.

covenantee might prefer the security of the covenantor to
that of his principal. 1
In this country it has frequently happened that fiduciary
vendors have, either from inadvertence or design, entered
of greater scope than
the law exacts of them, and in such cases it
into covenants for
title
we have
seen
well settled
is
that the covenants are personally binding upon them.

Thus
2
" in their
the
in
Sumner
v. Williams,
cawhere,
grantors
pacity as administrators," covenanted that they, administrators as aforesaid, were lawfully seized of the premises, that
they were clear from all incumbrances except a certain mort-
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,
was held that the covenantors were personally bound to
it
pay,
out of their private estates, damages arising from an eviction of the covenantees.
There could be no doubt, it was
said, that the grantors did not intend that there should
be
any recurrence to themselves, and that they observed peculiar caution to avoid
any idea of personal liability ; and further, that the nature of
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 confessed equally clear that both parties believed that the covenants were to be effectual in case of an interruption of the
supposed to be granted, though probably neither of

them contemplated the happening of such a contingency.
estate
On
the occurrence of that contingency, however, the Court

to the alternative of
pronouncing the covenants
was reduced
1
See
to the
Jones, 3 Barn.
v.
same
&
effect,
Aid. 47
Gouveia, 3 Dowl.
Norton
648.
v.
Herron,
&
Car.
Burrell
v.
Kennedy
Ry. 503
& Payne,
2 8
Mass. 162.
There had been
previous cases in Massachusetts to the
same
effect
5 Mass. 299
59.
Thacher
Forster
v.
v.
Dinsmore,
Fuller, 6 Id.
WHAT COVENANTS FOR

and wholly
to be void
TITLE
or of giving them operaand individual
ineffectual,
tion against the defendants in their personal
capacity,
and however hard the alternative might
trary to their intention,
still
was one too deeply rooted
it
be, in sub-
payment of damages con-
jecting the administrators to the
was
said that the principle
to be unsettled.
It
was, more-
over, well remarked, that while an administrator
was not
required by any duty of his office or trust, to enter into a

personal covenant for the perfection of the title or for the
validity of the conveyance, beyond his own acts, yet it would
be admitted that he was at liberty to do so
and
to excite the confidence of purchasers
proceeds of the
gage
own
his
is
The
conveyance.
current
of
a
authorities,
supported by
2
principle.
1 That a covenant for title made

by an administrator will not bind the
Mason v. Ham,
estate is well settled
;
Shontz
v.
Brown,
3 Casey, (27 Penn. State R.)

Osborne v. McMillan, 5 Jones'
(N. Car.) 109 ; Worthy

8 Georgia, 236.
2
Duval
Craig, 2
v.
Stinchfield
v.
134;
Law,
Johnson,
Wheaton, 56
Greenleaf,
Talcott, 5 Day,
v.
Little,
Coe v.
(Me.) 231
v. Haven, 4 ConMitchell
92;
(Conn.)
Belden v. Seymour, 8 Id.
nect. 485
;
24
Whiting
(Mass.) 433
Pewey, 15 Pickering,
Donahoe v. Emory, 9
y.
Metcalf, (Mass.) 66 Godley u. Taylor,

3 Dcvereux, (N. Car.) 178; (and see
;
Osborne
v.
McMillan, 5 Jones' Law,
(N. Car.) 109); Mason v. Caldwell,

5 Gilman, (III.) 196 Mellen v. Boarman, 13 Smedes & Marsh. (Miss.)
100; Aven v. Beckom, 11 Georgia,
;
1,
to en-
credit collaterally in the
and by well-established
to enlarge the
and that he might be competent
sale,
rule thus stated
36 Maine, 573
he chose thus
if
where the subject
is
elaborately
considered; Craddock
Admr.
Stewart's
v.
Thus, where
an administratrix of her deceased
husband conveys the land of the
estate under order of court and cove6
Alabama,
nants for the
bound
so
title,
77.
although she
is
not
to
covenant, yet having

done so the covenants will estop her
from claiming dower in the land
Mellon, 23 Mississippi, 586.

It has, however, been held that
where the covenantor expressly de-
Megee
v.
clares
that his liability shall be
more than co-extensive with
no
his fidu-
ciary capacity, he will not be personally bound, even although the
covenants carry with them no protection whatever to the covenantee.
Thus
in
Thayer
v.
Wendell,
(inlli-
son, 16, Story, J., held that a covenant by an executor in his " capacity
of executor and not otherwise," created no personal
liability,
and that

Third.
573
Ministerial vendors, such as sheriffs, marshals,
tax-collectors
and the
like.
apparent from what has been already said,

that no covenants for the title of any kind can be demanded
It is sufficiently
from
this class
of vendors.
no man acting fairly and openly in

alieno jure, and not otherwise, can
unequivocal language, a false confidence of security may be excited on
be made answerable in his private
the part of the purchaser, and the
So
rule applies that the words of the instrument are to be taken most strong-
capacity
where
upon
the
contract.
in Ohio, in the case of
Day
v.
them
but
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
ly against the party using
the word executor, trustee, &c.,

amounted only to matter of description, but that as executors were not
bound in that State to warrant at all,
the words were used to qualify their
nant cannot draw from it a greater

protection than its express terms per-
to,
responsibility.
So, in
Kentucky, in
when
the covenantor expressly limits

this liability, no such confidence is or
ought to be raised, and the covenantee by acceptance of such a cove-
A covenant by a part owner, to
mit.
the extent of
his share, obviously

binds him no further than to that ex-
tent
Coster
Manufacturing Co.
v.
Manafee v. Morrison, 1 Dana, 208,

where executors covenanted to war-
Green's Ch. (N. J.) 467. In" Wilson v. Cochran, 14 N. Hamp. 397,
rant " to the extent of their assets,"

it was held that the covenant imposed
where a tax
no obligation on them individually,

nor beyond the assets in their hands
at the time of the eviction, and the
previous case of Nicholas v. Jones, 3
A. K. Marshall, 385, was to the same
two
collector had, in pursuance 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
effect.
The
distinction
classes of cases
between
these
may, perhaps, be
616
The Monte
;
Friedly
Allegre, 9
v.
Rawle, (Penn.)
Wheaton,
Scheetz, 9 Serg.
156;
Lowden
&
v.
that in the former, although the intention of the covenantor may appli-
Robertson, 5 Blackford, (Iml.) 276;

Rocksell v. Allen, 3 McLean, 357;
edly appear to be that he intends his

covenant not to bind himself person-
Rogers
yet that unless this intention be

manifested by the most express and
ally,
v.
Horn,
Wilson
Car.) 361
Hamp. 397.
;
v.
Richardson, (S.
Cochran, 14 N.
WHO ARE BOUND
5J4<
AND WHO MAY TAKE
BY,
CHAPTER
WHO ARE BOUND
BY,
XII.
AND WHO MAY TAKE ADVANTAGE
OF COVENANTS FOR TITLE.

IT
is
proposed in this Chapter to consider, in the first

are bound by the covenants for title; or, in
who
place,
arising under them of the covethe rights of the latter in

(and
equity), of the heir, the devisee, the executor or administrator, and the assignee ; and secondly, who may take
other words, the
nantor
liabilities
herein
also of
advantage of them, or the rights of the covenantee, the

heir,
devisee, the executor or administrator,
the
and the
assignee.
Of
the
The
Covenantor.
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

fore already, for the
most
its
breach, that
it
has there-
part, received consideration in pre-
ceding chapters.
l
The
been
liability
created by
cove-
has in some instances,

deemed a material circum-
nants for
title
stance in determining the rights of

parties in the marshalling of assets,
a general and familiar principie of equity, that where a creditor

has a right to elect between two funds,
It is
out of either of which he can satisfy

his claim, he shall not be permitted
so to exercise that right as to disappoint another creditor who has re-
course to but one of them.
In Eng-
land, this principle is perhaps most

as
frequently called into operation
between creditors of the
real
and
ADVANTAGE OF COVENANTS FOR TITLE.

Whenever
contract,
it
founded on privity of
nature, and the covenantor
the action of covenant
is
transitory in
its
personal estate of a decedent. But

as on this side of the Atlantic, lands
are in most of the States
made
assets
As
is
this
vendor and himself, the presence
his
this class of cases
ance to him
is
comparatively a
right on the part of the
purchaser depends, however, wholly

on the nature of the contract between
payment of all debts, whether

due by specialty or simple contract,
for the
575
of covenants for
is
the convey-
title in
deemed a material
cir-
small one, and the principle is applied in favor of sureties, purchasers,
cumstance as evidence of
devisees and legatees, &c. It is only

as respects purchasers that the sub-
R. temp. Sugd. 259, Sir E. Sugden,

then Chancellor of Ireland, said, "
may need consideration here.

Where a vendor sells land which
ject
covered by an incumbrance, for

whose payment he is personally liais
and the contract between himself

and the purchaser has been that the
ble,
latter
is
not to take the land
onere,
it
is
cum
sufficiently obvious that

is not only entitled to
in Averall
v.
this.
Wade, Lloyd
Thus,
Goold's
man
seized of estates
and B, both
subject to a judgment debt, settles

valuable consideration, without
for
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
the purchaser
exonerated, at the expense of the
an indemnity, upon payment of the

incumbrance by him, but also to a
unsettled estate; the judgment binds

both, and where there is a settlement
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 subjecting that land to payment of the in-
cumbrance.
Thus, in the case of
Travers, 6 Paige, (N. Y.)

521, where one of four heirs sold to
the complainant his undivided fourth
Eddy
v.
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.

there is a covenant that the es-
Here
from incumbrances assuming that there was no such covenant, but a mere declaration that the
estate was free from incumbrances,
there can be no doubt that that declaration would throw the incumbrance
tate is free
on the unsettled
estates."
New York of Guion
So, in the
part of his ancestor's estate with a

covenant of warranty, which part was
afterwards sold by the surrogate for
case in
payment of the debts of the decedent,

complainant had
acres of land, and the mortgagor conveys one hundred acres thereof to A,
an equitable
lien
upon the unsold
v.
Knapp,
6 Paige, 35, it was said, " If a mortgage is a lien upon two hundred
the one hundred acres which remains
portion of the estate, and had a right

to come in upon the fund raised by
in the
the sale of that portion under pro-
the debt, and, if that is not sufficient,

the other one hundred acres is next
ceedings in partition.
be
first
hands of the mortgagor, is to

charged with the payment of
WHO ARE BOUND
576
BY,
AND WHO MAY TAKE
be liable to suit wherever process
be served upon
him. But whenever it is founded on privity of estate, as for
example where the plaintiff, as assignee of the land, sues
may
may
upon a covenant which runs with the land, the action is local,
and cannot be sustained unless the land is within the jurisdiction of the Court in which the action is brought.
This
has long been settled law, 1 and in a recent case in Massachusetts where the plaintiff brought an action on a covenant
of warranty given by the defendant upon the sale of land in

Illinois to one under whom the
plaintiff claimed through
mesne conveyances, the plaintiff was nonsuited on

ground of want of jurisdiction, although both he and the
several
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
But
to.
if
has sub-
of evidence of the original conand the principle is equally
way
sequently conveyed one half of his

one hundred acres to B with war-
susceptible of application in
ranty, the fifty acres remaining in

the hands of
is, in
equity, first
where, from other evidence than that

afforded by the covenants, it can be
chargeable with the payment of the

balance of the debt which cannot be
by a
raised
acres that
sale of the
one hundred
belong to the mortga-
still
gor or his subsequent grantee, before

resort can be had to the fifty acres
which
And
A has conveyed with warranty.

A conveys his remaining fifty
ises is still liable for
the balance of
the mortgage debt, and must first be

sold before a resort can be had to the
acres previously conveyed with
to
warranty
"
;
and
in
Gumming
v.
8 Kelly
(Geo.) 482, these
narks were quoted with approval.
lint the presence of the covenant of
Gumming,
IT)
warranty
and
as
Averall
is,
as has
been before
said,
appears from the case of

v.
Wade,
material only by
any case
seen that the purchaser was to take

the land free from the particular incumbrance, Cowflen's Estate, 1 Barr,
(Penn.) 266
Notes to Aldrich
v.
Cooper, 2 Leading Cases in Equity,

where the whole doctrine of marshalling of assets
1
if
acres to C, either with or without

warranty, that portion of the prem-
fifty
tract,
is
carefully considered.
Chitty's Pleading, 270 Mostyn
;
Fabrigas, Cowper, 161, 1 Smith's

Leading Cases Lienow v. Ellis, 6
v.
Mass. 331
White
tell,
Sanborn, 6 N.
v.
Hamp. 220; Birney
r.
Haiin, 2 Lit-
Gray, (Mass.)
(Ken.) 262.
Clark v. Scudder,
122.
It
is
obvious, moreover, that a
judgment once recovered upon one

title,
may be
bar of any subsequent

suit brought upon the sanu- ransc of
pleaded
action
423.
in
Osborne
v.
Atkins, 6 Gray,

The
liability
5JJ
of a covenantor will not be discharged by
his bankruptcy, with respect to such covenants as were not

Thus in a late case in Maine, where
broken at that time.
the defendant,
who had
cumbrances and
sold land with covenants against inof warranty, pleaded his discharge as a
bankrupt after the execution of the deed, it was held that

the covenant against incutnbrances, 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
1
of the covenantor, and in a late case in Mississippi
2
the law was held the same way.
Where, however, the
liability
breach occurs before the defendant
is
actually discharged as
have
may
happened after petithe bankruptcy may be pleaded in bar of the
a bankrupt, even although

tion filed,
action.
l
it
Reed
Pierce, 36 Maine, 4GO.

it was
urged that the
unadjusted till all possibility of a

breach should be barred by the statute
claim upon the covenants came within that clauSe of the bankrupt law
of limitations, for it could not before

such time be known that they might
not arise.
Such a position would be
In
v.
this case,
which permitted persons having uncertain and contingent demands to

prove the same, but the Court held
that the distinction between a contingent demand, and a contingency
whether there ever would be a de-
maud, was well settled by both Engand American authority. " If

the unbroken covenants in a deed, or
lish
the
possible
warranty of
breach of the implied
entirely at variance with the provision of

10, which requires that all
proceedings in bankruptcy shall be

brought to a close within two years
after the decree declaring the bankruptcy, if practicable, for it would
lead to an indefinite postponement of
the settlement of estates."
2
Bush
of personal
property were to be deemed claims
within the statute, then every grantee
612.
or vendee might present his claim

against the commissioner, and the es-
Mills
tate of the
title in sales
bankrupt would remain

49
v.
Cooper, 26 Mississippi,
3 Jemison v.
Blowers, 5 Barb. S. C.
(N. Y.) 686; and see the notes to
Cases,
v.
Auriol,
Smith's Leading
WHO ARE BOUND
578
BY,
AND WHO MAY TAKE
Whether
the liability created by the covenant be joint, or

several, or joint and several, obviously depends upon the
Where an obligation is
it is
expressed.
created by two or more, the general presumption is that it is
1
and words of severance are required in order to con-
terms in which
joint,
fine the liability of the
covenantor to his
own
acts.
Cove-
nants implied by operation of law, as from the word demiserunt, are co-extensive with the interest granted, that is,
3
if a several interest.
if a
joint estate, and several
joint,
Questions have at times arisen as to the liability of a

married woman under covenants for title entered into by
1
Touchstone,
375
Tyler, 16 Maine, 392;
Carleton
Donohoe
lies for
of the covenant by one of the covenantors only, because they are sure-
Emery, 9 Metcalf, (Mass.) 67; Platt

on Covenants, 117, passim. Thus in
v.
Comings
Little,
the coven an tee on a breach
v.'
v.
24
Pickering,
(Mass.) 266, one of two tenants in
ties for each other for the due per1 Wms.

formance of the covenant
;
common mortgaged
Saunders, 154, note."

2
Thus, in the recent case of Evans
of,
v.
his moiety thereand 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" It is

enantors.
objected," said the
u that the covenants of the
Court,
tion of $60, that
and
that the action should have
been brought against the mortgagor
But
alone.
sustained.
Where
more
this objection
The
man
jointly,
cannot be
distinction
is
this.
covenants with two or
and the
interest
and
is,
$15 per share,"
conveyed certain land with a covenant " that each for his separate and
undivided share warrants and will
each separately for his own share
defend," it was held proper to sue
the four separately.
3
defendants are to be taken distributively,
Sanders, 10 B. Monroe, (Ken.)

where four heirs, "in considera-
291,
79
Coleman
v.
Shower,
Mr.
Platt, in
Sherwin,
S. C. 1 Salk. 137.
on Covenants, remarks
that " very few questions have been
agitated whether covenants on the
his
treatise
.part of the covenantors have been

joint, several, or joint and several
;
several, each of the covenantees
the language has generally been sufficient to indicate the intention of the
bring an action for his pardamage, notwithstanding the
parties, and the nature of the covenant in this respect." The question
words of the covenant are joint.

But where two persons covenant
as to the rights of joint covenantees,
cause of action of the covenantees

is
may
ticular
jointly with another, a joint action
is,
however, considered infra.

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
a distinction observed as to her covenants for
having been held in an early case, that

wife grant land belonging to the wife, by
it
if
would appear,
title in
fine,
a husband and
fine,
with a cove-
nant of warranty, an action will lie against her after the

1
husband's death in case of the grantee's eviction.
be accounted for by the high and

solemn nature of a fine, being a proceeding of record, in
This decision
may
whose Judges were supposed to watch

2
But on this side of the Atover the rights of the wife.
is in
where
wife's
interest
the
lantic,
general passed by a
in England, since
form
of
even
solemn
and
less
assurance,
the face of a court,
'
a recent statute has abolished
fines,
and substituted the more
acknowledgment upon private examination which

3
in this country, the
opinion seems to prevail that no
prevails
simple
rule of
law
answer
to
exists
in
by which- a married woman can be bound
damages by reason of the covenants
entered into by her jointly with her husband,

1
Wotton v. Hele, 2 Saunders, 180

C. 1 Mod. 291.
Although the
;
S.
case was stated to be one of the first

" all
impression, the Judges
thought
that the action will lay against the
defendant on her warranty in the

although she was covert baron,
and they did not make any scruple
of it." In Greenwood v. Tiber, Cro.
fine,
although
"
though in this case it may

be said that inasmuch as the wife
was at liberty after her husband's
;
death to disaffirm the lease
if
she had
thought proper to do so, yet that she

reaffirmed it by her acceptance of
rent,
ment
and this point was, in the arguin Wotton v. Hele, " agreed
by
the reservations, cov-
the counsel on both sides," so that

this case can hardly be said to be an
and warranties," comprised

a lease made by husband and
authority for the broad assertion that

a wife will be bound by her cove-
Jac. 563, "
all
enants,
in
by them
for title
wife, of lands of the latter,
were held
good after the death of the husband,

and acceptance of rent by the wife,
" and the lessees and lessors bound
nants for
title,
2 2 List.
3 3
&
515.
4 William IV.
c. 74.
WHO ARE BOUND
580
her
may have
estate
AND WHO MAY TAKE
BY,
hy a proper
passed
acknowledg
ment.
"
The doctrine," says Chancellor

(2 Comm. 167), "that a wife
can be held bound to answer in dam-
Dominick
ages after her husband's death, on

her covenant .of warranty, entered
Griffin v. Reynolds, 17
into during coverture, is not considered by the Courts in this country to
briskie, (N. J.) 541
v. Michael, 4 Sandford's
Ch. (N. Y.) 424 Carpenter v. Schermerhorn, 2 Barb. Ch. (N. Y.) 314
Kent
be law
and
it is
S.) 611
Harwood, 3
Id.
21
291
Colcord
v. Swan, 7 Mass.
Chambers v. Spence, 5
Watts, (Penn.) 406 ) Whitbeck v.
Cook, 15 Johns. (N. Y.) 546 Nash
;
(see
v.
Spofford, 10 Metealf, (Mass.) 192;
Aldridge
Burlinson, 3 Blackford,
" She
may be influenced
v.
(Ind.) 201.
or persuaded," said Parsons, Ch. J.,

"
in Fowler v. Shearer,
by her hus-
band
execute the deed with him,
to
knowing
but she
effect as
its
not
may
And
an alienation
the nature or
covenants contained in
effect of the
it.
know
to hold
her liable on the
covenants cannot be necessary to the

conveyance nor be beneficial to her
be greatly
but
her
to
Call,
arising from supposed
her deeds are as binding upon

But
if she were a feme sole.
tion,
seems not to have been generally

considered, even supposing the case
of Wotton v. Hele to be sound law
it
(which we have no right to doubt

when we consider the solemn nature
and the peculiar
effect
Hump.
has
been
v.
Wadloigh
1H; Lowell
u.
frequently
Glinos,
Daniels, 2
6
(
N.
ray,
(Mass.) 168 Jackson v. Vanderheyden, 17 Johns. (N. Y.) 167 Martin

;
V,
1)
welly,
Wendell, (N. Y.) 9;
effect of
a fine at
common
was
law,) that a similar effect

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 paxtlntj
the estate as a fine,
doctrine held in
ill-Mini;
free-
her as
the covenants in the deed, except,

perhaps, so far as they may operate
by way of estoppel, and even this
latter
want of
of will on the part of the wife

are removed by her private examina-
force
prejudice."
covenant for
dom
may
The rule, therefore, has
never extended to make her liable on
family
394, the specific
wife's
further assurance was decreed, on

the ground that as all objections
6 Clarke, (Iowa,) 137;
performance of a
Desmarest, 1 ZaSchaffner v.
v.
see supra, p. 433.

In the early case
in Virginia, however, of Nelson v.
certainly contrary
by contract
Sumner v. Wentworth, 1 Tyler,
Sawyer v. Little, 4
(Verm.) 43
Vermont, 414 Wadleigh v. Gaines, 6
N. Hamp. 1 7
Fowler v. Shearer,
Den
Grutzmacher,
to the settled principle of the common law, that the wife was incapable
"
of binding herself
Howard, (U.
and
but not the same
effect generally.
If in
any
States these acknowledgments are endued with this sweeping efficacy, the
Wotton
v.
Hele would
appear to give effect to the wife's covenants for title. The effect of NY1son
v.
Harwood
was, however, sub-
sequently completely destroyed by a

legislative enactment in that State to
the
rffi-rt
" that
no covenant or war-
ranty contained in any deed executed

has
It
been
mentioned, in
581
preceding chapter, that

on behalf of
although, as a general rule, equity will refuse,
a covenantee, to decree the specific performance of covenants

for
and
title,
will leave
him
to his
at law, yet that,
remedy
will be granted upon principles

exceptional cases, relief
1
On the other hand, there have been
of quia timet.
cases in which, upon the application of a covenantor, a
in
somewhat
similar jurisdiction has been invoked with suc-
cess.
3
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
The purchaser
title.
by any feme covert shall in

manner
any
operate upon her or her
hereafter
had, however, in
thus placing a restriction upon the

covenants of a, feme covert, the infer-
heirs further than to
ence would seem to arise that the
ally
covenants were deemed of some va-
convey effectufrom such feme covert any right
of dower or other interest in real estate,
which the said feme covert may
be entitled to at the date of such

redeed," Act of Dec. 20, 1814
;
enacted in 1819, and in substance in

7 ; Code of Virginia,
similar statutory provisions
exist in the States of Illinois, Indi-
1849,
514
c.
99,
and
In
Michigan and Missouri.
Delaware, the statute of conveyan-
ana,
ces (Revised Laws of 1829,) declared

that "such deed shall not bind her
to
any warranty except a special

warranty against herself and her
and all persons claiming by or
under her " and in the revision of
1852, these words have been re-enheirs,
the addition, "and no

covenant on her part, of a more extensive or different effect in such
deed, shall be valid against her." It
acted, with
may be
proper that such covenants

should enure by way of estoppel, and
Delaware statute
may have meant no more but by
it
is
possible the
49*
lidity,
which seems
most of the
1
Supra
In
to
be denied in
States.
p.
154
et seq.
v. Watts, 3 Mar(Ken.) 268, a covenantor filed

a bill for relief against a judgment
McKinney
shall
obtained against him, at law, upon

his covenants, and for the
quieting of
the title, which was sustained, prinit would seem, on the
ground
of the purchaser having received, on
his eviction by the holder of the
par-
cipally,
amount
title, allowance, under the

occupying claimant law, for improvements, 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 reversed.
3
Chipman
Connect. 488.
u.
City of Hartford, 21
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 bill against
the city, praying that it disclose the grounds of the claim
and the amount of the lien, if it existed, and upon payment
thereof, release the premises therefrom
be enjoined from prosecuting
or, if invalid, that
the city
Upon reference
to a Master, he reported that the lien was invalid ; whereupon it was urged, on behalf of the city, that if the lien
were void on its face, equity would neither interfere to set it
it.
that the comnor enjoin an attempt to enforce it

at
law
for
the contract
plainants had an adequate remedy
if the lien were invalid, there could be no
price, to which,
aside,
having sold and conveyed

the property, had no longer any interest in it, which equity
But these objections were overruled by the
could protect.
defence
and that the
plaintiffs,
Court, and a decree entered for the complainants.
Sec passim, 2 Story's Eq. Jurisp.

a, for the distinction between
the plaintiffs had a right to suppose

from some other cause or reason, than
voidable instruments whose existence
the records here produced, disclosed,
has a tendency to cast a cloud upon

a title, and those of which the illegal-
This claim, whether legally existing

or not, worked an injury to the plaintiffs, by creating such a doubt as in
700
appears upon their face, and can

admit of no doubt.
2 In answer to the first
objection,
ity
the Court held, that although it had

been decided in some cases, that
where the mere object of 'the bill was
the cancellation of an instrument
void on its face, equity had refused
to interfere, yet that this case was dis" This bill
tinguishable from those.
does not ask for the bare cancellation
The city of Hartford had

instituted certain prootfcdings, wMoh,
they claimed, had resulted in fixing
of a deed.
a lien upon the property of the plaintills; it insisted upon the lien, and
fact to cause purchasers under them

In this state
to withhold payment.
of things, the plaintiffs could, indeed,
have sued Smith and Brainard, and

have been met with some defence, or
by an application for an injunction
and
against their further proceedings,
thus become involved in an cxpenor they
sive litigation in the dark
could ask, as they have done, to have
;
..Aside
tins cloud cleared away.
from any discovery sought, this bill
the
l>ut
is not merely
<]nin (iinct,
claim of the defendants is working a
.
present injury, by actually prevent-
583
So, in a late case in Georgia, the complainant, having

sold land with a covenant of warranty, averred in his hill,
was combining with a
that the defendant
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 purchased 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

ing purchasers from making payment
red to the
of the stipulated price to the plaintiffs, by reason of the cloud upon their
their
2 Story's Eq.
700.
In the
case of Simpson v. Lord Howden, 3
Mylne & Craig, 99, an action at law
title
was pending, to try the same question

and in the case of Piersoll v.
Elliot, 6 Peters, 98, the same question had been already determined;
but here the plaintiffs were left in
the dark and in doubt because the
;
defendants
lien,
and yet
enforce
tiffs
still
it.
to the
insisted
instituted
They have
upon their
no means to
left
the plain-
expense of determining
way, and by
their rights, only in this
and now, not until the

county court, upon this hearing, has
decided that no such incumbrance
this bill
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

to bring us into a
no just occasion
court of equity.
is,
that as, after
Indeed, the defence
an expensive and
long-defended application in equity,

the plaintiffs have succeeded in establishing their claim, this
is
the very
they are not entitled to
reason
why
relief.
If the defendants
had demur-
title
by conveying
bill at first,
acknowledging
want of a lien, their defence
would have appeared better."
In
answer to the objection that the plaintiffs had a
remedy, at law, against
their purchasers, it was said, that
apart from the ground, that such an
one to the jurisdicmade at an
earlier stage, yet that it had no foun-
objection, being
tion,
should have been
dation in this case.

plaintiffs
against
"
Besides, the
had no remedy,
these
defendants.
at
We
law,
are
not aware of any case, which decides,

that, if the plaintiff has an equity
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
against
stranger or some other person." And

answer to the objection, that the
in
plaintiffs,
having conveyed the land,

which equity could
had no
interest
protect,
it
was
they did not
said,
own
that
the land
although
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

It was obvious, that
in their deeds.
their interest was as direct, as if they
then held the land.
WHO ARE BOUND
584
BY,
AND WHO MAY TAKE
him, and that the ejectment be enjoined.

Upon demurrer, the Court below dismissed the bill, but this was
to
reversed on error, and

entitled to the relief
it
was held
for.
prayed
that the complainant
was
New
2
Hampshire, the Court seemed
to be of opinion that
although it might be doubtful whether
one, who had no other interest in land than his liability on
In a recent case in
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

So, in a late case in Mississippi, the
could be sustained.
complainant had bought at sheriff's sale certain land which

had been entered by the debtor at the land-office.
He
sold
this
with
for
land
covenants
title to one
subsequently
1
311.
Red wine v. Brown, 10 Georgia,

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, however, the law has long been well settled, see supra, p. 357,
"
said, in
conclusion,
satisfied, that in case
owner should
ground of mistake
in the original preparation 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
and the Court
the ground that the evidence had by

no means substantiated the charge of
We
mistake.
are well
the
present
lose this land,
he would
In Taylor
v.
Gilman, 25
Vermont, 411, the Court sustained a

bill filed
by a covenantor
to restrain
be entitled to go back upon the complainants, upon the covenant of war-
covenantee from suing on the covenants for title, not on the ground of
ranty to Dominick, and that, consequently, he is rectus in curia, as
accident or mistake in the insertion
complainant in the bill, seeking to

have the incumbrance on the title
removed."
Bush
v.
Keller, 2 Carter, (Ind.) 79,
bill was filed

by a vendor, to prevent his vendee from suing on the
covenants for title, or from setting
thorn up by way of defence to payment of the purchase-money, on tho
his
of the covenants themselves, but of

fraud on the part of the latter in
seeking to enforce them in opposi-
agreement between
and himself; see suSee as to the reforma-
tion to a distinct
the covenantor
pra, p. 130.
tion in equity of the

title,
248.
covenants for
supra, p. 129.
Brooks
v.
Fowle, 14 N. Hamp.
whom
against
585
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
On demurrer, the Court below disagainst his vendee.

missed the bill, but this was reversed on appeal, the Court
being of opinion that the complainant, being bound to protect 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
1
complete relief.
But a court of equity will not draw to itself a jurisdiction of which courts of law have cognizance, unless there
be some mistake, accident or fraud, which would deprive the
party of a defence in that tribunal ; and in a recent case in
Wisconsin, a vendor who had sold land with covenants for
against his vendee, (who had sued him upon
covenants,) and the heirs of a prior vendor of the
title, filed
those
bill
land, alleging the loss of the deed from that vendor, and
praying that the latter might be perpetually enjoined from
that the purchaser be
setting up any title to the premises
decreed to have no cause of action against the complainant

and that he be enby reason of the supposed defect of title
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 la\v
that there had been no
;
fraud, accident or mistake

1
Huntingdon
v.
which would make
it
against con
Grantland, 33 Mississippi, 454.
WHO ARE BOUND
586
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-
and that proof of that loss

1
could he as well supplied in a court of law as in
equity.
plainant's defence to that suit,
Second.
Of
the Heir.
The
liability
(whether immedi-
ate or ultimate) of the heir by reason of his ancestor's covenants for title, depends, in this country, to a great extent,
upon the statutory provisions adopted
in the different States,
making the real estate of a decedent

ment of his debts, although as respects
for
liability,
there
now no
is
between the covenants
liable for the
pay-
the source of this
difference either in
England or
here,
and any other specialty conThe examination of this subject strictly forms no
tracts.
for title
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
requisites necessary at
pressly
1
named
v.
Rogers
a.
on an
heir, there
law.
First, that he be ex-
so that in an action against
him
were two
as heir,
it
Chandler,
no party in esse who could be called

on to avouch the title. It was an
In the recent
unusual covenant, but that could not
Cross,
(Wise.) 34.
2 Co. Litt. 209
case of Rufner
liability
common
M'Connel, 14 Illinois, 169, the vendors covenanted

that their heirs and executors would
warrant and defend the premises, and
it was held that no action of covev.
nant would
lie
against the covenantors themselves. The covenant,
it was said,
exempted the grantors
help the
plaintiff.
The presumption
was that the grantors refused to be-
come personally
responsible for the
were willing
to charge their estates in the hands
of their legal representatives, and
that the grantee preferred to accept
failure of the title, but
such a covenant rather than have
personal liability, but bound

their descendants in respect of the
that
estate that might be cast upon them,

postponed the remedy for a failure
parties that the grantors should warrant and defend the title, and that a
of the
mistake was made in the preparation

of the deed, but that could only be
verified in a court of equity, (supra.
from
It
title
until
the decease of the
grantors or one of them, and until

such an event transpired, there was
none
it
at
It might be, however,

all.
was the real intention of the
587
was necessary that it should he averred that he was named

and this, as we have seen,
in and hound hy the ohligation
was the rule as to the ancient warranty. 1 In the second
;
it was
necessary that the heir should have assets by
descent sufficient to meet the demand, and he was bound by
place,
the warranties, covenants, or other specialties of his ances2

tor, only to the extent of these assets.
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
3
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
4
the assets by descent were liable to be taken in execution.
which being done, the action
might be brought against the grantors,
and breaches assigned on the cove-
p. 129),
nant.
Brooke's Abr. " Garranties,"

89; supra, p. 469.
1
pi.
Buckley v. Nightingale, 1 Strange,

Thus it
665, 2 Blacks. Comm. 243.
was obviously held in Hart v. Thompson, 3 B.
Monroe, (Ken.) 485, that
heirs of their mother's
not be
made
estate
to pay, out of
it,
could
dama-
by a breach of their
father's covenants for title, and the
law was held the same way in Urqu-
ges
caused
hart
v.
See
also
Clark, 2 Randolph, (Va.) 549.

Platt 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

on a bond of his ancestor,
in Virginia,
but decided (on the authority of that

familiar class of cases of which Penn
v.
Lord Baltimore,
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 purpose, on proof of such assets, decree
an account thereof by the heir, towards the satisfaction of a covenant

of warranty made by the ancestor.
In Beall v. Taylor, 2 Grattan, (Va.)
it
532,
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
4 Sir
12 a
Edward
Wm.
Davy
I. c.
18.
3 Coke,
Pepys, Plowden, 441.
Harbert's case
v.
WHO ARE BOUND
588
The
BY,
AND WHO MAY TAKE
was, that the bond creditor had, after his
result
debtor's death, a greater security than the judgment creditor ; for the latter, by reason of his judgment, charged the
No
heir only as tenant of the land.

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
West-
statute of
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,2 while on the bond
debts, the creditor could, at his election,
ment, have execution upon
all
by a
judg-
special
the lands in the possession of
the heir.
tvarrantia 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
3
separate actions against them at the same time, so that an
heir could not plead in an action brought against him, that
4
there was an executor who had assets.
Nor was
common
there, at
bond debts and covenants,

heir to be sued
come
law, any distinction between
either as to the liability of the
upon them, or the right of the covenantee,

5
nor,
upon the assets as a specality creditor
other specialconsequently, between covenants for title and
to
Harbert's case, supra
v. Rivitt,
in
W.
Stileman
v.
Ashdown,
Bowyer
Jones, 87.
2 Atkyns,
608.
Plumer
Abr. "Assets per De-
scent," pi. 33,
Com. Dig. Pleader,
E. 8
v.
Quarles
2,
Capell, Benloe, 96
Dyer, 204 b.
* Gallon v.
Hancock, 2 Atkyns,
426
Davy u. Pepys, Plowden, 441
S. C. 2
Quarles
v.
Capell, supra ; Davies

3 Levinz, 189.
Churchman,
v.
Burr,
ing, Willes,
8 Brooke's
Marchant,
v.
1384; Godolp. Orp. Leg. part 2, c.

28 Went. Ex. 146 Dyke v. Sweet-
585
Wms. 131
Ves. & Beames,
1
P.
Benson
Musson
197
v.
Benson,
v.
May,
Jenkins
v.
Bry-
603
Watson
ker, 6 Beavan, 283
Frazerv. Tunis,
ant, 6 Simons,
Binhey, (Penn.) 254.
v.
Par-

1
ties,
nor was
it
589
was hroken
amount
material whether the covenant
before or after the covenantor's death, provided the

2
of the damages was liquidated.

But although the heir was thus hound hy his ancestor's
bonds and covenants when named in them, and to the extent
of the assets, yet if, before suit brought, he had aliened
the lands which he had inherited, the creditor was without
remedy.
The
" statute of fraudulent devises"
was no doubt
in-
with respect to the

ancestor's specialty debts, but perhaps also as to his covethis mischief, not
only
tended to remedy
of that statute, after reciting that

heirs-at-law, to avoid the payment of such just debts,
nants, as the
many
fifth section
as in regard to the lands descending to
them they had be-
come liable to pay, had aliened such lands before process

was or could be issued against them, declared that the heir
should be answerable for such debts, in an action of debt, to
the value of the lands so aliened, unless they had been bond
fide aliened before suit brought.
l
Cruise,
"
66
Deed," ch. 20,
Higginbottom v. Corn well, 8 Grattan,

(Va.) 86; Gannard v. Eslava, 20
Alabama, 732. In the case of Earl of
Hath y. Earl of Bradford, 2 Ves. Sen.
587, one
who had received a cove-
nant for quiet enjoyment, and whose

damages were liquidated by a recovery against the executor, was held
by Lord Hardwicke to be a specialty
In Giles
creditor.
v.
Roe,
2 Dickens,
570, the same was applied to a cove-
nant for
seizin,
and
in
Parker
v.
Eq. Ca. Ab. 460, and Fergus v. Gore, 1 Schoales & Lefroy, 107,
to a covenant against incurnbrances.
Harvey,
In the recent case of Lovcll
v.
Slier-
win, 2 Equity R. (23 Eng. Law

Eq. R.) 534, the deed contained
the covenants for
title.
50
&
all
2 Cox v.
King, 9 Bcavan, 533
Hervey v. Audland, 14 Simons, 531
Lomas r. Wright, 2 Mylne & Keen,
769 Eardley v. Owen, 10 Bcavan,
;
see supra, p. 158

Davis v.
Stultzfeos's
Smith, 5 Georgia, 285
Appeal, 3 Penn. 265.
572,
Plunketv. Penson, 2 Atkyns, 290

v.
Pepys, Plowd. 439.
Davy
4 3
and 4
Will.
& Mary,
c. 14.
Before the passage of the statute

of frauds (29 Car. II. c. 3), descended trust estates were not assets
in the
hands of the
que
trust
But that
heir.
statute provided that if
any
cestui
should die, leaving a trust in
fee-simple to descend to his heir, the

trust should
descent,
and
be taken
to
be
assets by
by reason
and amply as
the heir liable,
of such assets, as fully
WHO ARE BOUND
590
But however
BY,
this section
may have
tect as well a covenantee as
that
its
AND WHO MAY TAKE
provisions were not deemed
For, in the
that purpose.
1
Knuhley, and Farley
been intended to pro-
a specialty creditor,
first
seems
it
sufficiently explicit for
of
place, the cases
Wilson
V.
Briant, though based upon another section of this statute, to be presently referred to, held
v.
that the provisions of this section, which are, in this respect,

very similar to that just cited, applied to debts and actions
of debt, and could not receive so liberal a construction as to

include covenants ; in the second place, it was not uncommon
to find, in English conveyancing, a bond to secure the performance of covenants, on which, as is seen in many of the
3
cases, actions of debt will lie, which practice has been in-
he might have been, if the estate in

law had descended to him by possession, in like
scended.
manner
work on Covenants,
"
as the trust de-
Mr. Baron
p.
Platt,
in
his
^51, remarks,
right of action against the heir,

in respect of such assets by descent,
cannot,
it is
apprehended, be defeated
his alienation of the estates prior
by
to the
commencement
legal proceedings
for
itself,
if
un-
the death of the cove-
nantor, would not be a lien upon his

real estate, that a bond for the per-
formance of such a covenant might

be a lien. Such an opinion, howIn Godolever, seems not tenable.
phin's
28,
it is
Orphan's Legacy, part 2, c.

said " But executors (under
:
pretence or color of recognizances
the charge once
for the peace or

good behavior, or
the like, or under pretence of statutes for performing covenants touch-
benefit of the covenantee or his rep-
made
at
or pending
of,
attaching will, it is supposed, continue in operation against him and

his personal representatives, for the
resentatives, until
a covenant
although
broken
compensation be
any breach of the cove-
nant committed during the lifetime,

or even after the decease of the an-
ing the enjoying of lands not forfeited,

nor any sums of money possibly ever
thereupon becoming payable,) are

not to withhold payment of debts by
specialty,
creditors
and thereby defraud the

;
so that if the statute or
a 3
recognizance be only for performance of covenants, and no covenant

be broken, an obligation for the pay-
3 It
ment of present money
cestor."
l
East, 128.
Adolph. & Ellis, 83D.

may be supposed that there
an; also reasons which, in this coun-
seem to point out the propriety

of taking a bond for the performance
of covenants ; on the ground that
try,
shall be dis-
but the passage

merely refers to the duty of the executor as to not withholding payment
charged before
it,"
on such pretences.
591
generally supposed, in order to bring the case

within the letter of the statute ; and thirdly, in a recent
1
it is
troduced,
1
which was intended to amend and supply the defects

" liable
the statute of William
Mary, after the words
statute,
in
&
"
" or
is inserted,
perform the covenants,"
pay the debts
"
" debt or
and the word " covenants
is introduced after
to
"
debts
The
wherever
it
occurs.
which appears to exist between the

English and American law as to the liability of an heir on
peculiar difference
his ancestor's covenants for
covenant
no
is
upon
does not become one after
and
as in
title, is, that,
England the
his real estate during his
lien
case no action
his death, until action
life,
so
it
brought
brought, or if, before such action,

the heir bond fide alien the land, the purchaser will take it
clear of liability, whether the covenant be broken before or
in
is
after the covenantor's death.
1 1
William IV. c. 47, often called
Sir E. Sugden's Act.
2 These statutes will be found in
Ram on Assets, 213 in the notes to

Jefferson v. Morton, 2 Saunders, 7,
and in the notes to Silk v. Prime, 2
;
If the alienation be a fraudbut
if
such proceedings are not taken,
the heir or devisee
may alienate, and
hands of the alienee, whether

upon a common purchase or on a settlement, even with notice that there
in the
arc debts unpaid, the land is not

though the heir or devisee re-
Leading Cases in Equity.

3 The law is thus stated in the
liable,
note to Silk
of the value of the land alienated;
Prime, 2 Leading
" Neither debts
Cases in Equity
in
which
the heirs are
by specialty
bound, nor simple contract debts,
v.
even since the 3

104
&
4 William IV.
c.
mains personally
Richardson
123
v.
liable, to
Horton,
Mylne &
Pimm
Beavan, 112,
Cr. 268, 269
on Vendors, 834, 835

Timbell, 8
the extent
Sugden
Spackman v.
;
Simons, 259, 260; but
Hare, 193, where

was held that creditors would not
593,) constitute a lien

or charge upon the land, either in
the hands of the debtor, or of his
be defeated by the marriage
heir or devisee.
of an infant heir-at-law."
(i/f/ra, p.
Notwithstanding the
existence of such debts, the debtor
himself
may
alienate
thf3
land.
By
taking proper proceedings, the creditors, both by specialty and proper

obtain
may
payment out of
the descended or devised real estate
contract,
in the
hands of the heir or devisee
see
it
Isall
v. Isall, 7
articles
Pimm
r.
went, however, upon the ground
that the marriage articles in question

were not binding upon the wife, who
had died without having done any

act to confirm them, and hence that
the real estate of her ancestor de-
scended to her heir discharged from
WHO ARE BOUND
BY,
AND WHO MAY TAKE
ulent one, though the

purchaser's title will still be secured
to him,
the
heir
will
he liahle out of his own estate to
yet
the value of the lands thus aliened
not heen aliened at

sion, he will he
common law and by
and
if the
lands have
still remain in the heir's

possesthe extent of their value, both by
hut
all,
liable
to
and the covenantee
statute,
may
sue the
heir or the executor, at his election.
In the United States,

rule, lands are liable for
it
may
be said that, as a general
the debts of a decedent, whether
due by matter of record, specialty, or simple contract. In

the two latter cases, the existence of the debt creates no
lien
during the debtor's
estate,
By
his death,
changed, and they become a
is
quality
life.
which descends
lien
however, their
his real
upon
to the heir or passes to the devisee,
subject to the payment of the debts of the ancestor, accord1

ing to the laws of the State in which they are situated, and
the rights of the creditor can, in most of the States, be
enforced against the lands in the hands of a bond fide pur2

chaser, within certain statutory limitations as to time.
But although
application
States.
By
might sue
this
may be the general principle, yet in its

modified by the various local laws of the
the common law, as we have seen, a covenantee
this
is
it
either the executor or the heir, at his election, but
has been altered by statute in
many
States,
and
in
them
the liability of an heir on the covenants of his ancestor is a

contingent one, depending upon the inability of the cove-
nantee to procure satisfaction out of the personal estate. 3

the articles,
and subject to their origpay the debts of tho
inal liability to
ancestor.
i
63
Watkins
4 Kent's
Gore
Richard
S.)
v.
Holman, 16 Peters,
Comm.424
2 Hilliard's
Brazier, 8 Mass. 523;
Ci-ailY. Smith,
v.
;
Williams, 7
Griswold
v.
Webber
v. Webber, 6
Grecn(Me.) 136 Ilutchinson v. Stiles,
3 N. Hamp. 404
Roc t. Swezey, 10
Barb. S. C. (N. Y.)247; Stuart v.
Kissam, 11 Id. 271; (sn- Ilaynes*.
Colvin, 19 Ohio, 396 ;) Boyd v. Ann-
leaf,
v.
59
Bijrelow, 6 Connect. 268.
Abr. 539.
a
(Penn.) 244
Wheat on, (U.
Morris's Lessee
Dallas. (Prim.) 481;

v.
Smith,! Yeates,

It is not,
however,
my
purpose to enter into
593
this interest-
ing subject of the liability of real estate for the debts of a

It is one almost exclusively local in its applicadecedent.
tion,
and
common
it
be sufficient to have briefly referred to the

and pointed out the sources whence fuller in-
may
laxv,
formation
derived with respect to
may be
Yerger, (Tenn.) 40 and

Berrell, 12 Mass. 399,
where the heir was sued on the an1
strong,
in
Boyd
v.
covenant for title, the plaintiff was nonsuited on the ground that
cestor's
application had not been first made

to the personal estate through the ad-
Ch.
J.,
Rawle,
The remark
of Gibson,
in Fritz v. Evans, 13 Serg. &
that " in
ministrator.
14,
Pennsylvania,
lands being in all eases assets for the

payment of debts, only the executor
can be sued," would seem to apply

where lands are
to all other States
thus
made
assets in the
hands of the
executor, and in them the immediate

liability of the heir by an action of
covenant against himself would seem

to be taken away.
As to his ultimate
the statutory provisions are,
different parts of the country,
liability,
in
In many States,
widely different.
the land can be summarily taken in
execution in the hands of the heir

or devisee,
upon a judgment thus
be
its alteration.
let in to contest the
original grounds,
claim on
its
Murphy's Appeal,
& Sergeant, 165 Atherton

Atherton, 3 Barr, 113.
1 It
may, however, be observed,
that in tracing the course of legisla8 Watts
v.
tion in the different States, they will
be found greatly in advance of EngThe

lish legislation on the subject.
old feudal doctrines, which to prevent the alienation of real estate,
it with fines and restraints,
cumbered
gave place,
when a new
state
of
society demanded that the right of

alienation should be unfettered, to
an immunity of real
estate,
which
protected the purchaser at the expense of the creditor, and the legislative
provisions which, until
very
recently, existed, were inadequate to

regulate the equal interests of both,
and
was not until the year 1833,

by the statute 3 & 4 William
IV. c. 10-1, freehold estates were
it
that
made
payment of
assets for the
sim-
Craft,
and all will reple contract debts

member the anxious and untiring
efforts of Sir Samuel
Komilly to
Bcnncr v.
Serg. 4G5
Phillips, 19 Id. 13 Keenan v. Gibson,
9 Barr, 250,) but has since been alter-
bring about such provisions sixteen

years before that time, and the clamor which was raised in opposition to
ed in that State, and a
it,
obtained against the personal repreThis was formerly the

sentative.
law
7
in
Pennsylvania, (Payne
Watts
&
r.
"
the heirs and devisees, with notice to
the heir's right

to the effect that
to the real property of his ancestor
ought not to be disappointed by the
the terre-tenants, who, notwithstanding the judgment against the personal
by
quare executio non
is
scire facias
now
representative, will, in
directed to
some
50*
cases,
claims of creditors."
This was said
good a lawyer as Sir William

Grant.
See the remarks of Sir S.
so
WHO ARE BOUND

Third.
Of
BY,
AND WHO MAY TAKE
Much
the Devisee.
of what has heen said
as to the liability of the heir will equally apply to that of

Romilly in his Autobiography, vol. 2,
389, and also, Campbell's Lives of
the Chancellors, vol. 7, p. 266.
On the other hand, from the earliest
settlement of some of the
Amer-
ican colonies, the doctrine of the liaof a decedent's lands to the
bility
payment of his debts, whether due

by matter of record, specialty, or
simple contract, has been said to have
grown up with the law. In many of
them, the death of the debtor changed

and a purchaser
his debts into liens,
or a devisee stood in those States, as
no better position
Mor-
in Pennsylvania, in
than the vendor or the testator
Smith, 1 Yeates, 244.

In a few only of the colonies is this
believed to have been otherwise. It
ris's
Lessee
v.
has been assumed by authority entitled to respect, that real estate
is,
in
In North Carolina, a statute passed

in 1715, declared
that
creditors of
any person deceased should make

their claim within seven years after
the death of such debtor, other-
wise such creditor should be forever
and the opinion had been

more than once expressed in interbarred
preting this statute, that its words,

being without any saving or exception whatever in favor of
any inca-
were so express as even to

exclude claims on which the cause
of action did not arise until after
pacity,
had expired
M'Lellan
Conference Hep. 479 Jones
Brodie, 3 Murphey, 594
Rayner
that
time
v. Hill,
v.
v.
in
Watford, 2 Devereux, 339.
Godley
v.
But
Taylor, 3 Id. 178, the
question presented was whether a

covenantee, evicted after the expi-
liest-settlement of the colonies, liable
ration of seven years from the death

of the covenantor, was deprived of
for the debts of the ancestor in the
his claim against his estate,
general,
and has been, from the
ear-
hands of his devisees, his heirs, and

bond Jide purchasers from them 4
Kent's Comm. 420 2 Milliard's Abr.
;
559
Watkins
(U. S.)
Holman, 14 Peters,
63; Bergin v. McFarland, 6
>;.
Foster, (N. H.) 536

statute 5 George II.
but in fact the
c.
expressly
declared that lands, &c., in all the
American colonies, should be assets
7,
payment of debts. In Pennsylvania, there were many statutes to

for the
this effect prior to the
year 1 705, to
which a reference may be found in
the note to 1 Smith's Laws, 9, and the
Appendix
to
Peter Miller's edition of
Acts of Assembly, published in
762,
and the dissenting opinion of Kennedy,
J., in
Watts, 81.
Bellas
v.
McCarthy, 10
and it
was held that he was not that the
legislature could not have meant to
;
exclude a claim that might arise
fuluro, and which could not be enforced until it did arise or accrue.
In connection with
case of Booth
v.
this subject, the
Starr, 5
Day, (Con-
nect.) 275, may be here mentioned.

The estate of one who, some
years
before his death, had conveyed land
with covenant of warranty, was
represented to be insolvent by his
administrators, and commissioners
were appointed by the Court to reeei\e the claims of creditors, which
were-
to
months.
be
The
presented within six

estate turned out to
be solvent, and the commissioners

reported a balance in the hands of
595
At common law, he was not hound hy the

covenants of his testator, nor could the lands be followed
the devisee.
the administrators after
payment of
Court that the limitation for exhibi-
was conclusive as to the extent and amount

of the administrator's liability, and
this, whether the estate was solvent
administrators,
having then lawfully devested themselves of every part of the estate,

could not be
made
liable for future
and that it was immaterial

whether the claim did or did not
claims,
exist within the specified time.

reasoning is," said Brainard, J.,
"My
who
delivered the opinion of the Court,

" that as the claim was not exhibited
and as
was within no saving, therefore it
until after the time limited,
barred.
exists,
must
The
claim, therefore, if
it
is
it
must be against the heir, who

be the proper person to
also
contest
it.
... It does not appear, in
this case, that the heir received
any
estate of inheritance from his ancestor,
and, therefore, he cannot be
ble, in
scent.
lia-
regard to assets real by deThe daughter, in one sense,
heir to the covenant of warranty

a covenant real, on which as such,
is
as she has received
no estate or
may be
difficult."
One holding an unbroken

covenant of warranty could not, he
said, be designated in the statute as
tion of claims of creditors
the
it
sary.
above facts in bar, to which the plainIt was held by the

tiff demurred.
that
reach
able dissenting opinion of

Mitchell, Ch. J., renders any other
comment on this decision unneces-
Two years after this,

the covenantee was evicted, and sued
the administrators, who pleaded the
not
to
The very
testate's heir.
or
equity of the claim seems to point.
But
presented debts and claims, which

was paid to the guardian of the in-
all
in-
heritance she cannot be liable, for

the heirs intended by the deed are
a creditor neglecting to present his

claim, and the Court could not have
allowed
The
if
it,
he had presented it.

show-
statute of Connecticut, he
ed, created a joint fund of the real
and personal estates, and made both

assets in the hands of the administrathey also required a refunding
tor
be given to him by the heirs,

purpose of a security for all
claims against such estates to the
bond
to
for the
amount of
personal.
all the assets, real and

" This bond can never be
forfeited if the administrator
is
not to
be accountable for debts afterwards

arising. ... In the mean time, the
bond of the administrator

Court of Probate has been
by a
to
the
fulfilled
and
bond for the
bond or secu-
distribution of the estate,
the acceptance of this

heir and as no other
;
rity for
from the
such creditors
heirs, the
is
required
property which
the law intended to guard and preserve for the heir's benefit, may be
squandered with impunity, and without any remedy."

Subsequently,
however, a petition in Chancery was
same case (5 Day, 411),

on the hearing of which, the Court
filed in the
law, but under our

statute of distribution, she has re-
held that although the claim against

the administrator might be barred,
yet the petitioner's right was not ex-
ceived the surplus estate of the covenantor. To this, in her hands, the
tinguished, and the assets were held

liable in equity in the hands of the
heirs at
common
596
WHO ARE BOUND
in his hands.
AND WHO MAY TAKE
BY,
In this respect he enjoyed an even greater
immunity than the
heir
ancestor's covenants,
was
for the latter,
which had descended
to
clear of all liability.
It will
when named
amount of
liable to the
in his
the assets
him, but a devisee took the land

be remembered that an heir
cannot strictly be said to take also as devisee, as the familiar

rule applies that one taking the same estate in quantity and
quality under his ancestor's will, which he would do as his
heir by operation of law, shall be adjudged to take by de-
scent and not by purchase, and the lands
would be
liable if
not aliened.
To
prevent the injustice of a devise depriving a specialty

creditor of a means of satisfaction, the second section of the
statute of fraudulent devises,
reciting that
many
persons,
having bound themselves and their heirs, had died

seized of lands, and to the defrauding their creditors had
devised the same, so that the creditors had lost their debts,
after
declared that
all wills,
&c., should be taken, as against such
In the subseheir or his guardian.

Griswold
v. Bigelow,
of
case
quent
6 Connect. 259, a
was evicted
covenantee who
thirty-four years after
the estate of his covenantor was distributed after the usual proceedings
and limitations of time for the exhibition of claims, raised
an adminis-
tration de bonis non, exhibited the
claim to the Court of Probate, which

was allowed, and the personal assets
being exhausted, an order was grant-
ed for the sale of the real estate,

which was accordingly sold in the
hands of a bond fide purchaser, and
these proceedings were confirmed by
ment of
and no
the administrator,
appeal having been taken by the

devisees and other parties in interest
from the decree of that court, as respected the allowance of the claim,
and the order of
sale, it
was held
that that decree could not be

inquired
into collaterally, and the
only
queswas, whether the lien on

the land of the decedent still contion, then,
tinued
it
did,
the Court had no doubt that

and that the distribution or
of the estate could not
alienation
affect
it
in
any way.
From
in the administrator's deed,

his
a defect
however,
vendee was held not entitled
to
Supreme Court of that State, in

an able opinion by Hosmer, Ch. J.,
and there seems to have been no
question made of the jurisdiction of
recover in ejectment,
1 Plunkett v.
Penson, 2 Atkyns,
204 Plasket v. Beeby, 4 East, 491.
the Court of Probate in the appoint-
Supra,
the.
23^4
p.
William
589.
& Mary,
c.
14
597
and their executors, &c., to be void and of no

and the third section gave the creditors a right of
action upon their specialties against the heir and devisee
creditors
effect
jointly,
and the devisees were made
same man-
liable in the
ner as heirs, notwithstanding alienation by them.
But
in
Wilson
v.
Knubley, although
it
was
said
by Lord
that the grievance recited in the preamble of
Ellenborough
the statute would have led one
to
suppose that the legislature
meant to give a larger remedy than the action of debt, yet

the Court felt themselves bound by the letter of the statute,
which spoke only of debts and actions of debt and in an
action brought against the devisee of one who had given
covenants for title and died without heirs, judgment was
;
given for the defendant, though it was agreed that the case
came within the mischief intended to be remedied by the
come
The
point that there being no heir, the case did not

within the letter of the statute, which gave a remedy
statute.
against the heir and devisee jointly, though mentioned in

the argument, did not form a basis of the decision ; but
2
a somewhat recent case,
in
was expressly held
it
that a
specialty creditor could not maintain an action against the

devisee alone, there being no heir.
So it was further held,
applied only where a

word, existed between the
in the construction of this statute, that
debt, in the ordinary sense of the
parties in the lifetime of the debtor,
it
and therefore that an
against the heirs and devisees of a

surety for breaches of covenant which did not occur in his
lifetime, even though the damages upon the occurrence of
action of debt did not
lie
such breach were liquidated, so that in form they might be

sued for in an action of debt. 3 The statute of fraudulent
devises has, however, been
&
7 East,
amended
3
134.
r.
Sheldrake,
Hunting
Welsby, 256.
Mees.
839.
in these deficiencies
Farley
v.
Briant, 3 Ad.
&
by
Ell.
WHO ARE BOUND

the Act of 1
Geo. IV.
of 1 Will. IV.
c. 4<7,
BY,
AND WHO MAY TAKE

1
soon after supplied by that

which expressly includes covenants as
c.
47,
well as debts, and also gives an action against the devisee

2
alone where there is no heir.
In the recent case of Morse
Tucker,
v.
the question
testator cove-
presented was of general application.

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
who having pleaded plene administravit, the plaintook judgment of assets quando acciderunt, and had his
damages assessed upon writ of inquiry, and then filed a bill
the lessor,
tiff
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
Wilson
Knubley and Farley v. Briant,

constitute a debt within the meaning of the will, but ViccChancellor Wigram declared that he would be inclined, in
the decisions in
v.
the absence of authority, strongly to lean against that construction of the will which would exclude .the claim in ques-
He
tion.
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
Wilson
cision in
2
y.
caused by the de-
and the Vice-Chancellor held that
Knubley.
the devisees were liable to pay it, on

the ground that the sums to be re-
convenient reference to these
statutes
may be had
in the notes to
Morton, 2 Saunders, 8 a,
and in those to Silk i>. Prime, 2 Leading Cases in Equity.
Jefferson
3 5
4
v.
Hare,
As
liriant,
testator
79.
also the
(j
case of Jenkins
Simons,
granted
an
bound himself by covenant

it.
v.
where the
annuity, and
603,
to
pay
It fell into arrcar after his death,
were fixed and certain,

was said, distinguished the
case from Wilson v. Knubley, and
covered
which,
it
Farley
v.
Briant.
It
was, therefore,
urged on behalf of the devisees in

Morse v. Tucker, that when the
amount was not thus fixed, being
unliquidated damages,
be said to be a debt.
it
could not
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 consideration 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
though the
will so as to
by
title
He
make
his guarantee valueless,
turn out good for

was ruled
to the property should
thought, moreover, that the case
nothing.
by the authority of the Earl of
Bath
v.
the Earl of Brad-
2
ford, and also by that of Lomas v. Wright, where ViceChancellor Leach had held, that persons entitled to damages
1
enjoyment had a right
for a breach of the covenant for quiet
come
to
under direction
the
upon the proceeds of property sold,

a will, for the payment of debts ; and
referred to a Master to inquire into the
in as creditors
case
was
in
amount of damage sustained by

Fourth.
Of
the
their eviction.
The
Executor or Administrator.
lia-
from that of the heir, in that

bility of an executor differs
while the latter is not bound by his ancestor's covenants,
unless
former.
named in them, a contrary rule prevails as

Nor does any distinction prevail between
Yescy, Sen. 587, supra,
p. 589,
2 2
3
Mylnc & Keen,
The
775.
the
lia-
provided by the testator for the pay-
ment of
note,
to
the
* "
debts.
And
therefore
if
man
bind
however, being
volunteers (claiming under a volun-
himself by obligation or covenant to

pay money, or to do any such like
tary settlement for illegitimate children, see supra, p. 159), were held
not entitled to compete with simple
thing,
plaintiffs,
and do not bind
his executors
or administrators by name, in this

case the executor or administrator
be sued and
contract creditors for valuable con-
may
sideration, but, as against the devisees of the debtor, they were held
for forth
may be charged
as
"
entitled to stand in the place of mort-
were named
Touchstone, 482 Brooke's Abr., Covenant, pi. 12; Wentwortli's Execu-
gagees who had exhausted the fund
tor, c.
as if they
pp. 239, 243, &c.
Nor
is
WHO ARE BOUND
600
BY,
AND WHO MAY TAKE
of an executor upon covenants broken after the testa1

tor's death, and those broken before that event.
bility
this liability of the
executor confined,
as the above quotation might
seem
to
to pay
imply, to mere obligations
"
money, but it extends to any obli-
158, which might be thought
Pull.
authorities against this position, will,

on examination, be found to have
been decided upon another ground
covenant or
gation, contract, debt,
other duty," Wheatley v. Lane, 1
In the- very resupra, p. 384.

cent case of Williams v. Burrell, 1
Saunders, 216, note; Com. Dig. CovPlumer v. Marchant,

enant, C. 1
3 Burrow, 1380; Siboni v. Kirkman,
Com. Bench, 401, which was well

and elaborately argued, an action of
covenant was brought against exec-
Mees.
&
Welsby, 419, except such
as are of a particular personal character. Instances of these may be found

in 2
Williams on Executors, 1469,

v. Cocke, 10 Adolph.
and Wentworth
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
have been resolved
said to
that if one covenant that his execu-
utors, for a breach, after the testator's
of a warranty entered
death,
by him, and no question was

made, on the argument, of the liaexecutor depending
bility of the
upon the breach happening before
or after the testator's death
and
from a remark made by Maule, J.,
into
in the course of the argument, the
point seems not to have been over" Here the heir

looked, as he said
:
pay ten pounds, no action

will lie against them, for it was no
debt of the testator, and therefore
could not survive. But Lord Mansfield said, in Plumer r. Marchant, 3
Burrow, 1380, that this was an exand the contrary
traordinary case
has been recently held, in Randall v.
Rigby, 4 Mees. & Welsby, 1 30, and Ex
So with
parte Tindall, 8 Bing. 402.
being named and the executors not,

it may be contended that the latter
respect to the covenants for title in

Wells v. Fydell, 10 East, 315, one
covenantor
485, note.
In the recent case of Mc-
who had
Clure
tors shall
received a covenant for
quiet enjoyment was evicted after

the death of the covenantor, and no
question seems to have been made of

the liability of his executor, although
the covenant had not been broken in
the
lifetime
cases of
257
a,
Proctor
low, 214,
C56, and
v.
v.
to
be excluded."
The
however, was argued and decided upon other grounds, and Tin-
case,
dal,
Ch.
J.,
said,
"
Upon
and authority we think
principle
an ex-
this
press covenant for quiet enjoyment,

and consequently that the defendants
are liable thereon as executors of the
v.
"
see this case, supra, p.
Gamble,
3 Casey, (27
Penn.
State R.) 290, the Court said, " This

is an action on a covenant of warin which the grantor covenanted 'for himself and his heirs,'
and it is argued that under such a
ranty
The
covenant the executors are not bound,
Stranslmn, Dyer,
but the heir only. It is thought because the </raiitor expressly included
his heirs in the covenant, he has im-
of the testator.
Swan
were intended
Johnson, 2 Brown-
Adams r. Cibney,
Andrew v. Pierce, 1
(>
Jin;/.
Bos.
&
pliedly excluded his executors, but
601
The liability of an assignee

Of the Assignee.
for title entered into by his assignor, is one
covenants
upon
which can never arise where the deed which contains the
Fifth.
as in such case the

covenants conveys an estate in fee-simple
from
the
and
land passes at once,
possession of the
entirely,
;
vendor,
who
has, therefore,
quent purchaser.
ity
may
arise
no estate
to transfer to a subse-
But
where
the question of an assignee's liabilthe conveyance is of a leasehold estate,
and the covenants are then held binding upon the assignee
of the reversion.
not follow, for by binding

himself he binds his estate, so far as
this does
it
represented by his executors,
is
whereas the heir could not be bound

without express terms, and this accords with
Williams
common law
v.
And
Com. Bench, 402.
Burrell, 1
the heir
is
contribution by preferring the action

against the executors or administrators."
In
Hovey v. Newton,
ering, (Mass.) 421,
it
1 1
Pick-
was held that
breach of the covenant for quiet enjoyment, which had

accrued both before and after the
covenantor's death, could be recov-
damages
for a
ered in one and the same action

against his administrator, the Court
" The whole
damage sussaying,
tained by the plaintiff's from the
breach of the covenant of the intestate
becomes a debt against his eswhich the defendant is an-
tate, for
swerable."
that, in the
And
it
is
well
settled
absence of local statutes
to the contrary, a
certain
covenant
for quiet
enjoyment, for further assurance, or

of warranty, is in no respect differ-
which it imany other specialty debt,
sum
of
pay a
money, which though
payment might be subsequent to the death of the covenantor,

yet would create a valid claim against
the time of
his executor.
Where, however,
if
the only one found

as heir by such a covenant, the law
would lean in favor of equality of
at
as for instance, a covenant to
case of Collins
v.
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 plene
adtninisiravit,
and showed
at the trial
that the entire assets, including the

consideration-money, had, before the
breach complained
of,
been applied
payment of simple contract

debts, and it was held that the executrix was not bound to retain the
to
the
proceeds of such sale for the purpose of indemnifying against future

breaches
of
ridge
v.
See
covenant.
Wyse v. Snow, 5
Irish Jur.
Me Kane,
87
also
Wild-
Molloy, 122.
SeeTlmrsby v. Plant, 1 Saunders,

23 7, and notes. It has been held otherwise, however, where the covenant is
one of indemnity merely, and assigns
named in it Doughty
ent, as to the liability
not
poses, from
11 Queen's Bench, 452.
51
recent
the
in
Crouch, 13 Queen's
v.
Bowman,
In the re-
WHO ARE BOUND
602
BY,
AND WHO MAY TAKE
Having" thus considered the
liabilities,
we
next approach
the subject of the rights arising under the covenants for

title.
First.
the Covenantee.
Of
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
1
they are made, it follows that immediately upon the execution of the deed which purports to convey the estate, a
right of action upon these covenants enures to the party who
has received them, upon which his damages will be real or

nominal, according to the injury which the defective title has
2
upon him.
would also seem
visited
It
to follow, that after the
lapse
of
twenty years from the execution of the deed, the commonlaw presumption that these covenants had been satisfied or
released
would
arise,
even
if
they should not come within
4
With reenactment upon the subject.
for
to
the
covenants
quiet enjoyment, for
spect, however,
any
local statutory
further assurance, and of warranty, a statute of limitation,

cent case in
New York
of
Buck
v.
which last case it was held that

and satisfaction was the
proper plea upon which to found
in
Bininger, 3 Barbour's S. C. 403, it

was obviously held that the purcha-
accord
ser of a remainder, expectant upon

the determination of a lease for life,
such a defence,
which was a covenant for quiet

enjoyment, could do nothing to inter-
390
enjoyment of the life

estate by the tenant, and the case
seems to have been put on the ground
(Ark.) 368; Webber v. Webber, 6

Greenleaf, (Me.) 138; Pierce v. JohnIn the late
son, 4 Vermont, 255.
of preventing circuity of action but

the more natural reason would seem
bers
to be that the purchaser simply took

the estate subjeet to the tenancy.
for
in
fere with the
Sec
sujirn, p.
342
et seq.
Supra, pp. 73, 134 et seq.

Stewart v. West, 2 Harris, (14
Penn. State R.) 338, 839 Heath v.
3
Whidden, 24 Maine, 383

v.
Jenkins
Hopkins, 9 Pickering, (Mass.) 544,
;
Clark
120,
v.
Rev.
Swift, 3 Metcalf, (Mass.)
Stats, of Massachusetts, c.
7; Bird
v.
Smith, 3 English,
case in Missouri, however, of
Cham-
Smith, 23 Missouri, 174, it

was held that the statutory covenant
v.
seizin implied from the words

"grant, bargain and sell" was not
barred by reason of not having been
presented within three years from

the death of the covenantor, as that
covenant was, in that State, held t>
run with the land. See supra,
p. 341.
603
would not begin to

expressed as such statutes usually are,
actual
an
been
run until there had
breach, and of course the
from that
presumption would not arise until twenty years
1
period.
The
or sevquestions arising as to covenants being joint

eral, have already been noticed as respects the liabilities of
the covenantors.
remains, however, to consider them
It
with respect to the rights of the covenantees.

It has been settled from an early day that covenants for
title
be
(and the same
construed as joint or several, according to the interest taken
rule applies equally to all covenants), are to
they are made, or in whom the right

Thus in Slingsby's
to take advantage of them has vested.
by the
3
parties to
which
case,
is
whom
generally cited as the leading authority, where
the defendant granted to four, although he covenanted

"
that he was seized in fee, yet
each and every of them
held that
all
must join
in
" with
it
was
an action on the covenant, 4 and
this
%
1
383
Heath
v.
Whidden, 24 Maine,
Stewart
West, 2 Harris,
(14 Penn. State R.) 338 9 Jarinan's
;
v.
by indenture demises
to
Ablackacre,
whiteacre, to C greenacre, and

covenants with them etquolibet eorum
Conveyancing, 402.
2
the covenant several in respect of

their several interests.
As if a man
to
Supra, p. 578.
Coke, 18.
3 5
that he
4 " It
appeared by the plaintiff's

own showing in his declaration, that
the plaintiffs only cannot maintain
acres, in that case, in respect of the

said several interests, by the said
an action of covenant, but the other

covenantees ought to have joined in
nant
the action with them, notwithstanding

these words et ad et cum quolibet et
these words
qualibet eorum, for as to these

this difference
words
was agreed, when
it
appears by the declaration that every

of the covenantees hath, or is to have
a several interest or estate, there,
when the covenant is made with the
covenantees,
these words
et
cum
cum
quolibet eorum,
quolibet eorum,
make
words
is
et
is
raises to
lawful
owner of all
the said
cum quolibet eorum, the covemade several but if he de;
them the acres
cum
jointly,
quolibet
then
eorum are
man by his covenant, (unrespect of several interests,)

cannot make it first joint and then to
void, for a
less in
make
like
it
several
words cum
by the same or the

quolibet eorum, for al-
though sundry persons may bind

themselves et quemlibet eorum, and so
the obligation shall be joint or several
at the election of the obligee, yet
WHO ARE BOUND
604
BY,
AND WHO MAY TAKE
principle has been since recognized in
many
Mr. Preston, however, expressed an opinion
other cases. 1
that
by express
words, clearly indicative of the intention, a covenant
might
be joint or several, notwithstanding the nature of the inter2

and some dicta in recent cases in the Exchequer, in
est,
3
approval of this, have been sometimes considered as causing a difference of decision between that tribunal and the
On
Queen's Bench. 4
man
examination of the cases themselves,
cannot bind himself to three and
make
to each of them, to
the
several at
election
joint or
of several
it
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,
Saunders,
Spencer v. Durant, Comberbach, 115; Saunders v. Johnson, SkinScott i'. Godwin, 1 Bos. &
ner, 401
153;
Pull. 67
1
Anderson
Lane
v.
Martindale,
Drinkwater,
Rose. 599 ;Brad-
East, 497;
v.
Crompt. Mees. &

burne v. Botfield, 14 Mees. & WelsFoley v. Addenbrooke, 4
by, 559
1
covenant in language purport
and
that,
by express words, clearly
may
or with the covenantors or covenan-
notwithstanding the interest is

so they may be several, al-
tees,
several
though the interests are
The
lows
import corresponding to the interest,

so as to be joint when the interest is
and several when the
several covenants, that eminent lawyer, Sir Vicary Gibbs,
assumed that
covenants must necessarily be joint or

several, according
The language
interest of
action
interests.
Wherever
was,
parties
may be
to
the-
is
the
separate, the
several, notwithstand-
ing the terms of the covenants on
which it is founded may be joint

and when; the interest is joint, the
;
action
must he
joint,
although the
interest
is
several, notwithstanding language

which, under different circumstances,
effect.
opinion thus expressed is as fol" On the

subject of joint and-
But
or are left to the interpretation of

law, will be, that the words have an
would give
Touchstone, 166 (Preston's ed.)
joint.
the implication or construction of

law, when the words are ambiguous,
24 Pickering, (Mass.) 266

578.
2
indi-
intention, a covenant
be joint, or joint and several, to
cative of the
joint,
supra, p.
be
great deference, however, the correct rule is,

several.'
Queen's Bench, 197; Hopkinson v.

Lee, 6 Id. 964; Carthrae v. Browne,
3 Leigh, (Va.) 98 ; Comings v. Little,
;
to
With
joint
to the
covenant a different
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 opinion expressed by Mr. Preston. The
covenant, was to and with Jonathan
his heirs, &o.," and alto a
;
605

however,
will he
it
1
and the
found that there

result of all
is
no
real conflict of
perhaps he
where the interest is joint, the covenant can
never he joint and several, that is, the covenantees can never
authority,
thus stated
the cases
may
have the option whether they

distinct covenant
and
with
Ann
to
Caroline Hogg, her heirs," &c., and

Lord Denman, after referring to the
often-affirmed case of
Anderson
v.
Martindale, 1 East, 4 9 7, (where there

was a covenant with J. Anderson to
pay him an annuity, and also to and

Wyatt to pay the said annuity to Anderson, which Lord Kenyon held, on the authority of Slings-
with E.
shall sue jointly or severally,

If they are still law, the prescases.
ent case must be decided against the
We
plaintiff.
see
no ground
for
doubting whether they are."

1
Indeed, in the case of Bradburne
v. Botfield, 14 Mees. & Welsby, 559,
Mr. Baron Parke thus refers to the

strictures by Lord Denman, in Hopkinson
v.
Lee, supra, of the remarks
by's case, to be a joint covenant, say-
made by Lord Abinger and himself

" The
in Sorsbie v. Park.
Court of
ing,
" the covenant to both was for the

same thing, and though the benefit
was only to one of them, yet both had
Queen's Bench," said the learned

"
Baron, in the case of Hopkinson v.
have
Lee,
supposed that Lord Abin-
a legal interest in the performance of

it, and therefore the legal interest be-
ger and myself had sanctioned some

doctrine at variance with the case of
ing joint during the lives of both, on

the death of one, it survived to the
" The
in An-
by's case,
which
intention,
and
other,") said,
derson
v.
language
Martindale, as entirely con-
covenant to the plaintiff, and

makes another separate covenant with
E. Wyatt, as any words not directly
fines the
exclusive can
make
it.
In Slingsby's
was with certain
persons named et ad et cum quolibet
et qualibet eorum.'
No words can be
stronger to give the plaintiff an option to sue all jointly or each sepaYet in both, the Court held
rately.
case, the covenant
by reason of the joint interest

in the subject-matter of the suit, as
disclosed in the deed itself, the action
that
must be
joint.
We
be waste of time
words
'
as
to
think
it
would
argue that the
a distinct covenant
'
do
not furnish any stronger inference of

the intention to exclude, than those
just
cited
from those
well-known
51 *
Anderson
v.
Martindale, and Slingsit
was far from
my
have no doubt from
Lord Abinger's,
to
do
it
being fully
by those cases,
that one and the same covenant cannot be made both joint and several
established, I conceive,
with the covenantees.

to observe, that
It
may be
fit
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 inare several, is inaccurately
terests
expressed
ors,
and the
it is
true only of covenant-
cases cited from Salkeld,
them ; probably Mr.

Preston intended no more, and never
p. 393, relates to
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
;
WHO ARE BOUND
606
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
which
several, a covenant
by one covenantee
Where
alone.
form may be sued upon
joint in
is
the benefit of a covenant of warranty has de2
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,
rately, at his election.
or each may,
think
it
right to give this explanation,

that there
in general to sue jointly or severally
may not be supposed
it
any difference on this point with

the Court of Queen's Bench." In
Keightley v. Watson, supra, moreover, it expressly appeared on the
is
face of the instrument that the parties had a separate interest, so that
the Court decided
it
be a sepa-
to
covenant, both in accordance

with the words and the interest.
rate
James v. Emery, 8 Taunton, 245
Withers v. Bircham, 3 Barn.

254; Servante v. James, 10
New
Palmer
R. 743
Harrold
v.
Grang.
Whittaker, 11 Queen's Bench, 161
v.
Sharp
*
Conkling, 16 Vermont, 355.

v. Horwood, 10 Bing.
Decharms
526
Tapscott
v.
Williams, 10 Ohio,
Midgley y. Lovelace, Carthew,

289 Powis v. Smith, 5 Barn. & Aid.
850 Henniker v. Turner, 4 Barn.
;
&
Cress.
4
v.
&
lf>7;
Paul
Witiuan,
v.
:5
Serg. (Pa.) 407.
Midgloy v. Lovelace,.s M/?ra; Swett

Fairfu-l.l, (Me.) 181;
and
it
was unreasonable
pose the warrantor, on eviction of the
warrantee,
pay,
how
is
ready and willing to

he to ascertain the pro-
is
portion to which each of the devisees

is entitled, when the
portions of the
real estate devised are of unequal
to as
Is the
many
Although,
warrantor to be liable
suits as there are lu'irs V
as
between
themselves,
are several, yet as

the
warrantor,
they hold a
respects
such may sue
joint interest, and as
their
interests
Patrick, a
a point not without difcontract was made with
subject the warrantor to as many actions as there were devisees.

Sup-
value ?
443.
Watts
is
The
ficulty.
that he should be at liberty by devising the land in separate parcels, to
Sparshott, 4 Scott's
Mills v. Ladbroke, 7
218;
a joint suit
the testator
410;
v.
&
Man.
tween cases where it is said tenants

common may, and where they must
3
join or sever. In Paul v. Witman,
Watts & Serg. (Pa.) 409, it was said,
"Whether the plaintiffs can sustain
in
Id.
depends upon the subject of the action and the interest they have in it,
and the student must distinguish be-
& Cress.
Story v. Richardson, 6 Bing. N. C.

129 Poole v. Hill, 6 Mees. & Welsby,
835
seems, sue sepa-
Walford on Parties to Actions, 423,

passim ; Broom on Parties to Actions,
27. The rightof tenants in common
Mr. Preston's doctrine, to which the

I
Court of Queen's Bench objects.
that
it
jointly.
fit,
Of this,
as
it is
for his bene-
the warrantor could not complain.

Second and Third.
the
Of
607
Heir and Devisee.
It
has
of an heir depended, among

liability
1
In
other things, upon his being named in the covenant.
the case of the ancient warranty, the same rule was applied
been seen that the
Unless
as respects the right of the heir to sue.
the warranty, he could not take advantage of
named in
2
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
terms
in
and
has been further
it
suggested that such covenants might, in general, be construed to run with an estate of inheritance to the heir, un-
When
a joint interest
either
by the
is
parties or
created,
by act of
law, the covenantees cannot sever in

the action. And the reason assigned
is, that if several were permitted to
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
bring distinct actions for one and the

same cause when the interest is joint,
the covenant was intended to assure
the Court would be in doubt for which
with remainder over, all those who

were entitled to the remedy, must
join in the action, (as to this, see
of them to give judgment

Slingsby's
case, 5 Co. 19; 1 East, 500. That
;
all
the hefrs should join in the
suit,
but justice to them as well as the

covenantor, for they are equally en-
is
titled to the
money.
Devisees
may
money between themselves, and why compel them to bring

separate suits when it is to their
apportion the
advantage, as well as the warrantors, that the suit should be joint ?
Whether
separate suits will not
lie,
became vested
in a tenant for
"We
supra, p. 356).
regard
life,
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,
was decided only that
different owners may properly join."
in that case,
1
2
3
it
Supra, p. 586.
Co. Litt. 384 b; supra,
Lougher
v.
p. 587.
Williams, 2 Levinz,
may, perhaps, be doubtful, since the
92
decision of
on Covenants, 517. See

the able argument of Mr. Gifford, in
Barn.
is
&
Twynam
Aid. 105.
v.
Pickard, 2
In that case
ruled that covenant will
lie
it
by
the assignee of the reversion of part
367
Sacheverell
;
v.
Froggatt, 2 Saund.
Platt
Kingdon
357; 4
v.
Nottle,
Id. 53.
Maule & Selw.
WHO ARE BOUND
608
less
BY,
AND WHO MAY TAKE
an evident intention be manifested to confine them to
the covenantee. 1
The
however, of an heir to take advantage of the

covenants for title which his ancestor has received, depends,
right,
throughout the greater part of this country, upon the nature

of those covenants ; as it has been seen in a former chapcovenants for seizin, for right to convey, and
against incumbrances, are held to be broken as soon as
2
made, and thereby turned into choses in action, incapable
ter, that the
of transmission or assignment.
suit upon these covenants can, therefore, only be maintained by the personal
Hence it has been somerepresentative of the covenantee.

what generally said that these covenants do not run with
but as thus stated the proposition is scarcely accurate, as all the covenants for title run with the land until
the land
breach, and the difference between the
American and the
is, that according to the former, the

covenants for seizin, for right to convey, and against incumbrances, are held to be broken as soon as made ; while ac-
English authorities
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 prospective in their operation,
and not
to be
broken
an evic-
until
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-
Although from some expressions in the

8
4
cases of Kingdon v. Nottle, and King v. Jones, it would
seem to have been thought that the modern covenants for
cestor or testator.
title,
like the ancient warranty,
descended as to their
Roc
v. Hayley, 1 2 East, 464.

Supra, p. 342 et seq.
* 5
Taunton, 418
3 i
Maule & Selw. 355
p. 337.
;
supra, p. 338.
benefit,
see supra,

upon the
GOQ
time at which the hreach
heir, irrespective of the
took place, yet such a doctrine has heen since corrected,1

and it is now well settled that where the hreach 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
common, hoth of whom were evicted, and one of them

afterwards died, it was held that the right survived, and
that the action was rightly hrought hy the other covenantee
in
the whole
Where, however, the

hreach occurs after the death of the ancestor or testator, the
right of action must be exercised by the heir or devisee, on
for
whom
the
sustained.
damage
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, personal 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
which could have been taken advantage of by the
See Raymond v. Fitch, 2 Crompt.

& Rose. 588 Ricketts v. Wea-
Mees.
ver, 12 Mees.
&
Welsby, 718
Wai-
ford on Parties to Actions, 368.
the recent case of Young

7
v.
In
Raincock,
Com. Bench, 310, which was
elab-
orately argued, the eviction having

taken place during the lifetime of the
purchascr, no objection was taken to

the action having been brought by
his executor.
If the point had been
considered as at
is
all
an open one,
it
probable that the objection would
have been made.
See
title
testator
this case, su~
pra, p. 509.
2
Townsend
v.
Morris, 6
Cowen,
(N. Y.) 123.

3
v.
Tapscott
442
Grist
Williams, 10 Ohio,
Hodges, 3 Devereux,
(N. Car.) 201 South v. Hoy, 3 Monroe, (Ken.) 95 Pence's Heirs v. Du;
v.
vall's
Heirs, 9 B. Monroe, (Ken.) 48
Williams
v.
Hogan, Meigs, (Tenn.)
187.
4
Beddoe's Exrs.
v.
Wads worth,
21
610 WHO ARE BOUND
AND WHO MAY TAKE,
BY,
ETC.
or intestate
during his lifetime, and which were broken before his death.
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
Fifth.
taken advantage of by the assignee of him who had received

2
but "if a man make a lease for years
the word
it;
by
concessi or demist (which implies a

covenant), if the assignee
of the lessee be evicted, he shall have a writ of covenant." 3
So with
respect to the warranty and the covenant
"
expressed in words
Regularly," says Coke,
warrant land to another, and his heirs, without
:
vouch ;
signs, his assignee shall not
"
"
if
when
man
naming
as-
but with respect to a
covenant the rule was different, and the assignee could take
5
The right, however,
advantage of it though not named.
of an assignee to take advantage of covenants entered into
with one prior to himself in the chain of title, depends upon
circumstances, which have been attempted to be ex6
plained in a former chapter.
many
Unless in such a case as that of
Townsend
v.
Morris, supra.
2 "If a man make a feoffment
this
word
dedi,
by
which implies a war-
his labor,
and employed
his cost
upon
the land, and be evicted (whereby

he loses all), that he shall take such
and grant as
and the lessor
hath no other prejudice than what
benefit of the demise
ranty, the assignee of the feoffee shall

not vouch." Spencer's case, 5 Coke,
the
16.
his especial contract with the first

lessee hath bound him to."
Spencer's case, 4th resolution

" For the lessee and his
assignee hath
:
the yearly profits of the land, which

shall grow by his labor and
industry,
for
is
an annual rent
reasonable,
and therefore
when he hath
it
applied
6
ct
first
lessee might,
Co. Litt. 884 b.
Spencer's case, 3 Coke, 16.

See supra. Chapter VIII. p. 352
seq.
THE PURCHASER'S RIGHT TO RECOVER,
CHAPTER
611
ETC.
XIII.
THE PURCHASER'S RIGHT TO RECOVER BACK OR DETAIN

THE PURCHASE-MONEY AFTER THE EXECUTION OF THE
DEED.
THE
between the rules which govern the revendor and purchaser before and after the execution of the deed
while the contract is still executory, and
distinction
lation of
after
it
is
executed
is
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
1
Much
objection
admirers of the
civil
is
made by
law
the
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,
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 purchase," 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
and
hence, although the

vendor will not be allowed to praclength
tice
artifice for the
purpose of
concealing defects, or to make such
representations as may have the effect
any
demand,
yet,
of throwing the purchaser off his

guard, yet, on the other hand, where
the means of information as to the
and circumstances
affecting the
subject of sale, are
equally accessible to both parties, and
neither of them does or says anything
facts
value
of the
impose upon the other, the disclosure of any superior knowledge which
to
one party
may have
over the other,
not requisite to the validity of the

there being no breach of
contract
is
any implied confidence that either

party will not avail himself of his
superior knowledge, because neither
party reposes such confidence, unless specially tendered or required."
Atkinson
134.
on
Marketable
Titles,
612
THE PURCHASER
while the contract
RIGHT
executory, they recognize and entitle clear of defects
is still
force the right of the purchaser to a
and incumbrances, 1 and
has been often said, is

origin upon the terms of the con-
this right,
one not depending for its

tract, but is given by the law
cases, is
for title
it
nor, except in particular

the nature and extent of the covenants
it affected
by
which the purchaser
is
to receive.
But when
the deed of conveyance has been delivered, a

4
different rule applies.
The contract is then executed, and
any inconsistencies between
its
original terms
and those of
general, to be explained and governed

the latter, into which the former is merged, and
the deed, are, in

solely by
by which the
1
See supra,
parties are thereafter to be bound,
p. 562.
Throughton, 1
Ves. Sen. 86 2 Sugden on Vendors,
419 Johnson v. Johnson, 3 Bos. &
Pull. 162
Cripps v. Reed, 6 Term,
606
Roffey v. Shallcross, 4 Madv.
Throughton
;
dock, 227; Dalby v.Pullen, 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,
329 Minor v. Edwards, 12 Missouri,
137 Kent v. Allen, 24 Id. 98 and
;
see supra, p. 562.

3
The
exceptions to this proposition
where
a purchaser makes a chancing bargain and relies on the covenants he

is
to receive for his protection ; Lord

Leonards says, " If a purchaser,
St.
before executing the articles, has notice of an incumbrance, which is contingent,
and
it is
by the
articles agivi-il
that the vendor shall covenant against

incumbrances, tint purchaser h;is en-
tered into them with his eyes open,

has chosen his own remedy, ami
equity will not
assist
him
and he
Vane
Vendors, 420.
v.
Lord Bar-
nard, Gilbert's Eq. R. 5, which is the

authority cited, was not strictly a case
it arose
of vendor and purchaser
under a marriage settlement. See
;
Clarke
4
v.
The
Faux,
3 Russell, 320.
distinction
that there are
is
many
a familiar one,
cases in which
equity would have refused to decree

a specific performance of the contract, yet
which, being executed,
refuse to disturb;
will
are, perhaps, peculiar ones, as
and the
cannot, therefore, detain any part of

the purchase-money."
2 Sugden on
Twining
it
v.
Morrice, 2 Brown's Ch. 326 MortCadman

v. Buller, 10 Ves. 308
;
lock
18
v.
Homer,
v.
Lucas, Id. 335

1
burgh,
&
Jac.
Pike, 2 Drury
on appeal, 8 Cl.
v.
mour
Gans
37
10
Brocksopp
Clermont r. TasWalk. 1 20 Vigers
Id.
& Walsh, 1
& Fin. 562;
;
S. C.
SeyDelancey, 6 Johns. Ch. 230 ;

v. Renshaw, 2 Barr, (Pcnn.)
y.
Story's Eq. Jurisp.
206.
Howes v. Barker, 3 Johns. 506

Hough taling v. Lewis, 10 Id. 297
5
(Jriliith
(N. Y.)
r.
Kempshall, 1 Clark's Ch.

571
Bull v. Willanl, D
;
613
TO DETAIN PURCHASE-MONEY, ETC.
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
a purchaser's right
court of law or equity,
to
relief,
is,
title
and
whether administered by a
on both sides of the Atlantic, a
1
This has been settled by a
necessary and intimate one.
In Buckhurst's
series of decisions from an early period.
was held
that if one seized in fee convey without

" the title
papers pass to the grantee, because he
warranty,
The case, however,
is to defend the land at his
peril."
case,
it
generally cited as the early leading authority on this point,

4
Maynard's case, where Lord Nottingham is reported to

have said, " He that purchases lands without any covenants
is
or warranties against prior titles, if the lands be afterwards

evicted by an eigne title, can never exhibit a bill in equity
have his purchase-money again upon that account ; possibly there may be equity to stop the payment of such purto
chase
as
money
is
behind, but never to recover what
is
paid;
mends no man's bargain."
for the chancery
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
Weaver, 1 Rawle, (Pa.) 377

Ludwick v. Huntzinger, 5 Watts &
Shontz v. Brown,
Serg. (Pa.) 51
v.
3 Casey, (27 Penn. State R.) 131,

except in some cases, certain collat-
eral
and incidental covenants which
after the execution of the deed, the
contract
executory as to such
is still
part of the purchase-money as is unpaid, and the absence or presence of
covenants which include the defect

is
immaterial,
2 1
3
Coke,
1.
Hodges
v.
are not merged in the deed

Colvin
v. Schell, 1 Grant's Cases,
(Penn.)
226 ; Cox v. Henry, 8 Casey, (32
ing, (Mass.)
Penn. State R.) 20 Carr

2 Duer, (N. Y.) 25.
2 Freeman, 1
S. C. Rep.
temp.
Finch, 288, and Appendix to 3 Swan-
as
Except
will
be
v.
Roach,
in Pennsylvania, where,
hereafter
52
shown, even
Saunders,
475
1 7
Redwine
v.
Picker-
Brown,
10 Georgia, 311.
4
ston, 651.
614
THE PURCHASER
RIGHT
of the most settled principles of the law of vendor and

purchaser, 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,
1
as against his vendor, either at law or in equity.
i
Urmston v. Pate, (1794,) reported in 4 Cruise, 394 (4th edit.) and
2 Sugden on Vendors, 425, cited by
Lord Loughborough in Wakeman v.

Duchess of Rutland, 3 Ves. 235;
Johnson, 3 Bos. & Pull. 162; Soper

v. Stevens, 14 Maine, 133
Butman
;
v.
Hussey, 30 Id. 266
mond,
bot
v.
found a mortgage among the pa-
Falconer
Dec. 151
and assigned
value, covenanting that
neither the testator nor himself had
pers
it
of his testator,
for
full
done any act

gaged
to
encumber the mort-
The mortgage turned
estate.
out to be forged but as there was

no evidence that the administrator
;
knew
of
this,
Lord Mansfield held
that the purchaser cauld not recover
back what he had paid. The admin" did not covenant for the
istrator
Elmendorf, 5 Id. 79 Carr

v. Roach, 2 Duer,
(N. Y.) 20; Burwell v. Jackson, 5 Selden, (N.
Y.)
36 Miles v. Williamson, 12 Harris,
kauff
v.
Earle
to look to the
This case, though
recognized as correct in this applicamust be considered as confined
tion,
to this application alone
see Price
v.
Neale, 3
Maryland, 178; Harris
Maryland Ch. Dec. 533
v.
Beale
v.
658
Commonwealth
Sieveley, 8
Leigh, (Va.)
v.
McClana-
Sutchan, 4 Randolph, (Va.) 482

ton v. Suttcn, 7 Grattan, (Va.) 238
Butler v. Miller, 15 B. Monroe,
;
(Ken.) 627 Allen v. Hopson, Freeman's Ch. (Miss.) 276 Nance r. El;
3 Iredell's Ch. (N. Car.) 408 Mav. Porter, 3

Humphrey, (Tenn.)
;
347; Williamson r. 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
Platt
Sandford's S. C.
(N. Y.) 118, "make new contracts

for parties, or relieve them from the
Young v. Adams, 6 Mass.

182; U. S. Bank v. Bank of Geor-
and deliberately made.
Id.
76
gia, 10
Wheaton, 333]
Johnson
v.
Burrow, 1355; Cripps v.

Read, 6 Term, 606 Jones v. Ryde,
5 Taunton, 488
Smith v. Mercer, 6
;
Maryland Ch.
Clark, 3
v.
Earle, Spencer, (N. J.) 363

Doyle v. Knapp, 3 Scammon, (111.)
334 Condrey v. West, 1 1 Illinois, 146
ney
it."
Barrick, 4 Gill, (Md.) 300
v.
Morris, 4
was incum-
goodness of
liot,
It
v.
(24Penn. State R.) 142; Middle-
that
goodness of the title, but only
neither he nor the testator had en-
cumbered the estate.

bent on the plaintiff
Ray-
ern eur
v.
Caines, (N. Y.) 192; AbAllen, 2 Johns. Ch. 519 Gov2
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,
v.
Craig
Frost
v.
Gilchrist, 3
effects of those
which they have
fairly
They
will
interfere in cases of fraud, of accident,
615
To
a single exception, and that is where

equivalent to it has been practised upon
this rule there is
fraud, or
or mistake
what
;
but then
either
ground,
is
that
it
is
on the
no
there was
but equitable to restrain the collection of the unpaid purchase-money.
would be throwing upon the
valid contract, or that the contract
It
actually made, by reason of accident

or mistake, is different from the real
intentions of the parties. In the one
the very loss which he had declined

to assume, and be making him, con-
case, they declare the contract absolutely void ; in the other, they make
it
it
what the parties originally intended

to be, if it can possibly be carried
into effect according to their intent.
But they never introduce a new

and
stipulation into the agreement,
especially
one
which
the
parties
themselves might have introduced,
strikhad they thought proper.

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-
which the rent is agreed

to be paid, have been destroyed by
sideration of
well settled, that a tenant

can have no relief in such a case
fire
it
is
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 protects himself
by covenants.
If he
assumes the
risk, he accepts the deed

without covenants, and receives his
equivalent in the diminution of the
When the very thing occurs,

price.
the hazard of which he has taken on
himself, and for which he has received
an equivalent, it would be anything
seller
trary to the intention of the parties,

the guarantor of the title, at least to
the extent of the
sum
See
due."
this
case, infra.
There is a single case, said to have

been decided by Lord Nottingham,
which has laid down a different principle.
In an anonymous case, in 2
Cas. in Ch. 19, the Chancellor
is
said
have relieved from payment of

the purchase-money, when the purchaser was evicted by a title to which
his covenants did not extend.
But
the case was not only not taken down
to
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
incumbrances, not only special,

could not have been admitted.
all
"
2.
The
affirmative covenant
negative to what
all
one as
if
it
is
not affirmed, and

expressly declared that
is
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 barup a
gain, or in other respects sets

title to a stranger by collusion ?
" Xota.
In
many
cases
it
may be
easily done," &c.
"These remarks,"
says Lord St.
616
THE PURCHASER'S RIGHT

In such case, the mere fact of the contract
the purchaser.
having" been executed
deprive him of
by the delivery of the deed, does not

it material whether
his right to relief, nor is
the covenants for
title
do or do not extend to the particular
defect or incumbrance.
But while
this, as
a general principle,
in
England, as
to
is
well settled, con-
somewhat recently experienced
siderable difficulty has been
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 examination.
The
leading case there may be said to be Edwards

1
McLeay, where the principle just referred to was
v.
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
bill
rescind
to
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 represented themselves to be seized in fee of the whole estate.
2
" This
Sir William Grant, in delivering his opinion, said
is a bill of rather an unusual
It is brought
description.
by
:
the purchaser of an estate, who has had a conveyance made

to him, for the purpose of setting aside the sale and getting
back his purchase-money, on the ground of an alleged misrepresentation with regard to the title of a part of such
Leonards,
" are
unanswerable, and
if
the doctrine in this case were law,

the consequences would be serious,
what vendor would permit part

of the purchase-money to remain on
mortgage of the estate, if he were liafor
it, supposing the estate to

be recovered by a person against
whose acts he had not covenanted? "
ble to lose

l
Cooper, 808.
Master of the
Rolls.
cannot certainly be contended that, by the law
It
estate.
617
of this country, the insufficiency of a title, even when producing actual eviction, necessarily furnishes a ground for
By the civil
claiming restitution of the purchase-money.
our
a
vendor
is
in general
law it was otherwise.
law,
By
his
of
covenants
but it has never
liable only to the extent
;
been
laid
down
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
Urmston
the case of
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
2
purchaser. In the case of Bree v. Holbeck, it did not at all
appear that the administrator knew that the mortgage which

Lord Mansfield says, if he
he assigned was a forgery.
'
had discovered the forgery, and had then got rid of the
deed as a true security, the case would have been very different.'
cation
if,
the purchaser
upon
inquiry, the case
Whether
fraud.
title
And
it
had leave
to
amend
his repli-
would support a charge of
would be a fraud
which the vendor knows
to offer, as good, a
to be defective in point of law,
not necessary to determine. But if he knows and conceals a fact material to the validity of the title, I am not
it is
aware of any principle on which

purchaser.
defendants
make
relief can be refused to the
The only
other objection which the

to the relief sought by the bill is, that the
.
premature in his application, inasmuch as he

purchaser
has not yet been evicted, and may perhaps never be evicted.
is
But
apprehend that a court of equity has quite ground

enough to act upon, and that it ought now to relieve the
I
plaintiff
from the consequences of the fraud practised upon
him."
i
Supra,
p. 614, note.
Douglas, 654.
supra, p. 614.
52 *
See
this
case
618
THE PURCHASER
RIGHT
appeal to this decision, Lord Eldon observed that

the case resolved itself into the question whether the representation made to the plaintiff was not, in the sense in
Upon
He was
which we use the term, fraudulent.
not apprised
of any such decision, but he agreed with the Master of the
Rolls that if one party make a representation which he
2
knew
to be false, but the falsehood of which the other

no means of knowing, a court of equity will
had
party
3
contract
the decree was therefore affirmed.
the
rescind
;
2 Swanston, 308.
The Earl
remark
of
Devon
his bill, and I cannot

him less."
In Lord St. Leonards' "Law of
he asked by
said of this
in the great case of
Small
give
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 himself not to be aware of any case in

which that jurisdiction had been
as
Property
administered
House of Lords,"
in
the
653, he says,
" Lord Elin speaking of this case,
don's statement of what he considp.
ered to be the principle of the decree, cannot alter the facts of the
case, and his own previous observation shows that he did not consider
a case of moral fraud, but one

where, in the sense in which a court
it
practically applied, we may find an

additional reason for the principle
tation
that nothing but the most clear and

decisive proof of fraudulent repre-
appears to be the real nature of the

The evidence of knowlcase. .
sentations,
made under such circum-
stances as
show that the contract was
edge was, I think, quite sufficient to

support the decree but it also proved
that the sellers bond Jide believed
such a case inbased upon them

deed as Lord Eldon in his experience
will jushad not known to occur
the interference of a court of
tify
equity."
3
Though with some
modification
extent, "as," said the Chancellor, "it seems to have gone too
as to
its
on the subject of repairs and

Its terms must be
improvements.
made conformable to the terms of
far
the
bill
striking out the
provements, and leaving

repairs.
word imtlu>
word
I give the plaintiff nil that
of equity uses the term, the represenAnd such

was fraudulent.
themselves to have a good title after

and indeed the
so long a possession
was one which it was highly improbable would ever be impeached.

title
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 purThat is the true rule. If
chaser.
the
.title
is
chaser, he
nants.
fairly
before
must rely on
the purcove-
his
This rule does not reqniiv
any representation.
If
the
619
1
This was followed by the great case of Small v. Attwood,

side of the Court of Exoriginally decided on the equity
2
and, on appeal, in the House of Lords,

There was little difference of opinion as to the
in 1838.
rule of law, either in the Exchequer or in the House of
chequer, in 1832,
3
Lords, although the decree in the former, rescinding the

4
not being
contract, was reversed in the latter, the facts
knows a material
it,
that
is,
fact
and conceals
does not divulge
it,
he
is
responsible ; his motive is unimportant

he is bound to give the pur;
chaser the means of forming a judgment on the title, and is not to decide
what he deems
Sir
close.
the
bill,
necessary to disGrant did not, like
W.
put the case as one of gross
although evidently, in the

sense referred to by Lord Eldon,
he declared the contract and conto
be fraudulent and void."
This case of Edwards
v.
McLeay
has been constantly cited as of the
Attwood v. Small,
infra ; Gibson v. D'Este, 2 Younge &
Wilde v. Gibson, 1
Col. N. S. 542
Clark & Fin. N. S. 605, where Lord
highest authority
is
it
hardly
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
4
it
fraud,
veyance
stands encumbered, and
Clark
The
&
facts
Finnelly, 232, 531.

in this case are so
numerous and dependent,

is
difficult to
that
it
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, depending sometimes upon slight circumstances
and sometimes upon a combi
nation of
many
circumstances, as to
Campbell said there was no case of
an examination of each case

upon its own peculiar facts, and the
utmost that can be done in a work
higher authority in the books
like the present,
v.
Harris's
Van Lew
Admr.
v.
Young
Alabama, 111;
Parr, 2 Richardson's
Gans v. RenEq. (N. Car.) 338

shaw, 2 Barr, (Pa.) 34.
i In this case the
amount of the
;
purchase-money was
600,000, and
appeal was
heard in the House of Lords, had
the
costs,
before
the
call for
is
to refer to the
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 Company.
Upon a proposition of sale
being made to the
latter,
Taylor, an
amounted to 10,000. "The case,"

said Lord Brougham, in delivering
his judgment, " was without any ex-
agent and large shareholder, viewed

the works while Attwood was there,
ample within the experience of the
directors wrote to Attwood, proposing to buy the property for 600,000,
man in the profession, in point

of length and of complexity of detail,
or of the mass of matter with which it
oldest
and upon
his
report three of the
payable by instalments, upon the understanding that every facility should
620

Lord
House of Lords
thought sufficient to support the charge of fraud.
Brougham,
in delivering his
opinion in the
for a reversal of the decree, said, " If
a contract, and
two
parties enter into
one of them, for the purpose of inducing

the other to contract with him, shall state that which is not
if
true in point of fact, which he knew at the time that he

it not to be true, and if
upon that statement of what
stated
is
not true, and what
is
be
false, the contract
is
known by
the party making it to

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
an action of damages
will be a relief in
party entering into such contract

the deceit,
grounded upon
equity to the same party
and there
to escape from the contract which

has so been inveigled into making by the false represen-
he
In one case it is
tation of the other contracting party.
not necessary that all those three circumstances should conbe given
to
correctness
Taylor to ascertain the
close to estimate
of
safety,
the
representations
had been made
that
These
examined for
to him.
directors subsequently
themselves, and then reported to the

that they
Company
had concluded
the treaty of purchase after the nature and capacity of the warks had
been
Soon
fully investigated.
after,
Taylor went there to reside as manager,
the
and sent favorable reports
Company.
Some
to
negotiations
ensued respecting the completion of

the
title,
pending which, the price of
then profell, arid the Company

a deputaposed, as a new term, that
tion should go to the works to examine whether certain data given by
iron
Taylor, were
Attwood
to
The
was paid
visit
and
correct,
after
com-
with Taylor, who stated

that although the calculations subiniinicHtion
mitted to him by Attwood were too
profits upon with

that they proved the data
Attwood to be more favor
still
given by
able to the buyer than the seller,

the directors reported that Attwood
had redeemed his pledge, and the

was executed with some
abatement in the price. Six months
contract
after, the
Company
filed
bill
to re-
scind the contract, on the ground of

false statements made in papers sub-
mitted to Taylor, misrepresentations

to the deputation,
and concealment
All these were denied by

the answer, which declared that the
of faults.
representations were
upon certain
were
and
general averassumptions,
The plaintiffs then amended

ages.
their bill by striking out Taylor as a
plaintiff,
and making him dd'rndant.
answer, he denied all fraud

and collusion with Attwood.
In
his
621
cur in order to ground an action for damages at law, or a

claim fur 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
In this case that is clearly out of
wilful misrepresentation.
the question ; therefore all these circumstances must comfirst, that the representation was contrary to the fact ;
bine
it to be
contrary to
secondly, that the party making it knew
l
and thirdly and chiefly, in my view of the case,
the fact ;
1
This proposition, though perfectly

correct as stated in this application,
must not be too broadly construed,
Armstead
as there will appear to be a conflict
7 Grattan,
v. Hundley,
(Va.) 64 (see Sutton v. Button, Id.
239 ;) Smith v. Mitchell, 6 Georgia,
458 Dale v. Rosevelt, 5 Johns. Ch.
of authority which does not really
182
There can be no doubt that

in most eases in which an action in
the nature of a writ of deceit would
Daniel
(N. Y.) 197
1 Story, 172; Mason
Woodbury & Minot,
at law, equity will lend its jurisdiction to rescind the contract, but
After some conflict of opinion between the Courts of Exchequer and
exist.
lie
the converse
by no means univer-
for the heads of fraud
sally holds,
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 personal action for fraud, however it
may operate upon the contract itself.

It may annul the contract, on the
"
ground that a substantial error between the parties, concerning the
subject-matter of the contract, destroys the consent necessary to its
Com. 471; and

has been frequently
v.
Champlin
Laytin, 6 Paige,
v.
Queen's Bench,
v.
Mitchell,
Crosby,
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
know
statements which he did not

true,
v.
Evans, 5
Barley
v.
Queen's Bench, 801;
Walford, 9 Id. 197; Moens

10 Mees. & Wcl>by,
v.
Hey worth,
Ormrod
v.
Ashton, 11 Id. 401;
v.
147; Taylor
Huth, 14
Id. 651,
and the
weight of American authority
this
principle
applied in equity in the rescission
the same effect
of executed contracts for the sale of
8 Johns. 25
estate
Hitchcock
Mead
v.
Bradley
Story's Eq.
142
Giddings, 4 Price, 135

Johnson, 3 Connect, 597;
v.
v.
Chase, 22 Maine, 511;
to
and which were in fact false

there must be fraud, as distinguished from mere mistake Collins
be
validity;" 2 Kent's
real
342.
Russell
v.
is
to
Clark, 7
Cranch, (U. S.) 69;

27
Young v. Covell,
Hammatt v. Emerson,
Maine, 309; Weeks v. Burton, 7
Vermont,
79 Lord
;
Alfen
v.
67
v.
Ewins
v:
Calhoun, Id.
Hamp. 99
Colley, 6 N.
Addington,
Wendell, (N.
THE PURCHASER
622
RIGHT
it should he this false

representation which gave rise to
1
the contracting of the other party."
that
Y.) 10; S. C. 11 Id. 375; Tryon
v.
;
Howard,
(U.
211.
S.)
states
as
where he
material facts as of his
own
Id. 298 TurnGadsden, 2 Strobhart's Eq. (S.
Tuthill
bull
Without,
however, the utterance of an actual

falsehood, a party may still be liable
in an action for deceit
Bank y. Gregg, 14 N. Hamp. 331

Warner v. Daniels, 1 Woodbury &
Minot, 90 Mason y. Crosby, Id. 342;
;
Whitmarsh, 1 Metcalf, (Mass.) 1

Smith v. Babcock, 2 Woodbury &
Lord v. Goddard, 13
Minot, 246
v.
y.
Car.) 14
y.
Craig, 2 Bibb,
Shackelford
y.
Handley,
Parham v.
Marshall, (Ken.) 500
Randolph, 4 Howard, (Miss.) 435;
affirmed in English y. Benedict, 25
;
Miss. 167
340
as this direct wilful statement,
which he has no knowledge what;
Crittenden
(Ken.) 474
knowledge (and not as mere matter

of opinion or general assertion) about
ever
Babcock, 2
Oswald y. M'Gehee, 28 Id.

and see the remarks of Ch. J.
;
Marshall, at the close of the decision
M'Ferran
in ignorance of the truth, is the same

as the statement of a known false-
in
hood, and will constitute a scienter ;

Hazard v. Irwin, 18 Pickering,
(Mass.) 96 ; Lobdell v. Baker, 1 Met-
Heirs, 8 B. Monroe, (Ken.) 23, the

subject of misrepresentation, though
6 Id. 245
Id.
158
469
Medley
Wendell, (N. Y.) 646

Munroe v. Pritchett, 16 Alabama, 785
Waters v. Mattingley, 1 Bibb, (Ken.)
244 Thomas v. M'Cann, 4 B. Mon;
(Ken.) 601 M'Ferran v. Tayand the same

lor, 3 Cranch, 281
circumstances will, of course, induce
roe,
equity to rescind the contract
58
Taylor, 6
;
Smith
v.
Gill
Joice
&
Johnson, (Md.)
Babcock, 2 Woodbury &
Tuthill y. Babcock, Id.

Minot, 246
298 ; Shackelford y. Handley, 1 Mar;
500
equity would be apt to conclude that

the misrepresentation were made,
it had its effect to lead on the purif
chaser to complete the contract
Lord Brougham, in his opinion,

added that the inference he drew
from the authorities was, that " general fraudulent conduct signifies noththat general dishonesty of pur-
ing
that attempts
pose signifies nothing
that an
to overreach go for nothing
intention and design to deceive may

for nothing ;
unless all <hi- dis-
Lockridge v.
Foster, 4 Scammon, (111.) 570; Turn-
go
Gadsden, 2 Strobhart's Eq. (S.

Car.) 14; Lanier y. Hill, 25 Alabama,
558 Smith y. Richards, 13 Peters,
this intention
shall,
bull
(Ken.)
y.
(U. S.) 26.

I This has been often
recognized
by
Gwathmy's
absence, however, of evidence on this

court of
point, it is presumed that a
Denny, 4
v.
v.
v.
v.
erson, 27
John, 16
Taylor, 3 Cranch,
Hammatt v. EmMaine, 309 Gough y. St.
S. C. 3 Id.
Watson,
Stone
v.
Thus, in Winston
a spring of some value, was not a

material element in the purchase, and
In the
relief was therefore denied.
(Mass.) 193
calf,
282.
American
authority
Concord
honesty of purpose,
all this
fraud,
all
and design, ran br con-
nected with the particular transaewith

tion,- and not only connected
the particular transaction, but must
be made
which
to
be the very ground upon

took place, and
this transaction
623

Although the decision
in
must have given rise to this contract.

more general intention to overreach were enough, I hardly know a
contract, even between persons of
If a
strict morality,
very
that could stand.
[See the remarks of Lord Thurlow

in the familiar case of
reth, 2 Bro. Ch.
Eldon
in
Turner
420
v.
Fox
Mackand of Lord
Harvey,
v.
Ch. 178; Pothier de Vente,
the
first,
the contract.
the
It
make void
must be shown
that
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
have
made a representation and, moreover, the representation so made must
have had the effect of deceiving the
of
his
directions,
;
purchaser and, moreover, the purchaser must have trusted to that representation, and not to his own acu;
men, not
to his
own
perspicuity,
and
not to inquiries of his own. I will

not say that the two might not be
mixed up
together, the false representation of the seller, and the inquiries of the buyer, in such a way
as even then to give a right to relief."
These remarks are amply illusby 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,
trated
calculation
and the
Tindall
v.
19
Harkinson,
Georgia,
So of vague general repre-
sentations as to matters open to the
attempt was made, and
fulfilment
own
vendor's
law was held the same way in Strong

v. Peters, 2 Root, (Conn.) 93
Bell
v. Henderson, 6 Howard,
(Miss.) 311
448.
to overreach
but that does not
it
n.
We
and of the other
afforded no ground for rescission,
being no part of the contract, and

the matter being one fully within the
Jacob's
295,
334.]
generally find the case
to be, that there has been an attempt
of the one party to overreach the
other,
Court below
this case in the
examination of
&
Hill
son
v.
165
all
Davis
v.
Sims,
Denio, (N. Y.) 234 AnderBurnett, 5 Howard, (Miss.)

;
Bell
Anderson
v.
v.
Henderson,
Marsh. (Miss.) 683
supra;
Smedes &
Foley v. Cow-
12
Hill,
;
5 Blackf. (Ind.) 18.' It is, in

fact, no more than the application of
the maxim, simplex commendatio non
"
obligat.
Ordinary mistakes of the
gill,
purchaser," as was said in Taylor v.

" reFleet, 4 Barb. S. C. (N. Y.) 95,
lative to the qualities of the
property,
caused by the commendations of the

seller
sidering
means
and that which I

is but little more
call for
am
con-
by no
the interposition of a
court of equity.
Such commendations are so common and natural,
that they are generally expected, and
duly estimated. The proprietor forms
an exaggerated opinion of his land,

and particularly of its comparative
He may therefore
good qualities.
sincerely and honestly praise them.
Common prudence requires that a

purchaser should guard against this
propensity by personal examination
and inquiry. He is excusable Yor
not doing so when such examination
or inquiry would be difficult, or when
they are prevented by the
the seller
politic,
and often
It
artifice
of
would be im-
unjust, to set aside
621
THE PURCHASER
was reversed, 1
yet, as
RIGHT
has been said, there was little or no

law which should govern it,
difference of opinion as to the

a sale merely because the
warmly commended
seller
had
the qualities of
the property, and the buyer had been
The Earl
of Devon, in delivering
Small v. Attwood, con-
his opinion, in
sidered that there was no proof suffiAttwood with any defi-
consequently disappointed. The rule

in such case is simplex commendatio
non obligat. Purchasers are often,
cient to fix
perhaps generally, disappointed in

reference to some supposed quality
representation, and that the purchasers did not rely upon the statements
To
of what they obtain.
allow
them
to escape from their bargains for such

causes would generate great careless-
ness on their part, and would constitute 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 considerations 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
tect
may be
and punish
It
obvious, however, that the

referred to must meet with a
is
maxim
strict
construction
which
is
is
requisite to de-
it."
where the land
the subject of the purchase

and the purchaser
at a distance,
wholly upon its description as

given by the vendor Bean v. HerSmith v. Richrick, 12 Maine, 262
relies
nite statement of facts, so as to
found
thereon a charge of fraud and mis-
made
to
them, but investigated for

Lord Cottenham was of
themselves.
opinion that the representations made

were not intended to show the cost
of producing iron at that particular
time, but the average results of former years. The first point, there-
he thought was, were the representations matters of fact, or only
fore,
speculative calculations for the future ? secondly, were they, whatever

they were, acted on by the Com-
pany
thirdly,
false ?
and
pened
to
were they true or

had anything hap-
lastly,
deprive the
Company
of
the right of insisting upon any inaccuracies 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 pethat they did not rely upon the
representations, but having free ac-
riod
cess to all the books, satisfied them-
Peters, 26 ; Sandford v.
Handy, 23 Wendell, (N. Y.) 260;
Van Epps v. Harrison, 5 Hill, (N.
selves of the accuracy of the representations, and that with full knowl-
Y.) 63 see Clark v. Baird, 7 Barb.

S. C. (N. Y.) 65, where it was held
they for several months acted on the

contract, and asked and obtained
had the oppor-
additional time for payment.

He
was unable, therefore, to perceive
that fraud had been made out.
Lord Lyndhurst, with whom
agreed Lord Wynford, in tli-fiMuliiig
the opinion he had delivered below,
ards,
13
that if the purchaser
tunity of ascertaining the true boundary line, and neglected to inform

himself, he could not recover
dam-
ages for a misrepresentation of that

boundary by the vendor.
edge of
all
the facts complained
of,
625
TO DETAIN PURCHASE-MONEY, ETC,

and Lord
qualified
St.
1
Leonards remarks, that
and explained
in the
to the rule of law, as
House of Lords, no exception
considered the law to be clearly setwhere representations are
ion that an action for
respect to the nature and

character of the property which is to
become the subject of purchase, af-
tained."
damages might,
under such circumstances, be sus-
tled, that
made with
This case, however, was much more

distinguishable from Attwood v. Small
fecting the value of that property,

and those representations afterwards
than Lord Lyndhurst seemed to sup-
turn out to be incorrect and
false, to
the knowledge of the party
making
statement, which was intended to

prevent: the purchaser from mak-
pose, as the vendor
made
a definite
mainin
a
court
action
of
coman
taining
mon law to recover damages for the
deceit so practised, and in a court of
ing investigations which would have

shown that statement to be false.
equity a foundation is laid for setting

aside the contract, which was founded
2 Barr, (Pa.) 107, where the representation was made that the incum-
" I do not
" that that
brances on the property were far less

than they really were. "If the facts
is
disputed by either of
noble and learned friends it was
be as stated," said Rogers, J., with

" can a court of
great propriety,
hold
this
to
be a valid exequity
change ? And why should it be so ?
Because, says the Court (below), ft
was her folly. The liens were of record, and she ought to have searched
for incumbrances.
Can it be the
law that we are to repose no confidence in each other, without being
branded with the charge of folly and
them, a foundation
upon a fraudulent
understand,"
is laid
basis.
said
he,
for
Dobell
proposition
my
distinctly laid
down and decided
in
the case referred to in the judgment

below, and which has been referred
your Lordships' bar I mean

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
to at
v.
Stevens
by the recent
is
case of
fully
Hunt
supported
v.
Moore,
Dobell
case of the purchase of a public house;

a false representation
false to the
the earnings of a lifetime.

True, says' the defendant, I told you
a deliberate falsehood, but you ought
losing
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-
not to have believed one word I said.
The books
ing a certain period.
were in the house it was part of the
;
Had you searched the records, you

would have discovered it was all untrue. ... I never can, and never
case that the purchaser -might have

had access to them if he thought
consent that any person shall be

permitted in this court to take ad-
but, notwithstanding that

circumstance, it being proved that
the representation was false, the
vantage of his own wrong.
proper
will
Court of King's Bench were of opinSugden's

53
Law
'
Had he
been silent merely, perhaps this plea
would have availed him although
even in that case a court of equity
;
of Property, 598.
626
THE PURCHASER
RIGHT
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
The question, however, of what

the vendor ought to inform the pur-
and the same principle was applied

in Napier v. Elam, 6 Yerger, (Tenn.)
108 Young Hopkins, 6 B. Monroe,
chaser,
what he
and
is
under no
such obligation to do, will sometimes

be a difficult one, and as was well said
Bean
Herrick, 12 Maine, 262,

caveat emptor, is a suf-
(Ken.) 23; Campbell v. Whittingham, 5 J. J. Marshall, (Ken.) 96 Parham r. Randolph, 4 Howard, (Miss.)
in
Jackson, 5 Selden,
(N. Y.) 545; see, however, and consider Griffith v. Kempshall, Clark's Ch.
gard to defects open to observation,

but the line which separates cases
451
Burwell
v.
(N. Y.) R.571,and Tallman v. Green,

3 Sandford's S. C. (N. Y.) 526.
The
between the aland

the
suppressio veri
legatio falsi
would seem to be that the non-disdistinction
" the
v.
maxim
answer to mere silence in
ficient
where
which
this
re-
maxim applies, from others
call for
relief, is
not defined
with precision each case rests upon

its peculiar circumstances." The ques;
tion will often
depend much upon the
closure, in order to constitute fraud,
basis of dealing between the parties.

" The
Court, in many cases," said
must be of facts which the seller was

under an obligation to disclose. " I
Jacob, 178,
make no
distinction," said
in Early
J.,
Cress.
v.
Garret, 9
" between
928,
Bayley,
Barn. &
an
active
and a passive communication, for a

is as bad as
fraudulent concealment
fraudua wilful misrepresentation.

lent concealment by the seller, of a
fact which he ought to communicate,
would undoubtedly vitiate the sale ; "
see also Pearson
So
Ch. 390.
it
v. Morgan, 2 Brown's
was said by Mr. Jus-
" the true definition

Story that
tice
of undue concealment which amounts

to a fraud in the sense of a court of
equity,
and from which
relief, is
it will
grant
the non-disclosure of those
and circumstances which one

party is under some legal or equitable
to communicate to the
ol>l Cation
facts
other;"
v.
Story's Kq.
Bumpass,
241
207; Young.
Freeman's Ch. (Miss.)

v. Holloway, 8 Black-
Tins State
ford, (Ind.) 47.
Lord Eldon
Turner v. Harvey,
been in the habit of
saying, that where parties deal for an
in
" has
may
estate,
they
arm's
length,
put each other at

where incum-
and
brances are matter of record or are
and the purchaser views for

it is
apprehended that equity
will not rescind on the ground of
mere silence on the part of the vendor."
This distinction between the
allegatio and the suppressio, was obpatent,
himself,
served in Richardson
v.
Bright, 9
Vermont, 368, where the incumbrance was of record, and it was said
that if the vendor had notice, and
used no means to prevent knowledge
to the purchaser, who had the means
of informing himself within his power,
was no fraud
he was not bound
it
to inform him.
Kempshall,
Of
will
its
See also
Griffith
Clark's Ch. (N.
v.
Y ) 576.
course, however, (his principle

much relaxed, or entirely lose
be
application,
where any such con-
627
be executed with more caution than that of rescinding

This we shall see powerfully exemplified in
a contract.
to
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
damage
irreparable
to
one
to interfere, it does not

deprive
party, whilst, by refusing
the other party of his remedy, by an action of deceit, if he
really have been deceived."
between the
fidential relation exists
vendor and purchaser as
put them
to
upon unequal terms Brice

;
5 Barb. S. C. (N. Y.) 540
Fox
v.
Mackreth,
w. Brice,
notes to
Leading Cases
Equity.
The converse of the position
ed above
said
is
in
equally true, for, as was

in the case just
Lord Thurlow
in
Fox
remarks of
Mackreth,
2 Bro. Ch. R. 420, " If an estate is
offered for sale, and I treat for it,
v.
knowing that there is a mine under it,

and the other party makes no inquiry,
I am not bound to give him any information of
it.
[Harris
Tyson, 12
v.
Harris, (24 Penn. State R.) 360.] He

acts for himself, and exercises his own
senses
and knowledge.
little is
But a very
sufficient to affect the appli-
If a single
word is dropped which tends to mislead the vendor, that principle will
cation of the principle.
not be allowed to operate
"
and, in
selves, but so expressed as to give the

idea that they conveyed the whole
trust, while a material fact is kept
back; Allen
stat-
by Lord Eldon,
cited, in referring to the
where the seller should

which were true in them-
Cress. 928, as
state facts,
u.
Addington,
Wendell,
(N. Y.) 10, 11; Id. 75; Kidney v.

Stoddart, 7 Metealf, (Mass.) 252.
l 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" I
thought at one time,
propriate.
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 case, and my

present calm review of it has satisfi-
ed
me
that
it is
importance.
a precedent of much
an excellent
It affords
commentary on the
rule of law,
and
exemplifies the process by which we

are to arrive at a just conclusion. The
general, it may be said that any

course of dealing calculated to create
a false impression on the purchaser
opposite views taken of the particular

evidence is not important, but the
fraud; Misncr v.
69 Young
4
Oilman,
(III.)
Granger,
Lords were guided,
will
amount
to a
v.
Bumpass,
241; Bean
2G2; Early
1
v.
v.
Frecm. Ch. (Miss.)

Herrick, 12 Maine,
Garrett,
Barn.
&
principles
by which the House of

are, indeed, im-
Previously to this case, the

portant.
instances were rare in which a purchaser, on the
ground of misrepresen-
tations prior to a written contract,
628
THE PURCHASER
RIGHT
In the subsequent case of Vigers v. Pike, 1 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 subject 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,
was
the decree
affirmed, the Chancellor observing, that in a case depending

upon alleged misrepresentations as to the nature and value
which was
on that head, and,

and with means of
knowledge, and possession, had apafter
silent
inquiry,
plied to a court of equity to rescind

If the decree had remained undisturbed, 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
But the
would have been made.
decision of the Lords placed the doctrine on the right foundation. Fraud
the contract.
is
is
a sufficient ground for relief, but it

not to be made out from ambiguous
papers where the parties investigated

the books and accounts, and inquired
for themselves,
and with possession
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
the learned author's
last edition
of
work on Vendors
and Purchasers (vol.

had remarked, that "
i.
it
p. 383),
he
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 required him to bind himself by the contract
full means of knowledge, delayed

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
to those representations, and to agree

to reduce the purchase-money if they
upon such evidence as was;

produced in this case to impeach the
written contract, is proved by the
opposite views of the very learned
per.MHis who gave judicial opinions
upon the, lorrc anl effect of it; but
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."
1
on appeal
2 Drury & Walsh, 1
and
for
resting
the Lords in
ett'ecl
decide"
I.
that
w here
proved
to
Such a
be incorrect.
sim-
ple precaution would have prevented

the vast litigation in that case but
;
it is
clear, that if
such a
demand had
to the
House of Lords, 8 Clark &
Fin. 502.
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 hy showing that the plaintiff was,
from the beginning, cognizant of all the matters complained
of, or, after full
information concerning them, continued to
deal with the property,
and even
to
exhaust
it
in the
enjoy-
by working mines.
In the recent case of Gibson
ment, as
2
D'Este, the question was
whether a purchaser was entitled to rescind an executed
contract because of the omission to mention to him the
v.
existence of a right of
way over part of the grounds in front

The former owner of the property having
this right of
way as a nuisance, had obtained
of the house.
complained of
permission from the parish to enclose

1
it
in,
acknowledging
See accordingly, Pintard v. MarSmedes & Marsh. Ch. (Miss.)

126 1 Story's Equity, 203 a Cun-
right to recover damages for the tort,

as a distinct and separate transaction,
" and it is
obviously just, that the
ningham v. Fithian, 2 Gilman, (111.)

650 Masson v. Bovet, 1 Denio, (N.
vendee should be able
tin, 1
69;
Y.)
Tindall
Georgia, 448
v. Harkinson, 19
Glasscock v. Minor, 1 1
Missouri, 655
4 Scaramon,
Lockridge
(111.)
570.
v.
Foster,
Length of
time, however, will of course be
element to bar the
plaintiff
no
from re-
he has acted promptly upon
lief, if
the discovery of the fraud
McLean v.
Barton, Harrington's Ch. (Del.) 379;

Concord Bank v. Gregg, 14 N. Ilamp.
331.
much
In the
New York
of
litigated case in
Whitney
v.
Allaire, 4
Hill, 484, 4
313,
it
Denio, 554, 1 Comstock,

was held that although the
purchaser would not be suffered to rescind the contract, if, after the discovery of fraudulent representations
as to
on
its territorial
extent, he had gone
yet that such affirmance of the contract only made it binding as such, and did not destroy the
to affirm
it,
53*
to insist
on the
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
make a worse bargain, by the

misrepresentations of the vendor;"
led to
Notes
to
Chandelor
v.
Lopus,

2 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.
Mademoiselle D'Este, the
Gibson.
appellant, having married Sir Thom;
who was afterwards Chanunder the title of Lord Truro.

This case is well condensed in Sugden's " Law of Property as admin-
as Wilde,
cellor,
House of Lords," p.
and the reversal of the decree of
istered in the
6 15,
the
Vice-Chancellor, severely
cized by him at great length.
criti-
630

was made by consent of the
a walk should be reopened by her
by a deed
that the enclosure
parish
agreeing that
on seven days' notice
that
its line should be

designated by
would keep open another
mark-stones
that
she
proper
road in a different direction, and would pay five shillings
annually to the parish, by way of acknowledgment.
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-
These stones were outside of

nate the original line of way.
the pale fence, and in fact, on the line which divided the
The substituted road was

parish from an adjoining town.
the
rent
regularly paid by her, and after
kept open, and
The
her death by her daughter, who became the owner.
employed a surveyor to lay out the property inher solicitor and agent informed
building-lots, and
latter
to
the
surveyor
and that
of
its line
the
claim
of
the
was marked with
parish
stones.
to
The
the
way,
surveyor,
other things, planned a road, which was to comprise

the line of this way, and the whole property was then laid
among
out into
The
lots,
with this road running through, and thus sold.

agreement with the parish,
abstract did not refer to the
have included the way, nor was

informed, by the agent, of these circumThe parish soon after claimed their half-yearly
as the road
was supposed
to
the purchaser
stances.
rent,
which the purchaser refused
rescind
ment.
to pay,
and
filed
bill to
the contract on the ground of fraudulent concealcharge of personal fraud whatever was made
No
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
of the payments of the rent, except that they
particularly
1
in the accounts rendered to her by her agent.
appeared
l It
should be observed that these payments did not so specifically
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 mishim of material facts within the knowledge
representation to
of the defendant or her agent, whose knowledge for the
to her knowledge,
present purpose was to be held equivalent
but not within the knowledge of the plaintiff, he being without the means of knowing the true state of these facts.
But
decree was reversed in the
this
as
principally,
it
was
said,
House of Lords, 1
on the ground that the doctrine
of constructive notice to the defendant,
from the knowledge
" The
of her solicitor, could not be applied to the case.
effect of constructive notice," said Lord Cottenham, in deliv" in cases where it is
ering his opinion,
applicable, as in
contests between equities of innocent parties, is sufficiently
severe,
and
is
some ground
wise equal
only resorted to from the necessity of finding

for giving preference
but this
is
the
first
between equities other-
time I ever
knew
it
applied
an imputation of direct personal fraud and

The two things cannot exist together
misrepresentation.
in support of
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."

in the accounts as to
convey
definite
information to the owner as to the
ground of their payment.

1
Wilde v. Gibson, 1 Clark & Fin.
N. S. 605.
2 Lord Cottenham further
said,
that the decree could not be supported on the authority of Edwards v.
" for in
(supra, p. 616),
that case there was knowledge in the
McLeay,
With
this opinion,
vendor and a false representation,

both of which are wanting in the
present case.
case
much more
in
point is that of Legge v. Croker, 1

Ball & Beat, 506, in which the lessor
had assured the lessee that there was
no right of way over the ground

that there had been formerly, but
that it had been legally stopped by a
;
grand jury presentment forty years
63
Lord Brougham entirely concurred, and Lord Campbell

thought it was necessary to observe strictly the difference
between the rules which apply to a contract
" If there be in
still
executory,
and one actually executed.

ever," said he,
any way what"

or
which is
concealment,
misrepresentation
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
And
kind,
there
conveyance only on the ground of actual fraud.
would be no safety
for the transactions of
upon a discovery being made
if,
man-
any distance of
at
time, of a material fact not disclosed to the purchaser, of

which the vendor had merely constructive notice, a convey-
He
ance which had been executed could be set aside."
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.
knowledge which would show that he was
fraudulent misrepresentation."
before.
It
turned out that there was
footway, the
presentment applying
only to a carriage-way, and the lessee was convicted for obstructing it,
whereupon he filed his bill to be relieved from the lease
but Lord
;
Manners dismissed
*
If there
his bill, saying,
were a
wilful misrepresentation, the plaintiff might be entitled

to
relief,
but the lessor conceived
himself entitled in point of law in

asserting that there existed no right
of
way
it
cannot be called a mis-
That was a much

representation.'
stronger case against the lessor than
the present
is
against the vendor."
He
had no
guilty of
The
strictures of
ards in "
Lord
St.
Leon-
The Law
of Property as
administered in the House of Lords,"
upon the reversal of the de-
p. 637,
cree of the Vice-Chancellor, are very

severe " It does not seem to be cor:
" to
rect," said he,
the
common
compare
this
with
case of constructive no-
If I honestly buy an estate

without notice of an incumbrance,
tice.
yet
if
were
me
my
agent
know
of
it,
or there
sufficient circumstances to lend
to inquire, I am
notice.
constructive
doubt, very hard
bound by
This
for I
is,
this
no
am bound
by an incumbrance of which
ivally
633
The foregoing cases in the House of Lords have been referred to at some length, both on account of their intrinsic
But does this apply
notice.
a ease, where an owner of an es-
of the real nature of the charge, is to

enable him upon a sale to throw the
possession pays interest or

under a charge created by the
person under whom he claims as a
volunteer
a charge which he cannot displace, and which he must sat-
burden off from his own shoulders,

and to cast it upon those of an innocent purchaser, who was in no man-
had not
to
tate in
rent,
The
isfy ?
notice runs, as
it
were,
The payment by
an agent cannot weaken the case
where the agent knows why he pays,
and the receiver knows why he is entitled to receive.
The owner does
with the charge.
not think
ment
fit
to inquire
why
the pay-
made, although marks to support the right are set up on the estate, and the deed creating the charge
is
is
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
the -payments.
The question does
not appear to be whether the perusal
of the deed or the entry of the payments would show the precise line of
road, but whether the deed
and payments which bind the owner to the

as,
liable to
it.
Very
slight evi-
any were required, ought

to be sufficient to fix the owner of an
estate with the knowledge of an actual charge on his estate, his liability
to which admits of no dispute.
The
dence,
if
charge of personal fraud not sustainwhere not essential to the relief,
ed,
may
the
properly have an effect upon

but not upon the merits.
costs,
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;
neglect to inquire does not impeach

the charge or weaken the effect of
actual line of road, are not
ner
be-
tween him and a purchaser without
ted that the judgment cannot be supIt is also

ported."
worthy of no-
and seems," says the learned

author (p. 656), " to have escaped all
attention, that the defendant covetice,
nanted that notwithstanding any act

done by herself or her mother, the
former owner, she was seized of (all
and singular the lands, hereditaments,
notice, conclusive evidence that the
mansion-house, and premises convey-
knew, as he was bound to

know, the exact rights which were
secured by the deed and acknowledged by the payments. On the one
hand, to fix an owner under such circumstances, with that which he is
bound to know, inflicts no injury.
It renders him neither more nor less
ed, of a perfect and indefeasible estate of inheritance in fee-simple in
seller
liable.
But
to consider these circum-
stances as conveying to
him no notice
possession, without
condition,
any manner of
qualification,
restriction,
matter or thing whatsoever, expressed or implied, and which could revoke, determine, abridge, qualify, alcharge, incumber or prejudic-
ter,
ially affect the
same
in
any manner
aforesaid) with the other usual cove-
634)
importance, as decisions in the court of last resort in Engand because they show, as conveniently as any other
class of cases, the principles by which the rescission of exe-
land,
cuted contracts are to be governed in cases of improper

It will have been
concealment or misrepresentation.
perceived that the difficulty which such cases present, consists
much in the principles themselves, as in their appli-
not so
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
1
and hence the question
contains,
chaser
is
recover
it
arises
how
far the pur-
allowed to detain the unpaid purchase-money, or

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
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-
for
title
titles
him
to relief.
nants following.
Now, can a more
distinct representation of a seizin in

fee, not controlled
by any deed exe-
cuted by' the mother of the vendor,
be framed
"
But
it is
probable that
having escaped the

attention of the able counsel in this
instead of
this fact
carefully
argued
case,
it
was
not
deemed a proper
as
it is
title
subject of attention,
believed that covenants for the
are not properly to be regarded
as representations, in the sense in

which that word is used in this con-
nection.
1
Supra,
Upon
p. G14.
this
branch of the subject
of this work I
recall the
may be permitted to
words of Lord Eldon, that
" fewer cases turn

upon greater niceties than those which involve the
question whether a contract ought to

be delivered up to be cancelled, or
whether the parties should be left
remedies," Turner v.
Ch. R. 169, and
Jacob's
Harvey,
the expression of Chancellor Kent,
that on this subject " the law does not
to their legal
to be clearly and precisely setand it is dillicult to reconcile

the cases, or make the law harmoni/e
"
2 Kent's
on this vexatious question
seem
tied,
Com. 471.
635
The
merous
cases upon this subject will be found far

in this country than in
England, for which there
The almost
are obvious reasons.
of limiting the covenants for
title
more nu-
universal practice there
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 gen1
eral covenants for the

eral,
The
Where
the covenants are gen-
the whole previous question of title is thrown open.

vendor covenants that he is seized of an indefeasible
estate
that
it is
free
warrant and defend
whomsoever.
ter
title.
by whom
from
it
all
incumbrance
or that he will
to the purchaser against all persons
Hence, any defect or incumbrance, no matcaused, 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
payment of the purchase-money depend almost entirely

on questions which arise before the execution of the deed,
to
and are most frequently presented upon a bill filed for spe2
cific
and even where quesperformance of the contract
;
tions arise after its
versy are
much more
consummation, the subjects of controrestricted than in
American cases
for
England, wnere the covenants are limited to the acts of

the vendor, he is very apt to be aware of any defects or in-
in
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
cumbrances of
See supra,
The English
p. 551.
cases as to specific
performance of contracts of sale of
real estate are very well collected
and arranged
in
Mr. Dart's recent
treatise on Vendors and Purchasers,

pp. 457, 458, and in the note to Seton
v. Slade, 2
Leading Cases in Equity,
the American authorities will also be
found.
636
and concealment by him, or the neglect of provident vigilance on the part of the purchaser.
But where, as in parts
of this country, general covenants are often
given, and
sometimes even regarded as a substitute for examination of
title, many cases must arise where the question of con-
the
cealment
not presented, as the vendor cannot be aware
is
every defect which
of
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
recognize
same
law did not
propriety of settling cross demands in the

The object of each action was to determine the
the
suit.
rights of the plaintiff as to the particular subject of his de-
mand, without regard
any claim which the defendant

might have, growing out of the transaction ; and it was
not until comparatively modern times, that courts of law
to
were enabled by the statutes of bankruptcy, 1 and the statutes

2
to give to a defendant
any redress except by
of
a
cross action ; and although courts of equity
means
had, before this time, been in possession, of the more liberal
of
set-off,
doctrine (which
was
familiar to the civil law
compensation), their jurisdiction

defined.
to
by the term
have been little
was some time before
It
seems
the spirit which led to these

which did not come within
statutes infused itself into cases
Thus with respect to perwas not allowed, in
the letter of their enactment.
sonal estate, the purchaser of a chattel

l
4 Anne,
5 Geo,
II. c.
6 Geo.
IV.
* 2
24.
Geo.
17
5 Geo. I. c. 11
;
30; 46 Geo. III. c. 135;
c.
c. 16.
II. c.
22
8 Geo. II.
c.
3 See 2
Story's Eq. Jurisp. c. 38,
on Set-off; Freeman v. Lomas, 9
Hare, 109, 5 Eng. Law & Eq. R.
1
20.

an action for
its
637
a defence, a breach of
price, to set up, as
warranty either as to quality or title, but was forced to pay

the amount, and driven to a cross action by which to estab-
own
not necessary here to analyze the

train of decisions which have departed from this
severity of
lish his
rule,
claim.
and have
It is
both in
the principle,
finally established
Eng-
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 consideration,
and
in mitigation of
Such a doctrine was
damages.
then a distinction was taken, as to
at first totally denied
admissibility as a defence, between actions brought to

recover the contract price, and actions brought on securities
its
given for that price
went
it
to the
then the defence was admitted
when
when it
whole consideration, but rejected

3
the principle seems well
finally
until
touched only a part
4
settled as has been stated.
See the cases cited
in
Basten
v.
and per Lord

Farnsworth v. Gar-
Butter, 7 East, 479
Ellenborough in
Crowninsliield
rard, 1 Campbell, 39
Thornton
v. Robinson, 1 Mason, 93
;
v.
Wynn,
12 Wheaton, 183.
In
Mog-
gridge v. Jones, 3 Campbell, 38, and 14

East, 486, Lord Ellenborough applied
the old rule to a case where the consideration of a bill of
exchange was
The
de-
let into possession,
and
the execution of a lease.
fendant was
the plaintiff then refused to execute

the lease. It was held that this was
that the deno defence to the bill
fendant had his remedy upon the
agreement.
a
Cress.
seem that
and
877,
this distinction
would
it
still
exists
Court of Exchequer Warwick v. Nairn, 10 Excheq. 761 32

Eng. Law & Eq. R. 493.
3
Templer v. McLachlan, 5 Bos. &
Pull. 136
approved by Shaw r. Ar-
in the
den, 9 Bingham, 287;

Moore, 159; Pulcifer
12 Connect. 234;
Day
v.
see
v.
Nix, 9
Hotchkiss,
McAlpin
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. Ford,
29 Maine, 546 Reed v. Prentiss, 1
;
Morgan v. Richardson, 1 Camp40 Tye v. Gwynne, 2 Id. 346
bell,
&
Barn.
per Denison, J.,in Robinson v. Bland,

Mann v. Lent, 10
2 Burrow, 1082
54
;
N. Hamp.
3 Id. 458
481
1
;
74
Elliott v.
Dodge
v.
v.
Temple,
Turner, 6 Id.
Heath, 14 Id. 131 ;
Shepherd
Britton
v.
Tileston,
12
Pickering.
638

however, to say under what precise head
It could not, in strictness,
be classed.
It is difficult,
such a defence
come under
is to
the head of
general, sound
set-off',
for the purchaser's rights,
unliquidated damages, which do not

within
the
It has
come
scope of the statutes of set-off.
been admitted, moreover, in cases where failure of considerin
was not
in
In England, it has very lately been

held, that such a defence is not by way of a cross action,
ation
in
point.
how much
the subject-matter of the

contract was worth, by reason of the breach of the war2
ranty, while in New York it has somewhat recently received
but by showing
less
name of recoupment. 3
But by whatever technical term such a
the
whether
called
be compensation,
it
defence
set-off',
may
be
failure of con-
the principle on which it is

recoupment
the same as that which led to the statutes of set-off',
sideration, or
based
is
viz., that
extent the
of preventing circuity of action

common-law rules of pleading
(Mass.) 328 Harrington r. Stratton,

22 Id. 510; Perly v. Balch, 23 Id.
Goodwin v. Morse, 9 Metcalf,
284
1
(Mass.) 279 ; Dorr v. Fisher, Cush;
272; McAllisters. Reab,

4 Wendell, (N. Y.) 489 S. C. 8 Id.
109 Batterman v. Pierce, 3 Hill, (N.
;
Whitney
(N. Y.) 557
v.
S. C. 1
v.
Allair, 4
Denio,
Comstock, 306
Steigleman
Rawle, (Pa.) 478
&
Serg.
Patterson v. Hul-
Jeffries,
ings, 10 Barr, (Pa.)
507
Peden
v.
Moore, 1 Stew. & Porter, (Ala.) 71

Robinson v. Wilson, 19 Georgia,
Mercer v. Hall, 2 Texas, 284
507
;
Desha v. Robinson, 17 Arkansas, 244;

Brandt v. Foster, 5 Clarke, (Iowa,)
Withers v. Green, 9 Howard,
291
(U. S.) 214 Van Buren v. Digges,
11 Id. 461, overruling Thornton v.
;
Wynn,
12 Wheaton, 183.
See Sedg-
and the
17,
Lopus, 1
Smith's Leading Cases, and Cutter
v.
Powell, 2 Id.
v.
lives
v.
Van Epps,
22 Wendell,
(N. Y.) 155.

a
Mondell
Y.) 171
may
whatever
to
have rejected
wick on Damages, c.
notes to Chandelor
ing, (Mass.)
and
v.
Steel, 8
Mees.
& Wels-
by, 858.
3 The
subject here so briefly and
incidentally touched upon, will be
fully and ably considered

American notes to the cases of
Chandelor v. Lopus and Cutter v.
Powell, 1 and 2 Smith's Leading
Cases, and in a chapter on llecoup-
found very
in the
ment, in Sedgwick on Damages
src
also passim, 2 Kent's Com. 470, &c. ;

Withers v. Green, 9 Howard, (U. S.)
214,
and Wheat
sas, 699.
v.
Dotson,
Arkan-
639
those defences which militated against singleness of issue,
it
has heen found, in modern times, less inconvenient to determine, in the same action, as well the rights of the defendant as those of the
with different
ties
plaintiff,
suits,
than to oppress courts and par-
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
1
could, in the absence of illegality of consideration, be admitted to its payment, even where the title to the land had
and the purchaser been evicted from
its
pos-
There could be no defence on the ground of
fail-
utterly failed,
session.
ure of consideration, for the seal imported a consideration,
which the purchaser was estopped from gainsaying 2 nor

could there be a defence by way of set-off, because the pur;
chaser's rights sounded in unliquidated damages.

there could be no defence, at common law, to the
Hence,
payment
when secured by a specialty, unless
where illegality had, in some way, entered into the contract. 3
The only remedy was by recourse to equity.
In America, however, the common-law rule as to the
solemnity of a seal, has, in some States, been relaxed by
of purchase-money,
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
4
consideration;
1
Fraud would
less the
78
instrument
Rogers
Zabriskie (N. J.) 704;
infra.
2 Collins
347
no defence, un-
fraud related to the execu-
tion of the
Colt, 1
bo,
and where such
v.
see
the case,
is
it is
immaterial,
See, as to illegality, the notes to

Collins v. Blantern, 1 Smith's Lead-
ing Cases.
4
Case
Boughton, 11 Wendell,
v.
(N. Y.) 107 Wilson v. Baptist Society, 10 Barb. S. C. (N. Y.) 312;
;
v.
Vrooman
Rogers
v.
Blantern, 2 Wilson,
v.
Phelps, 2 Johns.
Colt, supra.
M'Knight
534.
v.
Kellet,
Georgia,
640
so far as this question
is concerned, whether the

purchasebe
secured by a specialty, or by a bill or note.
money
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

to be no reason on principle, why, if the
pur-
would seem
chaser have a right to permanently detain unpaid purchasemoney 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
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 explaintiff',
upon different principles and machinery from an action

which seeks to rescind the contract, and recover back its
tent,
Hence
consideration.
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
action of covenant,
title.
His remedy in such case is by an
and not by an action of assumpsit. 3 But
when
the position of the purchaser

" the technical rule remits
although
1
104
345
448
Toussaint
;
v.
Martinnant, 2 Term,
Hunty. Amidon, 4
Tillotson
(see
Lea
v.
Hill,
Grapes, 4 N.
v.
(N. Y.)
Hamp.
Dean, 3 Wharton,
(Pa.) 329, which is not opposed to

these cases). In Miller v. Watson,
5 Cowen, (N. Y.) 195, the plaintiff
proved a promise on the part of his
vendor, who had sold to him with a
covenant of warranty,
to
repay the
consideration-money, as the title had

i'ailrd, hut the Court held that there
having been no eviction of the plain-
tiff,
is
that of a defendant,
him back
to his cove-
the promise was without considand that the plaintiff's only
eration,
remedy was on the covenants in his

And in Moyer v. Shoemaker,
deed.
5 Barb. S. C. (N. Y.) 319,
it
was
apart from this ground,

before an action of assumpsit could
held, that
be maintained by a purchaser,
to re-
cover the consideration paid by him

for land sold with covenants, he must
reconvey the land to the vendor. See

supra, p. 76.
641
1
nants in his deed," yet it is often thought to be useless and
wrong to compel a purchaser to pay over purchase-money,
which he might the next day sue for in the shape of dam-
ages
and hence,
law of a
at
to prevent circuity of action, the defence

been in some cases "altitle, has
failure of
lowed.
strange that where there has been no uniform
as those now
legal principle under which such defences
treated of have been classed, there should have been some
It is not
discrepancy in the various cases as to the grounds of their
As
the authorities generally seem to treat the

a court of law, as one arising from failure of
consideration, it becomes necessary to inquire what the condecision.
question, in
purchase-money of real estate actually is.

Although the mere receipt of the deed, comprising certain
sideration for the
covenants for
itself
title,
does not, unless in peculiar cases, of

yet, as has been mentioned, the
form a consideration, 2
of this part exceeded the

amount of the note in suit. A verdict having been found for the defendants, it was argued for them, on
2 Kent's Commentaries, 473.

In the early case in Maine of
Lloyd v. Jewell, 1 Greenleaf, 352,
the defendants were sued on one of
value
several notes given by them for the

purchase-money of real estate, which
the plaintiff had conveyed with cov-
a motion for a
enants for seizin, against incumbrances, and of warranty, with a condition that the grantees should not recover of the grantor for the breach
of those covenants
further
sum than
any greater or
the consideration
with interest, payable in cash to the

amount received on said notes, and
new
trial,
that both
on
general principles, and from the construction of the deed, which seemed
framed to meet such a case, the verdict should be allowed to stand
but
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
defendants
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-
proved that the plaintiff had no title

to a specific part of this land, which
was in the actual adverse possession
uable consideration for the note (and

such seems to have been thought in
Gridley v. Tucker, 1 Freem. Ch.
of the lawful owner, and that the
(Miss.) 211),
the residue by delivering up to be

cancelled such of the notes as should
remain
unpaid.
The
54*
and
that the
want or
THE PURCHASERS RIGHT

absence or presence of these covenants, or of some of them,
has a very material bearing upon the question.
Thus,
would be no
and acting upon
failure of title
legal de-
in an executory contract,
fence
this
valuable and conclusive a considera-
posed train of decision, which,

it
it
was
down
the true principle of

was held that the defendants,
said, laid
law,
sup-
such
received
formed so
tion as to preclude all question as to

title, seems opposed to principle
the
and authority Knapp

;
v.
Lee, 3 Pick-
covenants,
could have no defence to the pay-
ering, (Mass.) 459; Rice
ment of the
said, that
It was further
notes.
whatever claim the defendants might have was upon their covenants, and that to allow them in
110
448
that action of assumpsit thus to de-
v.
fend themselves, would be to give

them a greater right as defendants
objection as to the measure of
having
than they could have as plaintiffs. It

was further suggested that a difficulty might arise in the way of such
a defence from the measure of damages, which, in that State were fixed,
on a covenant of warranty, by the

value of the land at the time of evic-
14 Id. 293
;
v. Goddard,
Vinson, 20 Id.
Grapes, 4 N. Hamp.
Frank
Tillotson
v.
v.
Cook v. Mix, 11 Connect. 432.

With respect to the other grounds
;
of the decision in the case of Lloyd

Jewell, it may be observed that the
dam-
ages seems wanting in application,

since, if circuity of action is to be
it is as competent and as
convenient for the jury to assess the
damages by any standard in that
avoided,
action, as in
dee were the

Grapes, 4 N.
one in which the venplaintiff;
Hamp.
Tillotson
448.
The
v.
ob-
which might be much greater or

than the purchase-money and
jection on the ground of there being

nothing to prevent the defendant,
was said, that if such a defence were allowed in that action,

not only would there be nothing on the
after having received a reduction of
record to prevent the recovery of dam-
the covenants, and thus obtaining a
ages upon the covenant for the very

defects for which an allowance had
double compensation, would equally
thus been made, but nothing on which

the payee of the note could found an
especially where its subject was

not embodied in a special plea, but,
as is usual in American practice (and
tion,
less
lastly, it
action against his
own
warrantor.
however, been since denied

in Massachusetts, that any such course
It has,
of decision as that referred to by the
Court
in
Jewell, ever prevailed in that State.

The cases of
Fowler
Lloyd
v.
v.
Shearer,
Mass. 19, and
Phelps v. Decker, 10 Id. 279, merely

contained loose dicta, and the docarticles
well apply to every other case of setoff,
as
was
also not unfrequent in
land before the
Eng-
new rules), contained
in a notice and given in evidence under the general issue. It is obvious,

as was said in Tallmadge v. Wullis, 25
\\Vmlrll, (N. Y.) 116, that the HU-rt

of setting up such a dd'cnrr would
an exe-
operate as an estoppel to the purchaser, if he should attempt to bring
themselves
an action for a breach of warranty.
trine that the covenants in
cuted deed, or the
damages, by reason of the defect,

from turning round and suing upon
643
where the deed contains no covenants, the purchaser is

wholly without remedy for the consideration was the mere
;
transfer to
in
him
of the estate of the vendor,
no way responsible
for the title,
and
if
who was
to he
the deed he deliv-
ered to the purchaser, he has received the entire consideration for which he bargained, entirely irrespective of any
future events, and the question of good or bad title is irrel1
Where the covenants are limited to the acts of the
ative.
vendor, the consideration would seem to be the present transfer of his estate, in the same condition as that in which he
himself received
and
and the future performance by himself
it,
when
his heirs,
necessary, of the undertaking that the
purchaser and those claiming under him shall not suffer

from any of his or their acts. 2 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,
may be called, a continuing consideration. Where

a defect has been caused by any one in the chain of title
or, as
it
prior to the vendor, this can

after
his
he had been once
damages
in this
satisfied for
manner; or if the
jury found a verdict which, in terms,

or by necessary implication, negalived the existence of the facts set
in this plea.
The
later cases in
up
Maine do not appear to support the
reasoning adopted by the Court in
Lloyd v. Jewell, but treat the case
as having decided merely that a partied failure of consideration was no
defence to an action on the contract
Wentworth
form no defence
to the
pur-
of action, was recognized with approbation, and the principle applied,
although with respect to real estate

said to be the settled law of the
it is
State that a partial failure alone of
land conveyed, constitutes no

defence to a note given in payment
of it Morrison v. Jewell, 34 Maine,
title to
146; Thompson
l
Supra,
v.
Mansfield, Id. 490.
p. 614.
The analogy between
the sale of
real estate with covenants,
and the
Goodwin, 21
sale of chattels with warranty, has
Maine, 154; Jenness v. Parker, 24

Id. 294
Herbert v. Ford, 29 Id.
554 and in the last of these cases,
already been noticed, and Lord Tenterden, in Street r. Blay, 2 Barn. &
price
v.
Adolph. 456, said that the
the tendency of modern decisions to

allow a broader latitude of defence
compliance
purpose of avoiding circuity
tract price.
for the
plaintiff's
icarranty was
part of the consideration for the conwith
Jtis
644
chaser from payment of the purchase-money, for the considand his vendor is not affected.
eration between himself
Where
sideration
estate,
the covenants are unlimited or general, the conseems to be the present transfer of the vendor's
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
Hence
be possible for any defect or

incumbrance whatever, whether caused by the vendor or his
chain of
title.
it
may
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
1
If there
conceived to be the true meaning of the term.
has, the purchaser would be at that time entitled to recover
is
damages upon these covenants, and circuity of action is

clearly prevented by permitting him, when sued for the purchase money, to
call
nant in that action
upon the
plaintiff'
in other words,
to
perform
his cove-
allowing the former
by
measure of damages
to defend himself to the extent of the
the opportunity to do so has not been presented in a

court of law, he can have recourse to equity, which, in the
or, if
exercise of a familiar jurisdiction, can, by its varied machinery, ascertain the mutual rights of the respective parties, and
mould
its decrees
accordingly, by enjoining the collection of
the purchase-money, either temporarily or permanently, by
awarding issues of quantum damnificatus, and by such other
means and under such

gencies of the case
1
Supra,
equitable conditions, &c., as the exi2
may
require.
p. 241.
2 See
passim as to the
modes of ad-
ministering reliol', su/n-u, pp. 154, 865,

&c. Morgan v. Smith, 1 1 Illinois, 201.
;
64<5
however, there has been no such eviction as would

purchaser at that time to damages, it is apprehended that where the covenants of warranty or for quiet
If,
entitle the
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
may
difficulty
covenant
often arise, except in those States in
which
held to be fully satisfied by the transfer

1
to the purchaser of a present possession.
It has been
said, in a former chapter, that in suing upon this covethis
nant, cases
may have
may still
is
may
occur in which, although the purchaser
paid nothing to buy in the paramount title, and

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-
such conveyance were made. 2

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
ment
till
similar circumstances.
See supra,
p.
20
On
the one hand, there are reasons
el seq.
Supra, pp. 73-78. Where there

a covenant for seizin, there can be,
2
resentatives,
and the personal rep-
resentatives of the vendee
as to this question,
and, in
such case, the latter, who are the
proper defendants in an action for
reason of
the
is
no difficulty by
want of capacity for
being taken advantage of by an asits
also
the
question of detention
parties in whom alone the right of

action on the covenant has vested,
purchase-money can never

between a vendor and the heir
and are therefore capable of setting

up the breach of this covenant as a
signee.
The
of the
arise
purchase-money, are
or the assignee of a vendee. It may

arise between the vendor or his
rep-
defence.
64-6
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 other, the temptation offered to
on the covenant.
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 preponderance in favor of the rule that unless there has been a
bond fide
eviction, actual or constructive, the parties

left to
pursue the remedies which
be respectively
must
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
decisions
have
principles, than
not
from the
always
from any
fact that the
been
referred
difficulty as
to
grounds of the
to
the
the
same
principles
themselves.
proposed to consider, in the first place, the rights of

the purchaser as they have been considered in courts of law,
It is
and secondly,
The
of equity.
prominent case in this country, as to the
right in a court of law to detain the purin courts
earliest
purchaser's
chase money of real estate by reason of a defect of
1
seems to have been Frisbee v. Hoffnagle, decided in
York
title,
New
an action on two notes given for

the purchase-money of land sold with a ^covenant of warranty, the defendant proved that the land had subsequently
in
1814, where
in
judgment against the plaintiff, and a

sheriff*! deed made to the purchaser, and although it was
also in evidence that the defendant had not been evicted or
been sold under a
llJohns.
50.
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,

" The consideration for the note has
entirely
per curiam,
failed, for the defendant has no title, it having been extin-
Here is a total,
guished by the sale under the judgment.
for
of
consideration
failure
not a partial,
although the defendant has not yet been evicted by the purchaser under the
;
sheriff's sale,
he
is liable
be
to
so,
and
will be responsible
To allow a recovery in this case

a circuity of action ; for the defendant, on
this failure of title, would be entitled immediately to recover
The motion to set aside the nonsuit must,
back the money.
1
mesne
for the
would lead
profits.
to
therefore, be denied."
The
objection to the soundness of this decision (which has
since been repeatedly overruled),

1
appears upon principle to
was no consideration
Backus, Peake's
for part of a
the jury might apportion and
find damages for part (also accord.
Phoenix Ins. Co. v. FiCases, 61

These cases can
quet, 7 Johns. 383.
Ledger v. Ewer, Peake, 216.) Except Robinson v. Bland, these were
Citing
2 Id. 346
Barber
v.
Morgan
Campbell, 40, note
v.
Richardson,
Tye
y.
Gwynne,
bill,
hardly be said to be authority for the
all
length to which this decision goes.

The case of Morgan v. Richardson is
Ins. Co. v. Piquet, the note
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
Ellenborough 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
Nisi Prius decisions.
In Phoenix
on which
was brought was given for a premium of insurance, and it was admitted that the plaintiffs were not
suit
entitled to as
much premium
note was given
The
for.
as the
difference
was therefore deducted from the

amount of the verdict.
Since this comment on these cases
was first written, the same exposition
of them has been substantially given
Lamerson v. Marvin, 8
Barb. S. C. (N. Y.) 9, infra.
2 Vibbard v.
Johnson, 19 Johns.
77; Lattin y. Vail, 17 Wendell, (N.
Y.) 188 Whitney
Lewis, 21 Id.
in the case of
131;
116
Tallmadge
v.
Batterrnan
v.
Wallis, 25 Id.
Pierce, 3 Hill,
648
THE PURCHASER
RIGHT
covenant was that of warranty, there had
be, that as the only
been no eviction whatever, either actual or constructive, so

as 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
In Greenleaf
was not touched.

Cook, decided in the Supreme Court of
the consideration
1
v.
the United States, in 1817, the defence of a failure of

to a note given for the
title,
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 covenants whatever, and, from what was said in the decision as
to the alleged defectiveness of the deed,
the absence of covenants
was referred
it
possible that
is
There was a
to.
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;
Lainerson v. Marvin, 8 Barb. S. C. (N.
that the covenants themselves were
a sufficient consideration.
Tarpley
" Few
cases," said Sharkey,
Y.) 14.
Ch. J., in Ploy v. Taliferro, 8 Smedes
& Marsh. (Miss.) 739, " have been
Pennsylvania and early South Caro-
more frequently referred to, and but

few have been less regarded than the
lina decisions, (infra,) which must be

regarded as local in their application,
case of Frisbee v. Hoffnagle."

The
case was, however, approvingly referred to in James v. The Lawrence-
fectly correct
burg
Insurance
Co.
Blackford,
Poage's Adm'rs. 2 Texas, 139, was

decided upon the authority of the
v.
though the decision
(Ind.) 525
which
v.
v.
reason of being made by administrators who had no power of sale, was a
deed
defence without more (see
accord, in equity,
Woods
v.
Humphreys, (Tenn.) 309;
North, 6
cited
and
commcMited on, infra), though the

decision seems to have been dircctcil
principally to controverting the doctrine in Lloyd v. Jewell, supra, p. G41,
elsewhere observed
is
Southwick, 10 Texas, 65
and in Cook v. Mix, 11 Connect. 438,

which decided that the fact of the
deed to the defendant being void, by
sufficient
facts,
subsequent cases in this State have

adhered to the course of decision
self was
(though the decision itbased upon another ground),
was perand
itself
upon the
Brock
Cooper
Singleton, 19 Id. 260.

2 Wheaton, 13.
It has also
is
fendant
and
been said that the
defective.
it is
If
it
be, the de-
require a proper deed

not impossible but there may
may
be circumstances which would induce a court of equity to enjoin the
judgment until a proper devil lu>

made. But the objection to the di-i-d
cannot be examined in this action."

never
" It has been
been disturbed.
Chief Justice Marshall,

" that there
Court,
stitutes
argued," said Mr.
who

a failure of consideration which con-
is
defence in this action.
fifood
64<9
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

The prior mortgage of the premises,
failure must be total.
and the decree of foreclosure, do not produce a total failure
The
of consideration.
equity of redemption
be worth
may
something, the Court cannot say how much ; nor is the inquiry a proper one in a court of law, in an action on the
If the defendant be entitled to any relief,
in this action."
note.
it
is
not
be observed of this case, which, upon the facts

1
presented, was most correctly decided, that at that time the
law was far from being settled as to the right of the purIt
may
chaser thus to defend himself,

decision seems
rest not so
to
and the true basis of the
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
was, without any recourse to him in the event of its

turning out defective, and hence the question of consideras
it
ation
1
was not touched
The
recent decision in
of Hussams
32,
was
to
nor
Vermont
Dampier, 2 Williams,
the same effect.
v.
sale
the deed
had contained
were absolute, and there was no
subsequent agreement on the part of

the vendor, to take back the article
but very recently, in the case of
;
Thus, ten years after the decision in Greenleaf v. Cook, it was held
by the same
if
Thornton v.
Wynn,12 Wheaton,183, that a breach
of warranty of a chattel was no detribunal, in
fence to payment of
its
price if the
55
Withers
213,
v. Green, 9 Howard,
(U. S.)
and Van Buren v. Diggcs, 11
Id. 461, this doctrine has
been much
modified, if not overruled.
650
a covenant of warranty or for quiet enjoyment, could the

have been different, for, as there had been no eviction,
result
the purchaser would not have been entitled at that time to

1
damages.
Frisbee
In
v.
Hoffnagle was followed in
Scudder
Andrews, 2
v.
the facts were very

similar to those presented in Green-
McLean, 464,
Cook, but the decision was the

other way. In an action brought on
leaf
v.
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
to
this
seems
have been treated by the Court

no consequence. " Nor
as being of
perceived," said M'Lean, J., "in

such a case, that it can be important
whether the instrument given by the
is it
plaintiff
to the
defendant as evidence
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
of
title,
defendant has a right to set up that

fact as a defence for an action on the
Why should he be driven to his

on the warranty, if a warranty
deed were given, of which, however,
there is no evidence ? ... If the defendant had entered into the possession 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 consideration, which would not be a mat-
Court, after reviewing the authoriheld that their weight inclined in
favor of the position, that a partial

failure of consideration could not be
set
East, 479
&
&
In
this case, the
Obbard
Malk. 483
v.
Betham, Mood.
Gray v. Cox, 4 Barn.

Cress. 108
Laing v. Fidgeon, 6
Taunton, 108 Washburn v. 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 covenants, must be that the purchaser
was
to
run the
risk of the title,
(as in the case of
Greenleaf
and
v.
Cook,)
the question of consideration could
not afterwards arise in an action for
sion,
therefore overruled.
cases cited,
son, 1 Campbell, 40 ; Solomon v. Turner, 1 Starkie, 51; Tye v. Gwynne,

2 Campbell, 346 ; Basten v. Butter, 7
the
demurrer was
The
as a defence.
up
however, to prove this, were by no

means very modern ones, relatively
to this doctrine. Morgan v. Richard-
action
Tlic
by Lat-
ties,
note.
ter of defence."
New York
purchase-money.
too,
that
it
The expres-
was
immaterial
whether the instrument was a deed

of conveyance or an agreement to
convey, seems to be somewhat at variance 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.
6ol
The defendv Vail, and substantially overruled by it.

ant, on being sued for the purchase-money of real estate
tin
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 demurrer, 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 off' the mortgage,
or averred any special damage by reason of its existence,

he would be at that time entitled to no more than nominal
2
damages, and hence the defence
not be made available to him.
So
in the subsequent case of
action of debt brought on a
Whitney
4
bond given
of real estate, which had
money
up by the
set
been
plea, could
Lewis,
v.
in
an
for the purchase-
conveyed
to
the
defendants with a covenant to warrant and defend them in

quiet and peaceable enjoyment, they pleaded that the
was not seized in fee, but that another was the real
plaintiff'
its
On
demurrer,
plaintiff',
principally
5
owner, and was then claiming adversely.
however, judgment was given for the

1
17 Wendell, (N. Y.) 188.
See supra, pp. 127, 134.

21 Wendell, (N. Y.) 131.
4 It is
that
by
(N. Y.) 506. The only remedy was

inequity. In Pennsylvania, the equitable principles administered in that
hardly necessary to mention,

statute in
New
York, as in
some other of our States, the consideration of a bond can, under some
restrictions as to pleading,
into to the
same extent
be inquired
as the consid-
eration of a simple contract

Stats. 406,
77.
2 Rev.
At common
law,
such a defence was, of course, inadmissible, the obligor not being entitied to avoid a specialty, even on the
State, through the
&
Rawle, (Pa.) 208.

The plea also averred that the
plaintiff knew of his want of title,

and concluded "and so the defendants say they have been defrauded."
There were, however, no distinct
allegations of
any false representaand the conclusion of the plea
tions,
Wyche Macklin, 2 Randolph, (Va.)

426 Franchot v. Leach, 5 Cowen,
the facts alleged in
corn-
forms, established a different rule Swift v. Hawkins, 1 Dallas,

(Pa.) 17; Stubbs v. King, 14 Serg.
ground of fraudulent representations;

Edwards v. Brown, 1 Tyrwhitt, 196 ;
v.
medium of
mon law
did not, as the Court held, follow from

it.
652
THE PURCHASER
on the ground that the

whole consideration. 1
Soon
came
after,
RIGHT
plea, being- in bar, did not
the case of
Tallmadge
v.
go
to the
where
Wallis,
an action of debt on a bond, the defendant pleaded that
in
was executed
it
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 lawin
fully seized of
consideration
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 considTo this the plaintiff demurred.
eration had wholly failed.
There was also a plea of non est factum^ upon which the
was found for the plaintiff, and damages assessed to
issue
The demurrer was
depend upon the issue of law.

tained by the Court below,
Frisbee
case
cited
Hoffnagle was in
y.
and
relied
on
for
sus-
whose judgment was affirmed

no
this
ther said, that the plea furnished
the
ground for saying that the consideration of the bond had failed
the plea
defendants, but its authority was rejected by Bronson, J., who, in delivering the opinion of the Court, based
on several grounds. In
" the
it was said that
consideration on both sides was executed
not executory. Nothing was
to be done in future.
Although a
did not go to the whole consideration

as it alleged that the plaintiff Jiad not
accurate to say that an executed consideration had failed

.
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 v. Hoffna^lr,
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
and
far.
his decision
the
first
place,
right of action might afterwards accrue 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
on their obligation, I do not see how a breach

(if it had been alleged) of the plainlrti ncc.
tiff's covenant could be a
It would be allowing a set-off of one
It was furaction against another."
in
this
action
The
third
ground of the decision
was, like that taken in Lloyd
v.
.K
w-
(supra, p. G41, note), that the covenant was a sufficient consideration

ell
for the
2
purchase-money.
25 Wendell, 113.
653
l
and on the case being removed to
by the Supreme Court
the Court of Errors, Chancellor Wai worth, who delivered
;
the opinion of the majority of that Court, held that the plea
In the first place, if it was to
two grounds.
was had
upon
be considered as going to the whole consideration, it was bad,

as not averring that the grantor had no estate or interest
whatever
as the consideration
defendant had acquired any
however small
and
had not wholly failed if the

under the deed,
estate or interest
in the
second place,
if
intended as a
of consideration, it was bad, because

plea of a partial failure
2
such a defence could not be pleaded in bar, but should,
under the Revised Statutes, be embodied in a notice, and

3
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 judgment, and in deciding the case ad-
amount
to
Burton
be recovered.
v.
Reab v.
Stewart, 3 Wendell, 326
M'Allister, 8 Id. 109. In the present
;
Cox, 6 Barb.
case, the consideration of this bond

had not wholly failed, if the defendant acquired any estate or interest
whatever in the premises, or in any
want of consid-
part thereof, or any benefit by virtue

of the conveyance. The defendant,
eration," said Chancellor Wai worth,

" the defendant
either
that
therefore, instead of pleading in bar

of the action, should have pleaded
defence in bar of the action, or give

it in evidence under a notice,
upon a
the general issue of non cst faclum,

and given notice with said plea of the
plea denying the execution of the

instrument declared on.
partial
partial failure of title, for the
verted to the opinion delivered in

Whitney v. Lewis."
2 S. P.
S. C.
v.
McCullough
(N.Y.)391.
3 " If there is a total
may
plead
however, can-
not be pleaded in bar under these

statutory provisions, for the presumption 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 partial failure
of consideration would not
be a
full defence, but could

only be
given in evidence in reduction of the
55*
purpose
of reducing the amount to be recovered upon the bond."
The following general remarks

were then made upon the subject
" The
now under consideration
whether
a
total
failure
of
question
:
title,
upon a conveyance with war-
ranty, is a good defence to a suit upon 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 *
THE PURCHASER
If
RIGHT
be objected to this decision that the plea followed

the usual form of a declaration on a covenant for seizin,
it
broken
something equivalent to an
eviction, there appears to be great
an actual eviction of the purchaser

within six years after the conveyance,
and by a title or claim which entitles
permitting the purchaser

a partial failure of
the party recovering the property to

inesne profits as against such vendee
until there has
been an evic-
tion, or
difficulty in
to
show a
title,
total or
either in bar of the suit or to
reduce the amount of the recovery.

It is a well-known fact that land is
with
conveyed
frequently
warranty, which
general
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,

which may, perhaps, at a future pe-
means of
riod be the
evicting the
purchaser; and to protect the purchaser and enable him to recover

against the vendor in case of eviction,
the covenant of warranty is inserted
And
in the deed.
yet in
many
cases
of this kind, the purchaser continues

and enjoy the land until all
to hold
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

the original patentees or their
title in
heirs, or in
ceived a
some one who had
title
from them,
re-
directly or indirectly
might be very difficult,

if not
impossible, for the vendor to
trace a perfect claim of title from the
it
original patentee to himself, although

he was in fact the legal owner of the
premises at the
time of the
sale.
lYnnitting the purchaser to set up

such a defence before eviction, would,
as a general rule, be making ;i new
contract for the parties, which they
never intended
selves.
to
make
for
them-
But where there has been
from the time of
his purchase, so that
amount of damages which he

would be entitled to recover upon the
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 purchase money. In such a case, I can
see no good reason
avoid
to
ant,
why
the defend-
circuity
of
action,
should not be permitted to plead such

total failure of consideration as an
absolute bar to the
manner
suit, in
as if the note or
the same
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-
vendor having covenanted that he was seized of the

sideration, the
premises absolutely in
had shown
fee, if the
plea
that at the time of the
conveyance, he had no estate or inwhatever in the premises, or in
terest
any part
thereof,
it
would have gone
whole consideration, and in my

opinion would have been a valid bar
to the
to the suit
upon the bond
and the
Court, in the absence of any allegation in the pleadings to that ellect,
would not presume that the purchaser

ever
AV.-IS
in
possession of land
in
which he had acquired no right whatever iindi'i- tin- conveyance, lint the
plea
is
showclearly defective in not

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
he answered, that in the
seems by no means
that the
definitely settled
place
for seizin are, as a
of
for
breach
the
a
covenant
damages
first
it
matter of course, necessarily measured by the considerationSuch a result, where the purchaser has paid nothmoney.
and may be still in

from the
possession, can, in many cases, only occur where,
loss so
and
the
of
title
is
so
the
failure
evidence,
complete,
ing to extinguish the paramount
title,
morally certain to happen, that a Court might

in directing the
l
ation
money
tled, that
jury
to assess the
and, however this
where the
damages by
may
failure is partial,
it
be,
feel justified
the consider-
seems well
set-
although the purchaser
recover damages pro tanto, yet he cannot make use of

2
the action on the covenant to rescind the entire contract.
may
Hence such a defence
is
bad,
if set
intended to be in bar of the action.
a plea which is
In the second place,
up
in
the technical rule which allows the breach of a covenant for
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
seizin to
action.
ing an absolute failure of the title, as

the bond was presumptive evidence
of a good consideration for the whole
amount of the purchase-money for
which
it
fore, of
was given.
The
onus, there-
showing that the considera-
tion has wholly failed, lies
defendant.
He
upon the
might probably have
reduced the amount of the recovery

by proving, under a notice, a partial
failure of title, but
to
do
by a
so,
he must be
cross suit
his deed."
having neglected
left to his
remedy
upon the covenants in
See supra,
See supra,
p. 73.
p. 92.
3 It
is, in general, said that a plea
of set-off should be as particular as a
in another action, and

where notice of special matter is
given under a general issue plea, as
declaration
a substitute for a regular plea of setCourts are, in general, very par-
off,
ticular in requiring that
it
shall
be
and
precise.
Although, therefore, a technical rule allows a breach
full
of a covenant for seizin to be assigned
by merely negativing
its
words, and
656
In the recent case of Lamersoa
1
Marvin, the defend-
v.
being sued on his bond given for purchase-money,
ant,
proved that the premises had been, before the execution of

his deed, which contained
general covenants of warranty and
for quiet
sold
under
a foreclosure of a mortgage
enjoyment,
given by a prior grantor, though the possession still remained with the defendant. The right of the defendant to
recoup as for a partial failure of consideration, or for damages for fraud, or breach of the covenants in the deed, was
Court observed, claimed

expressly disclaimed on the trial
not, the
upon
the
ground
in the answer,
;
and was
and the defence rested
that the facts established a
flat
bar to the
v. Hoffnagle
(which, it was contended, had never been directly overruled in New York,)
being relied on in support of this position ; but the Court,
action, the case of Frisbee
looking at all the authorities in that State, was of

opinion that a failure of consideration had not been shown.
after
If Frisbee
v.
Hoffnagle had
never
been
would
bound
to follow
doubted, the Court

question.
But
it
feel
questioned or
it without
had not been regarded as good authority,
or at least as unquestionable, either in their own courts or

The defendant received the possesthose of other States.
from
sion
his grantor,
and
still
retained
it,
and
until
he had
been evicted or compelled in some way

of the mortgagee, he should not be permitted to draw in
question the title of his grantor.
to recognize the title
with no averment of special damage

(as is required in suing on the other
covenants for
that
it
title) it is apprehended
would be held, as was substan-
tially the case in
Tallmadge
v.
Wallis,
that the plea should set forth particularly the breach of the covenant and
tin-,
(lania-c wliirh
(and
v.
this
!i;t<l
IHM-II
Mistaim-d
was the decision in Furness
Williams, 11
Illinois,
238)
and
the
more
so,
because such a defence
not admissible, in general, under

the statutes of set-off, but is admitted
is
either to
show how much the contract
price should be reduced by reason of

the non-compliance with the covenant,
as.
in
Mondel
v.
Steel, 8
Mees.
\ Welsby, 858, or, as in New York,

by way of recoupment.
i
8 Harbour's S. C. (N. Y.) 11.
657
From
New
the foregoing- cases, it would seem to be settled in

York, that unless there has been an eviction, actual or
constructive, of the whole subject of the contract, no defence; to

payment of the contract price can be set up in a
1
plea in bar, and that such a defence, when allowed at all,
1
So
in the case of
Boone
v.
Eyre,
Blacks. 273, note, the plaintiff

conveyed to the defendant the equity
1
II.
of redemption of a plantation in the

West Indies, together with the- stock
of negroes thereon, in consideration

of 500, and an annuity of 160, and
covenanted that he had a
plaintiff had licensed the defendant

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
to the plantation, was lawfully possessed of the negroes, and that the
deed, but with the benefit to the defendant of half the royalty, the plaintiff, in consideration of
2,200 to be
defendant should quietly enjoy and

the defendant covenanted that the
paid in instalments, assigned the patent to a trustee for the purpose of
and truly performing all

and everything therein contained on
this arrangement, and

covenanted that, notwithstanding any
act done by him, the patent was valid,
and should be held and enforced by
<K)od title
plaintiff well
his part to be performed, he, the defendant. would pay the annuity. The
having declared in covenant

non-payment, the defendant
pleaded that the plaintiff was not, at
plaintiff
for
its
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

distinction
covenants
is
(jo
very
to
said,
clear, ichere
the ivhole
of
"The
mutual
the con-
sideration on loth sides, they are mutual conditions, the one precedent to
the other.
But where they go only
carrying out
the trustee without lawful
let,
&c.,
by
the plaintiff, or any claiming under

To a
him, or by his act or default.
declaration in covenant for non-payinstalments, the defend-
ment of the
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
up by the pleas
ation
is
to
be
set
failure of consider-
is invalid, and
bound by his covenant
money, which appears by
that the patent
to a part, where a breach may be

paid for in damages, there the de-
that he
fendant has a remedy on his covenant, and shall not plead it as a con-
the deed to be the purchase-money

for a patent which, it is said, turns
dition precedent (see also M'Cullou^h

Cox, 6 Barb. S. C. (N. Y.)
out to be worthless.
If this plea were to be allowed,

any
one negro not being the property of
the plaintiff, would bar the action.
The first is,

jections to this defence.
that, there not having been any eviction,the consideration does not wholly
So, in the recent case of Cutler v
fail
Bovver, 11 Queen's Bench, 973, the
events bound by the
v.
390).
to
is
pay the
not
to us that there are
for
But
it
appears
two decisive ob-
the defendant was at all

first
indenture
658
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. 1 What will be sufficient to entithe defendant thus to recoup his damages, will of course
Where the only covedepend upon various circumstances.
nants are for quiet enjoyment or of warranty, nothing short
tle
of an eviction, actual or constructive, will enable him to do

2
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 defendant, the same rules which are enforced as to limiting a
3
to the amount thus paid by him, will, it
plaintiff's recovery
conceived, be equally applied where the position of the

purchaser is that of a defendant.
is
The
New
general principle established by this class of cases in

York, that the mere absence of title will not, of itself,
pay the monthly royalty to the

whether the patent were
valid or not, as he would be estopped
in an action upon that deed from denying the validity of the patent and
to
plaintiff,
by the deed upon which the action is

brought, he becomes entitled to half
that royalty. And, in the next place,
the proposed defence could only be
the other for a breach of their respecThere is no plea of

tive covenants.
fraud or eviction
and
it
appears to
us that, upon this deed and these

pleadings, the invalidity of the patent,
as stated in the pleas, affords no
ground of defence at law, to an action

upon the covenant in question, which
may be considered
in effect as a
mere
available in case the covenant
covenant in gross for the payment of
which the action
money."
upon
was brought was a
And where no
dependent covenant, to be performed

only if some condition is observed by
nothing short of a total failure of
the other party but in this case the

covenants of the plaintiff relating to
consideration
is
general issue
the patent, and that of the defendant

for payment of the purchase-money,
are wholly independent of each other;
and each party may recover against
&
notice
is
given,
admissible under the
Tibbets
v.
Ayer, Hill
Denio, (N. Y.) 176.

2
Lamerson
v.
Marvin, 8 Barb.
C. (N. Y.) 11.

3
See supra, pp. 138, 280, &c.
S.

constitute a valid defence to the
payment of
659
securities given
for the purchase-money, has been very

generally recognized
Thus where the defendant offered
throughout the Union.
to prove that the
premises which had been
with covenants for seizin and of warranty,
conveyed to him
were levied upon
under judgments previously obtained against his grantor, it

was held by the Supreme Court of Maine that the evidence
was
So, where in the same State the

" the usual covenants
which
had
been
land,
conveyed with
of warranty," was subject to a mortgage, which the mortrightly excluded.
gagee had announced by advertisement his intention of foreclosing, it was held that these facts did not constitute a
defence to payment of the purchase-money, as it did not
appear any actual entry had ever been made by the mort2
gagee, or the defendant been dispossessed of the premises.
Wentworthu. Goodwin, 21 Maine,

"The attachment and subsequent levies on the land conveyed,"
1
be the subject of attachment and
sale.
150.
Nor
who delivered the

"
opinion of the Court, were incumbrances upon the title which was con-
received the rents and profits of the

land from the time of conveyance
said Shepley, J.,
veyed
to the grantee, subject to them.
The grantee had acquired
the legal
off these
right to
pay
become
perfect.
incumbrances,
and by so doing, his title would have
If the effect
may
have been, that through neglect to redeem, the title of the grantee has been
destroyed, that is a result which may
often happen from a like cause, when
the
title is
more or
less
incumbered
at the time of conveyance.
It did
did the proposed testimony show,

whether the grantee had, or had not,
And if any
were received, he was entitled to retain them
for no other person could
call upon him to account for them.
The burden of proof was upon him.
to the periods of levy.
The
ruling of the presiding
was therefore
be proved
by the defendant, were insufficient to
show a total failure of the consideration of said note/
2
Jenness
The
posed to be introduced, whether the

lands were, or were not, appraised at
cided so
legal presumption 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
Judge
That the
facts aforesaid, offered to
not appear from the testimony pro-
their full value.
'
correct,
u.
"
Parker, 24 Maine, 289.
case seems not to have been de-
much upon
this
ground, as
on the ground that the failure of consideration was not total, there being
no evidence that the defendant had
not received the rents and profits of
" If
the land.
anything valuable
does pass to the grantee," said the
660
So, where
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
in
defence, and, even if he had,

tanto.
two
in
it
would only be a defence pro

same State, where the
late cases in the
So,
defendant pleaded that the note in suit was given for the
purchase-money of land sold to him by the plaintiff with a
covenant against incumbrances, and that certain incumbrances existed upon the property, which were still outstanding,
2
Decisions
the pleas were held bad on general demurrer.
Court,
" short of an absolute

interest,
in conformity to the terms of the deed,

it
becomes a case of unliquidated
damages, the remedy for which should

be sought by an action of covenant
broken."
is
This
strictness,
however,
not in accordance with the more
modern
and
decisions,
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

was responsible in
had been a breach
that the plaintiff

damages if there
som, 4 Ind. 90 Major v. Brush, 7 Id.

232. In James v. The Lawrensburg
;
Insurance Co. 3 Id. 525, the case of

Frisbee v. Hoffnagle was, however,
cited
and approved, though the dewas based upon different
cision itself
grounds.
2 Clark
v.
Snelling, 1 Carter, 382
S. C. 1 Smith, 187; Streeter v.

ley, 1
Carter, 401
S.
C.
Hen-
Smith,
In the latter of these cases, the

plea set forth that there were unpaid
201.
taxes on the land, unknown td the

defendant that the land was after;
wards sold
for those taxes,
and a cer-
of his contract, but it did not appear

from the current of authorities that
tificate
the defendant was to be limited to
pleas rely on a breach of the cove-
remedy alone, and it was said

that the tendency of decisions had
been to allow a broader latitude of
nant against incumbrances, but they

do not show the defendants to have
been injured by the incumbrances.
that
defence than was permitted by the

bills of exchange and
of the sale given to the pur" These

chaser but the Court said,
;
No
eviction
under the incumbrance
Had
common law to
is
promissory notes, where the justice of

the case required it, and a circuity
the taxes, he might have thus lessened the amount recoverable in the
of action could be avoided.
note, but
Whisler
(Ind.) 100
v.
effect
Smith
v.
Buell
v.
Hicks, 5 Blackford,
see also to the same
Ackerman,
Id. 541
Tate, 7 Id. 55
Pomeroy v.
Burnett, 8 Id. 142 Hooker t*. Fol;
shown.
the defendant paid
no such payment is alleged.

demurrers were rightly sustained; Whisler v. Hicks, 5 Blackford, (Ind.) 100; Smith v. Ackenn.m,
The
Id. 541
Clark
v.
Snelling.
Besides,
had these pleas been a defence, the
661
will be found in recent cases

substantially to the same effect
1
throughout the United States.
Hoy
v. Taliaferro,
decided in Mississippi, in I84/7,2 waa
demurrers to them
would not have injured the defendant, as he might in that case have
premises at the maturity of the latest

note given for the purchase-money,
he would remit so much per acre for
proved the facts stated in the pleas,

under tli general issues Shanklin
no
sustaining
the
v.
Cooper, 8 Blackford, 41."
See,
the same effect, Oldfield

Stevenson, 1 Carter, (Ind.) 153.
also, to
In Chase
v.
v.
Weston, 12 N. Hamp.
415, the defendant, after the execution of the deed to him, which contained " the usual covenants of warranty," mortgaged
"
covenants
to
it
" with the usual
one who foreclosed the
mortgage, and then paid off a prior

mortgage which had been executed
by the vendor before his conveyance
to the defendant.
The Court seemed
it
very doubtful whether
under the authorities (Lloyd v. Jewell, 1 Greenleaf, (Me.) 352, Howard
v. Witham, 2 Id. 390, Knapp v. Lee,
to think
3 Pickering, (Mass.) 452, 4 'Kent's
Com. 472), even a total failure of

consideration could be admitted as a
defence, but decided the case on the
ground that
as the
defendant had
assigned the land to another, he must

also be deemed to have
parted with
such portion to which he could show

title.
Soon after, the defendant
sold the lane], without covenants, to

a third party, and being sued on the
last of the notes, the above facts were
given in evidence, and also that there

was a paramount owner in possession
of part of the premises.
The plainargued that the defendant had
tiff
assigned with the premises, all his

under the covenants, but the
right
Court held, that the assignment to the

was not a waiver of the
third party
It
right reserved to the defendant.
was not a thing that could pass to a
purchaser, and the defendant's right

stood precisely as it did before his
assignment.
1
Lathrop v. Snell, 11 Gushing,

453; Drew v. Towle, 7
Foster, (N. H.) 412, where it was
held that so far as the damages were
liquidated they could under the local
(Mass.)
be
statutes of that State
set off,
but
his right to the benefit of the cove-
not where their amount required to

be assessed by a jury Dix v. School
Hill v.
District, 22 Vermont, 316
nants, which he
would be precluded
from suing on until he had satisfied
the damages recovered against him
by his vendee. See supra, p. 359. But
Butler, 5 Ohio State
in Chaplain
10 Missouri, 72; Wheat v. Dotson,

7 Arkansas, 699
Robards v. Cooper,
1 6 Id. 290,
(where the text was cit-
v.
Briscoe, 11
Srnedes
& Marsh. (Miss.) 372, the deed to

the defendant, after reciting that there
was a small part of the premises to
which the vendor had not a
complete
and sufficient title, provided, that if
the latter were unable
complete
title
to
show a
whole of the
56
to the
11.
207; Hooker
Folsom, 4 Indiana, 91 Major v.

Brock v. SouthBrush, 7 Id. 232
wick, 10 Texas, 65 Connor v. Eddy,
v.
v. Henson, 17 Id. 2:>4

Foreman, 18 Id. 249 Salmon v. Hoffman, 2 California, 138.
2 8 Smedes & Marsh. 727.
ed)
Key
Martin
y.

a strong case as to enforcing the rights of the vendor. The
defendants, who had purchased land with covenants of general
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
when
the
after,
years
property was purchased 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
The covenants of warranty

given for the contract price.
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 authority to
show
that a sale either
equivalent to eviction.
original vendor
by a marshal or
Manifestly,
it
was not
sheriff
was
so, since the
might
protect his vendee by purchasing
from the marshal's vendee, or it might happen that the title
acquired from the marshal would not be sufficient to effect
an eviction.
still
The voluntary abandonment
in this instance
was said, no strength whatever to the defence.

gave,
court of law, though the proper tribunal for the trial of
it
would not try such titles collaterally.

The
must
be
otherwise
the
title cannot be
direct,
proceedings
Where there had been an eviction, the defence
questioned.
to land,
titles
of failure of consideration might be let in, because the supeof the outstanding title would then be established by
riority
a judicial determination.
The inquiry would then be narto a single matter of fact, susceptible of
being
2
proved by record evidence.
rowed down
See passim, supra, p. 245 et seq.

There was not," said Sharkey,
perhaps quite two years before the

marshal's sale.
They were not ac-
" a total
failure, for another
the defendants held posses-
countable for the rents and profits

during that time to any one. This
2 "
Ch.
J.,
reason
sion
under their deed
for nearly or
brings the case completely within the
663
In the subsequent case in the same State of Duncan v.

1
Lane, the defence relied on was that the vendor's title being
made by himself
derived under a sale

invalid, while in
sold under a
ant was
still
Heath
v.
Newman,
as administrator,
was
the premises had been
judgment against the vendor, but the defendIn both these cases, the covin possession.
of general warranty, the Court held that
no eviction, the defence could not be
enants being
there having been

set up.
Dennis
v.
Heath,
was somewhat
The
similar in
circum-
its
land, which had been

Hoy
"
full covenants of warconveyed to the defendant with
under a judgment obwas
sold
and
levied
ranty,"
upon
stances to
Taliaferro.
v.
reasoning of the Chancellor, in Tallmadge v. Wallis, 25 Wendell, (N. Y.)

197,(sM/?ra,p. 652).
too,
it
falls
Greenleaf
v.
this
ground,
within the decision in
Cook, 2 Wheaton, 13,
(supra, p. 648),
failure
On
where
was not
total,
it
was
said the
because the
equity of redemption might be worth

The possession of the
something.
land for two years must haVe been

This fact, howworth something.
ever, in the present case, is not very
material when the case is considered
under
the
the
general warranty
absence of an eviction is conclusive
;
upon the defendants." It is, however, 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-
merely have prevented the recovery of interest on

the consideration-money. See supra,
nants, but would
p. 93.
Duncan
It
v.
was further said, as in

Lane, 8 Smedes & Marsh.
753, that the defendants could not

avail
themselves
covenants
"
grant, bargain
press
and
covenants
away the
of
implied
of
the
by
statutory
the words
sell," as
the ex-
warranty
did
effect of all implied cove-
This, however, which is correct law as to the covenants arising
nants.
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

and approved in Feemster v.
May, 13 Id. 277, where it was concited
sidered to be settled that " a ven-
dee who has been put in possession of land and who has accepted
a deed with covenants of general
warranty of title, cannot defend a
brought for purchase-money, upon the ground of failure of consideration from defect of title, until he
suit
is
actually evicted."
The
case itself
was, however, one of an executory

contract.
664<
its vendor, and

purchased by
one who, having previously been the tenant of the vendor,
tained against the plaintiff,
had, since the sale by him, attorned to the father of the

vendee, supposed by him to be the purchaser, and after the
In
purchase at the sheriff's sale, held the land as his own.
an action brought upon a note given for the purchase-money
of the land, the Court before whom the cause was tried instructed the jury that these facts constituted an eviction
so as to entitle the defendant to a verdict, but the
Supreme
Court reversed the judgment, holding that there had been

" There has been no action of
no eviction.
ejectment, no
judgment, no turning out of possession, nothing but a

voluntary surrender of possession, and yielding of the right
without an
effort to
sale there be a
under
maintain
paramount
it.
title
If at the time of the
and an adverse possession
the holding out of the purchaser is equivalent to

But this case is not within this principle. The
eviction.
record shows that the plaintiff sold to the defendant and
it,
put him in possession under a deed with covenants of general warranty, and that the defendant voluntarily surren-
dered to another, likewise claiming title under the vendor

To
by a subsequent purchase under a prior incumbrance.
hold that this satisfied the requirements of the law would,
n this, and in many other instances, cause the trial of
to
titles
are not
law."
It
We
land in an
action of debt or assumpsit.

thus
to change the established rules of
disposed
may
be observed of this case, and of
i In
Dennis v. Heath, the note
sued on was one of four, each for
$1500.
The whole
subject
of the
Hoy
v. Taliaferro,
was no direct proof of fraud or connivance in Dennis v. Heath, but the

plaintiff's
counsel urged
that these
purchase seems to have been levied

upon, and was sold for $325 to one
and the Court
Perkins, who was connected by marThere

with the defendant.
opinion alluded
the connection of the parties.
riage
circumstances savored strongly of

in
delivering
to the price
it,
tlu-ir
and
665
to land in
an action for
that the objection to trying the
title
must equally apply in every case where

the paramount title had not been established by a judgment
Yet to give to such a judgment a
of a court of record.
contract price,
its
conclusive effect
vouched or
and
it is
would
be,
where the vendor had not been
notified, contrary to well-established
apprehended that
would be bound
to
make
principle,
every such case the purchaser

out the adverse title under which
in
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
chase
action on a promissory note for a balance of purmoney 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 sustained 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
verdict having been found
rights as to the remainder.
for the defendant,
of the
plaintiff',
it
that
was urged, on writ of error, on behalf

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-
and further, that there had been no eviction.

held, however, that apart from the fact that the
sible at law,
The Court
act of
i
Congress expressly invalidated any transfer of a pre-
See supra,- p. 239
et
2 i
seq.
56*
Cushman, (Miss.)
42.
666
1
emption right before the issuing of a patent, there was evidence in the case sufficient to justify the belief that the
had on discovering the defect, considered the con2

as rescinded, and that, as to the eviction, as the
parties
tract
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
amounted
possession as
to
an eviction. 3
See supra, p. 43, note.
liaferro, 8
The land had been
Heath
to
by Hyde
testator,
originally sold
Leonard, the defendant's
who had paid
part of the
purchase-money in cash, and given

his note at twelve months for the
balance.
The note in suit had been
also indorsed
ant,
who was
by
Thistle, the defend-
afterwards Leonard's
When
executor.
the defect of
title
nis
v.
Heath,
Craig, 2
But
this
&
Smedes
Newman,
v.
Marsh. 727
1 1 Id.
206
Id.
201
Duvall
Den-
v.
Wheaton, 45, and notes.

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
tenant, and constitutes a breach of the covenant of
was
eviction of the
had not parted with, and afterwards
Gore v. Brazier, 3 Mass.

warranty
523 Wyman y. Brigden, 4 Id. 150.
discovered, Hyde returned to

Thistle (Leonard having died in the
mean time) all the notes which he
exerted himself to procure for Thisthe title to as much of the land as-
And if one
tle
enter and hold adversely,
could be bought, to furnish him with

a consideration for the payments re-
alent to eviction
ceived.
and
It is
on which
suit
presumed that the note

was brought had been
having a paramount
Curtis
3 Fair-field, (Me.) 499.
it is
v.
title,
equiv-
Deering,
And
entry
legal possession taken under a

mortgage, to which the estate was
when conveyed
taken by the plaintiff after its maturity, as there was evidence of his hav-
subject
ing made inquiry whether any set-off

existed against its payment.
3 " As the title has
said
ams, 8 Pickering, 54 7. The foregoing

seem to have been regarded as cases
of legal eviction without actual ouster.
who delivered the

" we come next to
opinion,
inquire
whether the defence is made comThe deed conplete by eviction.
favorable ground for the defence.

The land belonged to the United
failed,"
Sharkey, Ch.
tains
but
J.,
general covenant of
warranty, and it has often been decided that there is not a total failure
of consideration without eviction, or
something equivalent;
Hoy
v.
Ta-
constitute
But
an eviction
this case stands
States,
to the tenant,
Tufts
r.
Ad-
upon even more
which does not resort to a
evict the possessor he may

bp turned off in a summary way. It
suit to
was not necessary that the government should resort to a suit to establish title.
Any
one
in
possession of
667
In an early case in Alabama, the Supreme Court, while

approving the course of decision which suffered a partial
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
failure of consideration of personal property to
remained unrescinded.
real estate so long as the contract
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
sale
possession
constitutes,
and such
a
therefore,
eviction, or certainly
what
is
legal
equiva-
possession of the, land, he cannot, in

a case free from fraud or misrepresentation, 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.
possession, it must have been

Thistle, as executor, his wife being a
joint legatee of all the real estate ;
" Second. If there

has been fraud
or misrepresentation in relation to
the validity of the title or the absence of incumbrance on it, a court
and if he has entered under a paramount title, this is equivalent to an
of law or equity, if the title be defective or incumbered, will relieve
an actual ouster was imunder 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 possesThe point seems to have been
sion.
from payment of the

purchase-money
without eviction,
notwithstanding a
party may have received a deed with
lent to
it.
But, further, if any one
had
eviction, as
possible
overlooked."
In the late case of Wailes
u.
Coo-
per, 24 Mississippi,
upon
232, the Court,

examination of the various de-
cisions in relation to the relief
which
a vendee of lands was entitled to receive in that State on account of a

failure or defect of
title,
considered
the following rules to be very clearly
and
explicitly established
Where a contract for the
:
" First.
sale
of
been executed, and

the vendee has received a deed with
covenants of warranty and taken
real estate has
covenants of general
warranty, and
gone into possession of the land.

" Third.
Where the vendee at the
time of his purchase knew of the defect 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
even
recovery,
after
eviction, but
must rely upon
Nor
the covenants.
will a
court of
chancery in such a case, as a general
any relief; but will remit

the party to his
covenants, such being the remedy provided for himself."
rule, grant
See as
to relief
in
equity, infra, p.
676, etseq.
1
Peden
v.
Moore,
Stewart
&
Stewart
&
Porter, (Alab.) 81.

2
Wilson v. Jordan, 3
Porter, (Alab.) 92.
668
THE PURCHASER
RIGHT
had been sold under a judgment

against a prior owner, but the defendant still remained in
possession, it was held that evidence of these facts was prosubject of the. contract
1
" If a failure of consideration arise from the

perly rejected.
conveyance of a land title, which is defective by reason of a
in another, or other
title
paramount
of the
lidity
title
incumbrance, the inva-
must be ascertained by an
eviction, or
something tantamount thereto, before the relief can be

So in a later case, 2 where the circumstances were
sought."
was refused on the ground that the

any, being unliquidated, could not come within
3
of set-off, and that the failure of consideration
similar, such a defence
damages,
if
the statute
was but
partial.
These decisions were followed by the case of Cullum

The Court
said that they took it

granted that this incumbrance
was covered by covenants for title
1
v.
be
had
failure of the consideration, could
when
for
sustained
which the vendor had given, as otherwise the defence would of course be
wholly inadmissible on familiar prin-
been executed by deed with war" Not

only is there a security
ranty.
of a higher nature, the covenant
against incumbrances, but it would
ciples.
The
case of Frisbee
v.
Hoff-
nagle was commented upon in
the
the
contract
involve the jury in the investigation

of matters either foreign to the ques-
decision in this case,
and disapproved
and the authorities in South Carolina and Pennsylvania were also referred to, and correctly placed upon
tion before them, or not proper for
of,
this investigation.
the ground of local practice in the

former State and the absence of a
land, either in whole or in part, by

proving that he had paid off an out-
See
standing incumbrance, it would certainly be open for the plaintiff to
court of equity in the latter.

infra, p. 700, et seq.
2 Dunn v.
White,
The Alabama
Alabama, 645.
statutes of set-off,
was said, were copied exactly from

the statutes of Geo. II.
it
Thus, if the defendant seeks to reduce the amount

of a note given for the purchase of
show that he was not bound
to dis-
charge the incumbrance, from some

illegality of consideration, or that he
did not think that, on princi-
such an
had himself discharged it
inquiry might involve an examination of intricate accounts between
ple, the right to reduce the amount

agreed to be given for the purchase
the plaintiff and the incumbrancer,

such as a court of equity could alone
of land by proof of a partial or total
with propriety adjust."
that
The Court went

it
so far as to say,
The Branch Bank
at Mobile,
which seems
to
669
have gone to
a greater length in restricting the rights of a purchaser, at

In an action on a
law, than any other modern decision.
promissory note for a large sum, the defendant proved that

was one of several given for the purchase-money of a lot
it
in Mobile,
conveyed with a general covenant of warranty
that after the sale the defendant discovered a
mortgage exethat the latter
cuted by the vendor a short time previously ;

" 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
discovered
soon
ing
it,
he offered
after, the
first
the lot," and that
to cancel the
when
the latter
deed and notes
that
vendor became insolvent and absconded, hav-
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
and made the pavement in front of it

that the
was
then
to
the
who
obtained
a
Bank,
mortgage
assigned
decree of foreclosure under which the lot was sold for less
the taxes,
than the mortgage debt

and
purchased by the Bank
2
it at the time of their
on
suit
the
note.
bringing
The Court, in delivering their opinion, did not consider it
held by
important to ascertain the period when the purchaser abandoned the lot to the mortgagee, or whether he was authorized so to do without suit, because
it
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
which
divided
the
boundary
jurisdiction between law and
4 Alabama, 21.
may here be observed, that the
note being held by the Bank merely
2 It
as collateral security for a

pre-exist-
ing debt, was held to
be subject, in
their hands, to all the defences which
could have been

original payee.
made
to
it
by the
670
equity
and
that
it
was immaterial whether
the defence went
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
to the
1
law from payment of the purchase-money.
i
It is
reasons
based.
due to the Court to state the

on which its decision was
" Without now
stopping to
inquire," said Goldthwait, J., who delivered the opinion, " whether these
circumstances
afford
a reason
for
a general
rule.
There are many disbetween the rules which affect real and personal estates, which
are distinctive features of the common law, and their ramifications extend so far that no one can clearly
tinctions
equitable interposition and relief, we

think it clear that they do not make
foresee the consequences of overturning them. Among these not the least
out a legal defence, even in the case

where the recovery on the covenant
important are the different modes of

succession after the death of the last
of warranty ought to be equal, or

The
larger, than the sum sued for.
reasons which induce this conclusion

are these
In the
first
place,
the
damages to be recovered on a covenant of warranty are, in their nature,

unliquidated, and therefore are not
the subject of a
according to
our judgment in the case of Dunn v.
White and Me Curdy,! Alabarna,G45.
Secondly, the covenant of warranty
set-off,
would not be extinguished by this

defence.
Thirdly, the covenant itself operates as an estoppel to the
effect to
grantor, and would have the
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 therefore the
liable to
vendor hereafter might be

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
may be supposed
which do not indeed apply to this
other difficulties
transfer to the purchaser or his as-
particular case, as it is presented

on the record, but which are con-
any subsequently acquired

which should be vested in the
clusive against the admission of this

defence as a general rule. Take for
signs,
title,
grantor.
ance,
all
Fourthly, by the conveycovenants running with the
land are ipso facto assigned to the

This last reason, it is appurchaser.
does
not apply to this case,
parent,
because the breach of the covenant

is
a consequence of the vendor's own

but it must so frequently apply to
act,
the cases, that it

the adoption of
would be more
decisive against
is
like
practice
which
an exception than
instance
the
case
of
an
eviction
after the receipt of large rents or

for which the purchaser is
profits,
not responsible to the evictor:
are
remain
unaccounted for,
or must not the defence be denied
under the inference of our previous
these
to
judgment
McCurdy.
"
in
Dunn
Again, a case
which seems
v.
White and
may be
to furnish
stated
an absolute
671
has been repeatedly and reauthority of this case

that State; and it is there said to be
cently affirmed in
The
that if a purchaser accept a deed with covenants

for the title, he cannot, at law, set up either fraud or
settled
failure
of
consideration
as
defence
the
to
contract
price.
test
of the unsoundness of
fence at law.
this
de-
In the event of the
death of the purchaser before evicand previous to payment of the
tion,
purchase-money, the estate would descend to the heir, whilst the personal
representative would be answerable
for the debt.
Which is entitled, the
to defeat the
representative
personal
action against him on the notes, or
the heir to his action on the covenant
of warranty V
" This examination of
principles
and authorities leads us to the conclusion that the defendant has
no
able defence at law ; but
is
it
avail-
asked,
whether it can be supposed that he is
remediless, in a case where injury is
We
answer that no
such consequence flows from the assertion of these rules.
Assuming
that the warranty was entered into
most perfect good faith,
in the
we think relief must be given in
so apparent ?
chancery, on the ground of the vendor's insolvency.
When
the de-
of decisions to
however
this
contrary; but
the
may
be, his insolvency
ground of equitable relief,

entirely within the influence of the
case of Pharr v. Reynolds, 3 Alabama,
furnishes a
529. It is useless to pursue an insolvent indorsement, but it is quite too

injurious to be allowed to pay him
money which he
never refund."
will
In the case of Pharr
v.
Reynolds re-
ferred to in this opinion, the Court

held that although equity would
after judgment on a plea in
abatement, grant relief in the nature
of a new trial, yet that where the
not,
bill also
prayed for an account, and

and absence
set forth the insolvency
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.
Knight
ton
v.
v. Hill, 6 Alabama, 785

Turner, 11 Id. 639; Pat;
England, 15
Mabson, 20
Id. 71
McLeHomer
fendant accepted of the covenant of

warranty, it was doubtless considered
more
as an effective security, and if he had

been evicted before the payment of
Christian, 28 Id. 558.

v.
the purchase-money, our impressions

tend strongly to the propriety of not
held that although the purchaser of

land, with whom the vendor has
permitting the vendor himself, if insolvent, to receive that portion of the
covenanted that the estate is free

from incumbrance, has a right to ex-
purchase-money which he would be

compelled to refund in an action on
tinguish outstanding incumbrances in

order to perfect his title, yet that
the warranty, though
we
are aware
v.
Purser, Id.
v.
Justice, 8
the
575
139
Id.
;
Thompson
Alabama, 793,
amount thus paid
v.
Thus, in Cole
will
it
was
not be

The cases, therefore, of Frisbee v. Hoffnagle, and Cullum v. The Branch Bank at Mobile, may justly be considered 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
purchase money, unless there has been an eviction of the subject of his purchase, either actual or constructive, they do
not hesitate to allow such defences in case such an eviction
Thus where, in Massachusetts, 1 the dehas taken place.

fendant on being sued on one of several notes given for the
" with
purchase-money of land which had been conveyed
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

fendant had been evicted, the Court, without
the general question whether,
dies existed, a
mere
nants of seizin
when
failure of title,
trial,
the de-
determining
other sufficient reme-
when
and warranty, would
there were cove-
constitute a defence
against an action for the consideration, held that in the present case it was consistent with every sound principle to al-
low the defence which was
meet
it
by showing
at the time of the eviction,

sideration,
and thereby
The
offered.
that the title
was worth
entitle
plaintiff
was good, or
less
might
that the land,
than the con-
himself to recover the
differ-
ence, but without evidence to this effect, he ought to be en2

So, in a later case, in the
tirely barred of his action.
allowed as a
set-oil' in
an action for
the purchase-money, nor avail the

vendee at law under the plea of fail-
ure of consideration.
The
princi-
pies upon which courts of equity

administer relief in that State, seem
see
to be the same as elsewhere
;
Andrews v. McCoy, 8 Alabama, 920

Walton v. Bonham, 24 Id. 513.
*
Knapp
v.
Lee,
Pickering,
459.
2
The
decision in this case seems
to some extent based

upon the insolvency of the party lia-
to
have been
same
State,
where the defendant
673
an action brought to
in
recover unpaid purchase-money, had been evicted under a

title
paramount to that of the plaintiff', it was held that the
failure of title
to a verdict,
made
in
many
was
total,
and that the former was
and decisions
recent cases.
to the
same
effect
entitled
have been
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
ble
on the covenants.
See as
to this,
infra.
Rice v. Goddard, 14 Pickering,

(Mass.) 293. In this case as in Knapp
v. Lee, supra, the argument for the
plaintiff was chiefly based upon the
l
assumption that the covenants themselves 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, (Me.) 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
Vinson, 20 Pickering, (Mass.) 105,

(which, however, was a case of an
v.
executor} contract), it was said that

the cases of Dickinson v. Hall and
Rice v. Goddard held that where the
consideration of a note was the conveyance of property, real or personal,
and the
title failed so that

nothing
passed by the conveyance, the note
was nudum pactum. " Those cases

were well considered, and are founded on sound principles and supported by an irresistible current of
authorities.
few
With
obiter dicta in
the exception of a
our own reports,

57
for that purpose,
provided
and the case of Lloyd v. Jewell, in

Maine, scarcely a dictum to the contrary can be found while there is a
;
remarkable coincidence in
all
and English
other American
the
decis-
upon the subject."

2 Tibbets v.
Ayer, Hill
ions
& Denio,
(N. Y.) 174; Blair v. Claxton, 4
New York, 529 Dodds v. Toner, 3
Indiana, 427; Stack v. Me Lagan, 15
;
Hobein v. Drewell, 20
McDaniel v. Graoe,
15 Arkansas, 489, where the text
was cited Fisher v. Salmon, 1 Cali-
Illinois,
242
Missouri, 450
fornia, 413, S. C. 2 Id.
128
Brandt
Foster, 5 Clarke, (Iowa,) 298, citing the text.
v.
3 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 secured) any incumbrances, which
either have been created by the vendor 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, 381.
THE PURCHASER
67*
were such that these circumstances would en-
the covenants
him
title
damages upon them.
to
RIGHT
Thus,
in a late case, the
defendant being sued on a note for the purchase-money of

conveyed with general warranty, proved that the
the land to another,
plaintiff had previously conveyed
land
about to sue upon his claim, when the defendit for a sum
exceeding that of the unpaid
purchase-money, and the Court had no doubt that these
who was
ant purchased
constituted
facts
Pence
Huston's Exrs. 6 Grat-
v.
304. It seemed to be doubt( Va.)

ed in this case whether the plea filed
tan,
within
caine
the
16th
of
statute
April, 1831, authorizing a defendant

to
a special plea in bar, setting
file
forth
tion
defence
substantial
any such failure of consideraas would entitle him to damages
at law, or relief in equity
but the
Humane
297,
it
Society,
was held that
Grattan, (Va.)
not
this act did
authorize a plea of failure of consideration

upon equitable grounds,
which would require a rescission of
the contract out of which the bond
given for the purchase-money originated, 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
recent case of Watkins

13
v.
in the
Hopkins,
Id. 745.
340; Liddell v. Sims, 9 Id. 596;

Feemster v. May, 13 Id. 275; WigMobley
gins v. M'Gimpsey, Id. 532
;
ory
it,
Keys,
Id.
677; Leonard
v.
Bates,
172; Tyler v.
Scammon, (111 ) 445 Greg-
Blackford, (Ind.)
Young,
y.
Seott, 4 Id.
11
392
Condrey
v.
146; Morgan v.
Smith, Id. 194; Davis v. M'Vickers,
West,
Id.
327;
Illinois,
M'Kay
v.
Carrington,
were all cases of executory contracts, and of course governed by different principles from
cases of contracts executed. Burton v.
Schermerhorn, 21 Vermont, 291, was
a case of personal property, and it
was held, affirming the doctrine in
Stone v. Peake, 16 Id. 218, that a
partial failure of consideration was
no defence unless the defendant of-
McLean,
50,
fered to rescind the contract.
save
v.
Tillotson
In
instead of taking issue.
the later case of Shifflett v. Orange
red to
Stone
Chandler
Marsh, 3 Vermont, 162 Long v.
Allen, 2 Florida, 404
Peques v.
Mosby, 7 Smedes & Marsh. (Miss.)
v.
v.
if
action.
Thus
it.
Fowle, 22 Pickering, 166

v. Grapes, 4 N. Hamp. 448
the plaintiff sought

to take advantage of the insufficiency
of the plea, he should have demur-
Court held, that
with
nection
the
to
Law-
many
Stonington Bank, 6 Connect. 526, merely decides that be-
cases are cited in the reports and

occasional notes in text-books as
tween the original parties to a IHÔtiable note, its consideration may be
bearing upon the subject of this

chapter, which, in fact, have no con-
inquired into, while Hesom v. Smyth*

16 Maine, 177, holds the-
student
some
waste of time to observe that
It
may
the
rence
v.
So
in
by
tbe
a recent
pleaded
case
in
indorsee
of
that
consideration
its
an action
in
Indiana,
was
brought
defendant
the
note,
promissory
675
of
balance
the
the
the payee to
purchase-money of certain land conveyed by
" covenants of clear title and of warthe defendant with
that part of the land was incumbered by
and
mortgages, which the defendant, in order
judgments
to prevent a sale, had been obliged to pay off, wherefore
ranty," and
consideration
the
of
had
the note
familiar proposition, that if the note

in the hands of a bond fide
is
indorsee before maturity, and taken

in the usual course of business, its
on
it
failed.
The
plaintiff
being for the only unpaid
but
portion of the consideration
for the payment of which incum-
be in-
brances, he would have lost the possession and title to the property
quired into.
The student must be careful to
purchased, or a part thereof. In just

the amount, then, that the vendors
by themselves the cases in

Pennsylvania, and the earlier author-
have suffered the purchaser
cannot
original consideration
class
in
ities
South Carolina, which
be presently referred
l
Doremus
(Ind.) 368.
Perkins,
J.,
v.
will
to.
by compulsion,
of their covenants of
session,
Bond, 8 Blackford,
"
The plea states," said

who delivered the opin-
" that the defendant

purchased
of the assignors of the note sued on,
to
pay
to secure the benefit

title
and pos-
have those covenants failed
as a consideration,
and
that failure
being perfected before the payment

of all the purchase-money, it may be
real estate for the consideration of
recouped out of the original consideration.

The defendant is not bound
to plead the matter by way of set-off,
$30,000, which purchase was evidenced by a fee-simple deed, con-
springing, as it does, out of the

default of the vendors in relation to
and
the original contract, and not from

any new or subsequent dealing on
ion,
taining covenants of clear
title
undisturbed possession. Such a title,

then, at least, as should secure to the
purchaser and his assigns perpetual

quiet enjoyment, was the consideration for 4he purchase-money stipulated to be paid.
give,
in
this
Did the vendors

and continue,
case,
to the import of their

covenants, to maintain to the purchaser such a title? According to
according
the allegation in the plea, they did

not, but the purchaser was compelled
to
and did pay incumbrances
greater
to
amount than the note sued
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 purchase the land from one who had
bought it at sheriff's sale under a
paramount incumbrance
Morgan
v.
Smith, 11
see,
Illinois,
also,
201.
676
replied that these
payments had been made by the defend-
But this
the, assignment of the note.
was obviously held bad on demurrer, and judgment given
1
for the defendant.
Other cases have recognized and ap2
plied the same principle.
ant after notice of
We now approach the examination of the cases in

which a purchaser has sought the jurisdiction of equity
either to enjoin the collection of
to rescind the contract.
the purchase-money, or
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
It
likely
arise
to
in
this
connection,
that
yet
unless
the
purchaser has a present right to damages upon his covenants, no grounds exist, as a general rule, on which to
Where such a right exists,

found an equitable jurisdiction.
Where it does
the jurisdiction rests on familiar principles.
not,
although exceptional cases
may
occur,
where
the
all
Court, and their respective

parties
3
of
equitable adjustment, yet, as a
rights, therefore, capable
general rule, the quia timet jurisdiction seems to be one but
to the title are before the
rarely exercised.
The cases of
Bumpus
v.
Platner, and
Abbot
v.
Allen,
are generally referred to as leading authorities on the subof the purchaseject of equitable relief from payment
It is presumed that the plaintiff
was not a holder for value, before
maturity, and without notice.
3 Brandt v.
Fgster, 5 Clarke,
(Iowa,) 298 McDaniel v. Grace, 15
Arkansas, 487, where it was conceived to be settled that " where a
purchaser has taken a deed with
general covenants of warranty, and
there is a total failure of title, or an
eviction, or its legal equivalent, and
i
the vendor sues for the purchasemoney, the purchaser may avail himself of the
sideration,
plea of failure of conwill not be forced to
and
pay the money and then
resort to
a cross action upon the covenants of

Kawle
his deed to recover it back
;
on Covenants
3
infra.
gee
for Title,
these
cases
604 to
732.'*
referred
to

absence of
the
in
money,
cases, decided in
bill
the
of these
first
1
year 1814*, where the

restrain proceedings on a
in the
injunction to
given for the purchase-money,
mortgage
all
York,
an
prayed
that the
New
In
fraud.
677
on the ground
had been
previously conveyed to another,

of whose estate had become forfeited to the Commontitle
Chancellor, admitting that it was difficult to

what was the rule of equity on this
wealth, the
extract from the books
point of failure of consideration,

might be safely said that there
apprehended that
still
was no case
for
it
relief
where possession had passed, and continued without any

He considered an
interruption under a paramount title.
eviction at
to
law an indispensable part of the
The defendant conveyed
relief.
to
plaintiff's
claim
the plaintiffs with
covenants of warranty, and he was bound to defend their

If the
title, and non constat that he was not able to do it.
title failed,
the
plaintiffs
could resort to the covenants in
Hence it was said to be

deed for their indemnity.
without precedent, and dangerous in principle, to arrest the
their
purchase-money on the mere allegation of

of title, without more.
collection of the
a failure
In Abbot
v.
Allen,
which was substantially similar in

doubt having been cast
its features to the case just cited, a
the
in
argument over the correctness of these

was
the Chancellor reviewed his decision, and
principles,
satisfied of
" It
" lead to the
would," said he,
greatest
inconvenience, and perhaps abuse, if a purchaser in the
its
soundness.
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
2 2
Johns. Ch. R. 213.
Johns. Ch. R. 519
in 1817.
57 *
decided
THE .PURCHASER'S RIGHT
678
Can
this
Court proceed
ing claim
the
in
to try the
the outstandvalidity of
of the party in
it is
whom
absence
supposed to reside, or must he be brought into court

against his will, to assert or renounce a title which he
never asserted, and perhaps never thought of]
The only
plausible argument for the injunction is, that as the plaintiff

has covenants to secure his 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 purchasemoney, when, by a suit on his covenants, he might, almost
This
concurrently, be enabled to recover it back again.
argument would apply to every case of mutual and independent covenants, and would prove too much ; but the
proper answer here is, that to sustain the injunction would
be assuming the fact of a failure of title before eviction, or
at law,
trial
and which
this Court, as not

possessing
direct jurisdiction over legal titles,
is
any
not bound or author-
This Court may, perhaps,

try title to land
arises incidentally; but it is understood not to be
ized to assume.
when
it
when
the
case depends on a
simple
and
is brought up directly by the bill.
The
title,
legal
to
be
exercised
in
is
difficult
and
only
within
its
province,
power
complicated
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.
cases, affording peculiar
It
would be hazardous,
it
was
said, to define the limits of
1
in supposable cases of the like kind.
equitable relief
l It
may, however, be observed,
when
a question of title is presented, the determination of which is

incidental and necessary to the relief
that
prayed, equity will not deny that

relief merely because the question of
title
is
involved.
Such questions
must be necessarily determined
in
nearly every case of specific performance, and come clearly within

the concurrent jurisdiction of equity,
It
is,
moreover, impossible, in prara Court to refuse to i-xamino
tice, for
the adverse
title in
cases
where the
purchaser has a present

actual
damages, and the
right
relief
to
is
679
Within a few weeks, however, of this decision, the case

l
of Johnson v. Gere was presented before the same Court,
for an injunction to restrain
upon an ex parte application
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

The bill prayed for an injunction
recover the possession.
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-
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
tion thereon.
and
'
will be his
duty to defend the ejectment

that
suit
and
until
is
suit,
disposed of, he ought not to
recover the remaining moneys due on the bond."
entitled,
it
This decision, however, is not now generally regarded as

a precedent.
Although in occasional cases in New York,
have
been
intimations that equity will not relieve,
there
" or a suit
unless there has been an
eviction,
commenced
to recover the
land;"
3
cases did that circumstance occur,
based solely upon the ground of preventing circuity of action. For in

such cases it must determine that the
right to
damages
exists,
and
it
by no
means universally happens that it is

relieved as to this by a previous
judgment of a common-law court.
1
2 Johns.
Ch. 546.
Lepgett v. M'Carty, 3 Edwards'

126; Edwards v. Bodine, 26
Wendell, 114.
Ch.
3 It is also
worthy of remark, that

who had himself
Chancellor Kent,
granted the injunction in Johnson
v.
actually
yet in none of these
and the general course
Gere, takes no notice of the case in

Commentaries (2 Com. 4 7 2), while
his
he quotes with approbation the case

of Abbot v. Allen, and those which
have followed it. The authority of
Johnson
v.
Gere was denied
recent case of Platt
v.
in the
Gilchrist,
Sandf. S. C. R. 118, and in Miller v.

Avery, 2 Barb. Ch. 594, where
Chancellor
Wai worth
lowing language
held the fol" I think it evident
that the reporter was under a mistake in the statement of the case, or
that the Chancellor overlooked the
680
of decision
in
not only repudiated the

but
has restrained the appliGere,
State
that
doctrine of Johnson
v.
it was not
alleged in the
that the complainants ever believed their title to the land was
has
Johnson
Gere, which was
fact that
ity of
bill
cited with approbation, nor the ex-
For it cannot be possible

that he intended to decide that a
defective.
mere claim of a paramount title by a

third person, and the bringing of a
"
pression,
allegation
v.
Where
there
a mere
is
upon an outstanding
title
or incumbrance, the Court will not

interfere, but leave the party to his
remedy on the covenant, but where

is an eviction, or even an eject-
that claim against the purchaser, was sufficient to authorize the
there
Court to stay the vendor, who had

warranted the title, from proceeding
at law or in equity to collect the un-
Van Riper
Williams, 1 Green's
Ch. (N. J.) 407, to a bill for a foreclosure of a mortgage, the defend-
paid purchase-money.
If the law was

any vendee who was not ready to
pay his purchase-money when it be-
ant answered that
so,
the purchase-money of land conveyed with covenants for seizin and
suit
upon
came due, might make
secret
arrangement with some third person

to claim the premises and
bring an
ment brought,
it
will interpose."
In
v.
it
was given
for
excepting a
but that the
specified
mortgage,
premises were subject

"
to
another
ejectment suit therefor, and thus tie

up the vendor from collecting his
mortgage,
debt indefinitely. For, if the vendor

should be allowed by the Court at law
being submitted on the pleadings

and proofs, the Chancellor held that
to interfere with the
the mortgage must be first removed

before a decree for foreclosure and
defence of the
ejectment suit so as to get it out of

court in a reasonable time, the plaintiff*
might submit
to
then bring a
new
new
either
action,
plaintiff'
or
entitle the
a nonsuit and
action.
And
by the
such
original
by a new claimant, would

vendee to a new decree,
staying the collection of the purchase money until the final termination of that suit."
The
authority of Johnson v. Gere,

however, been supported by a
few cases. In the case in New Jerhas,
sey of
Shannon
v.
Marselis, Saxton,
413, all the parties to the title were
fied
and
outstanding, unsatisThe case

uncancelled."
still
sale in equity could
much
of the
be made, or so
proceeds of sale as
might be necessary for that purpose

must, by the decree, be directed to
be applied to payment of the incumbrance, and the amount thus applied

deducted from the mortgage debt
In
Van Waggoner
v.
M'Ewen,
Id.
412, a defence to a bill for foreclosure of a mortgage was denied,
because tho 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 Court, and there could

therefore be with propriety an equitable settlement of mutual claims,
the defendant had been dispossessed,

there would be propriety in resisting
and
This distinction
Ijcfunj
the rane
<lid
not need the author-
the
foreclosure
of
is
the
mortgage.
recognized
in the
681

of
cation
the
case of Johnson
non
v.
v.
v.
Gere, and Shanin the recent
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 assignee of a bond given for purchase-
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
money
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,
to enforce the
of
timet jurisdiction
And
Marselis."
case of Jaques
quid
who
seeks
payment of a bond
administrators,
equity,
for
the
in
this
purchase-
by them with
covenant of general warranty, and
of which the purchasers were in
possession, on the ground that the
money
of lots sold
requisitions of the law, as to giving

the proper notice, &c., had not been
complied with by the administrators,
and the Court, while freely admitting
when
the vendor is
under a deed with
full covenants, and there has been
no eviction nor any fraud, he cannot
resist the payment of the purchasemoney on the ground of a defect in
title, but must be driven to his cove-
the doctrine that
let into possession
nants, yet held that in the present

case, the sale
was virtually made by
and mortgage given for the purchasemoney, until a suit actually brought
to recover the premises by a person
claiming the paramount title shall
have been determined. He is not
the
obliged to look merely to the covenants in the deed he is not to be
maintained against them personally

(but see supra, p. 571), nor could
driven to such circuity of action, nor
the vendee be supposed to place any

reliance upon such assurance.
In
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
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 whatever to make to its payment, and
the Court held that he had %hus
waived an equity to which he would
otherwise have been entitled. See,
as to this point, Morrison v. Beckwith, 4 Monroe, (Ken.) 73. In Puckdissolved
ett v.
M'Donald,
Howard,
269, the purchasers
enjoin
judgment
filed
(Miss.)
bill
obtained
to
by
Court, and the administrators

acted only as commissioners to exe-
cute the order of sale, and that their

covenants could not furnish a foundation upon which an action could be
Woods
(Tenn.)
v.
North,
309,
the
Humphreys,
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 misThe student will be
representation.
careful not to rely too strongly upon
either of these cases in practice.
In Virginia, a practice was introduced at an early period for the purpose of enabling a mortgagee to obmoney lent without the de-
tain the
lay
and expense attending a
bill
of
682
THE PURCHASER
RIGHT
connection, within such narrow limits as almost to
amount
The lauds were conveyed by way of mortgage to a third

person, agreed on by the mortgagor
and mortgagee, in trust, upon non-
an injunction in the case of a deed
payment of the money
under a doubtful title, though it may

be but just that the vendor should be
foreclosure.
time, to
pointed
the apmortgage, or
sell,
lease the premises.
(See
at
Lomax's
Under such deeds of

324).
trust, courts of equity in that State
Dig.
were very liberal as to enjoining

sales where the defect of title, covered by the defendant's covenants,
exist.
In Gay v.
could be shown to
1
Hancock,
Randolph, 72, where the

proved an outstanding
purchaser
claim embraced within
and a
der
his covenants,
then actually pending unthe Court of Appeals held,
suit
it,
that the sale should be enjoined until

the cloud resting on the title, in consequence of the claim, should be re-
This decision was approved
moved.
and followed
Ralston
v.
in
subsequent cases
Miller, 3 Id. 49
Argyle, 5 Leigh, 467

Id.
and
606
it
Miller
v.
Kane,
569
was admitted that the Court
Long
Roger
v. Israel,
v.
9 Id.
of trust, and in the case of a judgment at law, " for it never can be
equitable to permit a sacrifice by sale
suffered to enforce a
is
the
title
eventually turn out to
may
(Va.) 675, the Court after referring

New York of Abbott
to the cases in
v.Allen, &c., (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 eviction, or
where a
threatened,
or
outstanding
still
it
is
title
money
the
purchaseafter 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
Ralston
v.
In Miller v. Argyle,
Miller, supra.
it was said that a distinction had al-
ways been strongly drawn between
true, in enjoining proceedings
upon peculiar
payment of
or incumbrance.
greater liberality has prevailed,
beyond anything which had been

sanctioned by the courts of chancery
England, or elsewhere, in enjoin-
suit is depending or
where the vendee,
placing himself in the attitude of the

superior claimant, can show a clear
under deeds of
ing the
for
be frivolous and groundless." In the

case of Beale v. Seiveley, 8 Leigh,
had, in favor of purchasers, gone far
in
judgment
purchase-money, when the vendee

in possession, since the doubt about
his
tinction,
trust,
but
this
rests
This
principles.".
dis-
however, seems not to have
been always clearly observed, and

the practice sanctioned with respect
to deeds of trust, seems to have insinuated
itself into all securities
for
given
purchase-money see Yancey v.

Lewis, 4 Hen. &Munf. 390 Long v.
Clark v. HardIsrael, 9 Leigh, 569
;
7 Grattan, 399.
Grantland v.
Wight, 5 Munford, 295, was a case of
an executory contract. In tin- recent
grove,
v.
Ayres, 1 Grattan, 5 75,
there were no covenants lor title as to
case of Price
one purchaser, and no assertion of

the paramount title as to the other,
683

to
virtual denial.
its
2
cases,
on a
chase
money
bill
one of the most recent
in
Thus,
to foreclose a
for the
purwith warranty, the answer
mortgage given
of land conveyed
had been brought by persons claiming

the premises by paramount title, and prayed that the foreclosure and sale might be deferred until this should have
alleged that a suit
been determined
tion, relief
would
but
was held
that although after evicbe extended in order to prevent circuity

it
of action, yet until that event the Court had no authority to

" The
interfere.
purchaser in this case promised to pay
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
The possibility that the

the purchase-money with interest.
title
might fail, and the purchaser be evicted, was in the
minds of the
in case of
They might also have provided that

a claim being made by title paramount before
parties.
payment of the consideration-money, the right of the
actual
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-
vendor to
and suspend the
tract,
than
call for its
it
can
suspend
enanted to be paid,
where
ings,
against
and
it."
the
collection of the
parties
have
relief was, therefore,
Bates
denied to
Delavan, 5 Paige, 299

Hoag v. Rathbun, 1 Clark's Ch. 12;
Griffith v. Kempshall, Id. 571
Denv.
ston
v.
Morris, 2 Edwards' Ch. 37;

v.
McCarty, 3 Id. 124
Leggett
Withers
wards
v.
EdMorrell, Id. 560

Bodine, 26 Wendell, 109;
v.
themselves
not
provided
both of them.
i
purchase-money,
the collection of rent

expressly covupon the destruction of the build-
344
594
Ch. 291
S.
Avery, 2 Barb. Ch.
v.
Tone
v.
Brace,
C. Id. 509
597; 11 Id. 569.
Clarke's
8 Paige,
See, also, passim,
Chesterman v. Gardiner, 5 Johns,

Ch. 29; Gouverneur v. Elmendorf,
Id. 79.
a Platt v.
Gilchrist, 3 Sandf. S. C.
Woodruff v. Bunce, 9 Paige, 443

Banks v. Walker, 2 Sandford's Ch.
Miller
see
118.
3
R.
Pl a tt v Gilchrist, 3 Sandf.
.
118.
"The
S.
C.
Court, moreover,"
THE PURCHASER
684.
RIGHT
The
general principle recognized by this class of cases

has been approved and enforced in most of the other States ;
and
seems to be well settled that where the only covenants

deed are those for quiet enjoyment or of warranty, and
so long as there has been no eviction, actual or constructive,
it
in the
equity will, as a general rule, refuse to entertain a bill for

1
relief, either to enjoin the purchase-money, or, a fortiori,
2
to rescind the contract
continued Mason,
the opinion, "
J.,
who
delivered
interfere
if it
and although
at
all,
must do so upon the simple fact of

the claim having been made by suit,
without reference at all to the character of
the claim.
Court cannot try the
title.
This
Nor can
has been at times
it
ardson's Eq. (S. Car.) 408

Beale v.
Seiveley, 8 Leigh, (Ya.) 658, (and
;
see the Virginia cases, supra, p. 682)
Burges, 2 Dev. Eq. 15;

Merritt v. Hunt, 4 Iredell's Eq. (N.
Car.) 406 Wilkins v. Hogue, 2 Jones'
Eq. (N. Car.) 479; Miller v. Long,
Clanton
v.
speculate upon the probabilities of

the result of a suit, and grant or re-
3 Marshall, (Ken.) 334

Timberlake, 6 Id. 233
fuse relief according to a crude notion it might entertain as to the valid-
J. J. Marshall, (Ken.) 670

Simpson v. Hawkins, 1 Dana, (Ken.)
305 Elliott v. Thompson, 4 HumMiller r. Owen,
phreys, (Tenn.) 99
Walker, (Miss.) 244; Anderson v.
it
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 collusion in order to stay foreclosures,
and how greatly it would affect the

value of mortgage securities of this
This decision
character.
.
may operate severely on the defendant in this case, and especially if the
Rawlins
v.
Percival
v.
Kurd, 5
Howard, (Miss.) 279

Rowe, Id. 460 Vick v.
Percy, 7 Smedes & Marsh. (Miss.)
256; Walker r. Gilbert, Id. 456;
Lincoln,
Coleman
v.
McDonald
Green
Johnson
v.
Id.
McDonald, 13
Id.
v.
v.
v.
Morgan,
Green,
Jones, Id. 580

Smedes & Marsh. Chanc.
;
138
445;
Latham
adverse claim shall turn out to be
(Miss.) 618
well founded
but the contrary decision would operate with severity on
Wailes v. Cooper,
Mississippi, 234
Id. 208 ; Harris v. Ransom, Id. 504 ;
the plaintiff,
Edwards
He
if
the
title
shall
prove
Gartman
v.
v.
Morris,
Ohio, 532;
moreover,. only pursuing his legal remedy for a debt admitted to be due, while the defendant
Stone
has
Halstead, Ch. (N. J.) 299
good.
is,
v.
Provost
leaf vf
proving defective."
Patterson
Barkhamsted v. Case, 5 Connect.

528 Whitworth v. Stuckey, 1 Rich-
S.) 132
Buckner, 12
v.
C. C. R. 439
the protection for which she

stipulated in the event of the title
all
Jones, 24
Queen,
Id. 73.
Gratz, 3 Washington's
Beach
1
v.
Waddell, 4
Green;
Peters, (U. S.) 138;
v. Taylor, 7 Howard, (U.

Leggett v. M'Carty, 3 Edwards' Ch. (N. Y.) 324 Woodruff
;
685
intimated that the presence of a covenant for seizin may in

1
some cases fortify the position of the purchaser, yet it does
not appear that the cases generally draw much distinction

2
It
between the different covenants for title.
frequently
with
full knowlhis
deed
that
a
purchaser accepts
happens
edge of the defect or incumbrance, and with the intention of

3
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 refused wherever the purchaser's knowledge and the state of
facts continue to be the same as they were at the time of
the conveyance.
9
Bunce,
Whitworth
v.
In
of the cases upon this subject,
(N. Y.) 443

1 Rich.
Eq.
Paige,
r.
many
Stuckey,
more space than can be

them here, and I have,
allotted to
therefore,
(S. Car.) 4C9, (see the able remarks

of Harper, Ch., in that case) ; Van
only attempted to refer the student

to the principles by which these cases
Lew
are governed.
v.
Parr, 2 Id. 321
Washington,
Car.) 171
Maner
Strobhart,
Long v.
Young
(Va.) 556
;
v.
Israel, 9 Leigh,
v.
Eq. (S.
M'Clung,
569
Long
v.
Israel, 9 Leigh,
Grattan, (Va.) 336; Lewis v. MorPercival

ton, 5 B. Monroe, (Ken.) 1
267.
Kurd, 5 J. J. Marshall, 670; Vance

v. House, 5 B. Monroe,
(Ken.) 537;
Buchanan v. Alwell, 8 Humphreys,
Roberts v. Wool(Tenn.) 518
Ch. (N. J.) 308.
v.
bright,
v.
Geo. Decis. 98
Simmons,
Alabama, 76
Hightower,
(Miss.) 345
Smedes
McDonald
&
6
;
M'Gehee
Beck v.
Jones, 10 Georgia, 135
v.
Witty v.
Marsh.
Green, 9
S. C. 13 Id. 445
138
Cooley r.
Rankin, 11 Missouri, 647; Beebe v.
Swartwout, 3 Gilman, (111.) 162. The
full and separate examination of the
Id.
cases thus referred
to,
would demand
58
(Va.)
Simpson v. Hawkins, 1 Dana,

(Ken.) 305 Ward v. Grayson, 9 Id.
;
Beach
v.
Waddell, 4 Halstead's
In
Woods
v.
North,
Humphreys, (Tenn,) 309, a cover

nant for seizin given by an executor
who had no power of sale was put
upon the ground of a representation
him, and the contract was
made by
therefore rescinded on the ground of
See Ingram v.
Morgan, 4 Id. 66, cited infra, p. 692.
3 See
supra, p. 131 et seg.
4 The able
opinion of Mr. Chief
misrepresentation.
Justice Gibson in Lighty
Penn. R. 447,
may
v. Shorb, 3
be read with
great profit in this connection, though.
686
the fact of this knowledge on the part of the purchaser was

strongly relied on by the Court as a ground for refusing
relief
is
and although
no har to
it is
his recovery
well settled that such
knowledge
upon the covenants themselves in

is obvious that it should
operate
a court of law, 1 yet it

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,

defend himself from payment of the purchase-money,
either wholly or partially, and has had no
opportunity of
to
a court of equity will not hesitate to grant relief

This
according to the peculiar circumstances of the case.
may be done in various ways ; by enjoining the collection of
so,
doing
the purchase-money, either temporarily or permanently

3
or even, in
by awarding issues of quantum damnificatus
some
cases
where the
eviction has been total,
by decreeing
a rescission of the contract, and a return of the purchase-
money
already paid.
in a case where judgment was obtained
upon a
bond given for the payment of the residue of purchase-
Thus,
money, the vendor had, before the execution of the deed,

which contained covenants for right to convey and of warand
the student must be careful not to
sarily incident to the relief
consider the Pennsylvania cases gen-
separable from it see 2 Story's Eq.

Jur.
796, where most of the au-
erally
on
this subject as
having more
than a local application.
thorities are collected
Supra, p. 128.
2 See the remark in
Wailes
;
v.
Supra,
p. 666.
The
<-<|iiity
Thornton
v.
Cottenham Hatch v. Cobb, 4 John560 Kempshall v. Stone.

;
son's Ch.
right to assess
through the machinery of
Court, supra, p. 365

Sainsbury v.
Jones, 5 Mylne & Craig, 1, per Lord
;
Cooper, 24 Mississippi, 232

3
in-
damages
a court of
cannot be doubted in cases in
which the claim for damages
is
neces-
5 Id. 194;
Coster
v.
The Monroe
Green's Ch.
Manufacturing
(N. J.) 476, and Hopper r. Linking
Co.
3 Id. 149, cited infra, p. 688,
m>t.-.
687
under
which,
judgment,
ranty, become surety upon
the
the
use
of
the execution of the deed,
property for seven
after
and possession recovered by

years was levied on and sold,
" the
the sheriffs vendee,
Court, upon bill, answer and exhaving ascertained, by a writ of inquiry, the damages
which the complainant had sustained on account of the in-
hibits,
cumbrance, decreed a perpetual injunction against the judgment to the amount of the assessment and costs."
So, where after a
bill
had been dismissed
in
which the
a judgment obtained for

of
an anticipated eviction,
on
the
ground
purchase-money,
another bill was filed setting forth that since the former
purchaser had sought
to enjoin
decree the purchaser had been actually evicted under an

action of ejectment, in which his vendor and himself had
been co-defendants,
was held
it
judgment should be
that the
perpetually enjoined.
t
Shelby
v.
Marshall,
Blackford,
(Ind.) 385.
2
Luckett
(Ken.) 39.
in
v. Triplett,
2 B.
Monroe,
In the very recent case
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 containing covenants for seizin and

against
incumbrances.
The deed,
tween the parties, the vendor would

have been obliged to pay the mortgage. As it was, the legal effect of
the deed was to throw the burden of
this
debt upon the purchaser (see

v. Catlin, 22 Vermont, 104, and
;
Mills
supra, p. 525, for cases where a covenant of general warranty is held to
be restrained by a limited estate conveyed.) At law, therefore, the latter

was without adequate remedy, as the
deed must there be enforced
as
it
was
however, was only of the grantor's

right, title and interest, with a covenant of general warranty, and the
drawn, and as it contained no covenant against incumbrances, the purchaser had no defence at law to the
premises were incumbered with a
note.
mortgage previously given by the

grantor, which it was proved the latter assumed to pay, but under which
ever, protect the rights of the parties

under the contract, and enforce it in
the mortgagee afterwards took possession of the premises.

The Court
intent as
considered that
if
drawn according
the deed had been

to the contract be-
the same
court of equity would, how-
manner and
if
to the
the deed had been
same
drawn
it should have been, and whatever

might be the rule at law, a court of
equity would not permit a grantor to
as
688
So, where on a
bill to
foreclose a
mortgage given
for the
purchase-money of land sold with covenants for quiet enjoyment, for further assurance and of warranty, the defendants
that an ejectment had
proved that the title was defective
been brought, of which the complainants were notified and
that judgment had been entered in
required to defend
and
favor of the paramount title, and execution issued
that the defendants, to avoid a dispossession, purchased this
the Court held that the amount thus paid should be
deducted from the mortgage debt, and referred the case to
a master to ascertain the damages thus due for a breach of
title,
the covenants.
no sound objection
recover the entire purchase-money,
constitute
and leave unpaid incumbrances upon

the land which he was under obliga-
Court staying the complainant's recovery on his mortgage until a reasonable opportunity be afforded the
tions to discharge.
The purchaser
had a right to retain so much of the
defendant to ascertain
purchase-money as was
at law,
sufficient to
his
and then allow
that
to the
damages
amount
secure him against the incumbrances,

particularly where the grantor was
to be offset.
insolvent, and no adequate remedy

could be had on his covenants. The
covenant, should be pursued, might

depend on the peculiar circumstances
suit
at
law was therefore enjoined

incumbrances should be re-
until the
moved.
1
Coster
v.
The Monroe ManufacGreen's Ch.
(N J.) 476.
" I
confess," said the Chancellor,
turing Co.
" I
have not been able
to find this sub-
Which
to ascertain the
the case
attending
of these courses
damages under the
but
it
would
should, as a general
rule, be referred to a master, unless
the complainant requires a trial at
seem
to
me,
If the
law.
it
defendant claims the
allowance here, he should be content

with the forms of proceeding in this
ject considered in the cases as I had

expected, and yet it appears to me so
court,
obviously correct in principle, that I
thus close the whole controversy in

one action, accords well with the fa-
cannot
doubt
its
The
propriety.
the difficulty in
great objection is
this court undertaking to settle unli<|iiilated
damages.
know
this is
a difficulty, and yet in some cases a

court of equity will, to effectuate
dnmagos which are unliquidated. But if this obstacle should

be deemed insuperable, still it would
justice, settle
which
master.
To
is
by reference
settle the
to
damages, and
miliar principles of a court of equity,

of preventing a multiplicity of suits."
But
per
in the
v.
subsequent case of Hop-
Lutkins, 3 Id. 149, a purcliasrr
a bill for an injunction, setting

forth that the defendant had M>ld to
filed
him certain
mills
and wutrr
rights
with covenants for sci/in, for right to

So, in a late case in
New
York, where on a similar
the defendant proved that under

convey, against incumbrances, and
that soon after, the
of warranty
689
in
proceedings
bill,
partition
factory manner, the damages sustained by the flow of this water?
to
Even
iink'innify the
come
adverse suit
complainant against an
brought by an adjoining
nished with no case that goes the

length here desired. The complain-
defendant executed
owner
to
him a bond
recover damages for an

dam by reason of its
to
at law,
to
it is
result.
often difficult to
I
have been fur-
overflow of the
ant's counsel has referred
being at a greater height than the

defendant had had a right to keep it
that the defendant was suing for
case of Johnson
the
and was
consideration-money,
It
speedily becoming impoverished.
was a part of the complainant's case,
that the covenants
were
to
have been
drawn
as expressly to include the

right to keep the dam at this height,
so
but
this
was denied by the answer.
The Court
in the bill
held that the only equity

was the charge of mistake,
which was wholly denied
but that
giving the complainant the full benefit of the covenants, the

case was
clearly distinguishable from those in
which a mortgagee was seeking the

aid of that court to foreclose.
"
To
v.
me
to the
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 defective, and an ejectment was commenced for recovery of the possession.
The Chancellor enjoined the
suit at law on the bond for the purchase money, and also proceedings
on the mortgage, until the ejectment

should be determined. This is widely
different from settling damages arising 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 computation may be made by a master of the

value of that share, and
it
can be
carry out the relief sought, the injunction must continue until all the
deducted from the amount of the

mortgage but how he would ascer-
damages which the complainant can

be put to (and which the covenants
are designed to protect him against),
This
are ascertained and settled.
would be a very uncertain period,
and proves to my mind, that a rule
of this kind would be productive of
tain
Whether these suits

great injustice.
will ever be brought, or, if brought,
will be repeated, is all beyond the
power of
this court to
action of the parties
power
court,
to
control.
know, as the
is
beyond
How
can
from the very course of
proceedings, ascertain, in any
58*
its
this
its
satis-
this
and adjust
all
maintaining the
the damages which
may
dam in
complainant
sustain,
by
question at
present height, is more than I am

able to discover. It would be imits
practicable, in
to do so with
my
view of the case,
any certainty. It is
true that the same principle pervades
both cases, that of preventing circuity of actions, and allowing a set-off

of damages under covenants against
the purchase-money. The difference
that in the one case it is practicable to do so, and in the other it is
is
not.
In the recent case in
this court
THE PURCHASER
690
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.
is made
by
which the jurisdiction of equity may
In the State of Missouri, moreover, provision

statute, for the cases in
be exerted in this behalf.

of Coster
v.
Monroe Manufacturing
Green's Ch. R. 467, I went

force of authority so far,
the
upon
after a judgment had been obtained
Co.
in ejectment against the mortgagor

for a part of the premises, for which
he gave the mortgage, and after a

repurchase made by him 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.

think that view of the case
il still
correct and attainable, but I do not
how
injunction against all persons interested therein, in any of the following

cases
where the grantor has
First,
covenanted a
title
to the lands or
real estate sold in fee-simple,
and the
or was wholly defective at the time of such sale second,
same has
failed,
where the grantor has a
title
as cov-
enanted to a part only of the lands

or real estate sold
third,
where there
a failure of title to the whole or any

part of the lands or real estate sold
is
by such grantor, and continues to be

defective at the time of making the
application for said injunction.
" Sec. 2.
Any court now author-
it can be pressed further, so

reach every possible case of
damages arising under covenants."
ized by law to grant injunctions, shall
Poling, 6 Barb. S. C.
tion shall be granted in any case, nor

shall any relief be extended in any
-eee
as to
Fowler
v.
165, (see supra, p. 277,) overruling

,Fowter v. Poling, 2 Id. 300.
2
The Revised
Statutes, (1845, c.
Sec. 1. "That in all
82), provide,
where there shall be a sale
.cases
transfer of
any lands or real
and
estate,
or a sale or transfer of any interest

ito any lands or real estate, and any
part or the whole of the purchasemoney thereof shall not be paid at

the time of -such transfer
and
sale,
the purchaser of any such lands or

.real ostate,
shall
be entitled to an
have power
under this act
to
grant injunctions
but no such injunc-
case where the purchaser has notice

of the defect of title complained of
by him, before the purchase

41
Sec.
3.
In
all
thereof.
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
ing to
final
such
to exist
in,
decree therein, accordmay be shown
failure, as
the
real estate sold.
title
to said lands or
601
There have heen exceptional cases which seem to determine that although an assertion and prosecution of an
adverse
title
may
not, of itself, be a sufficient
ground
to
entitle a purchaser to equitable relief, yet that such an assertion and prosecution, when coupled with the insolvency or
non-residence of the party bound by the covenants, form,
together, an equity sufficient to bring the case within the

quia timet jurisdiction which, in extraordinary cases, courts
1
of equity have exercised.

2
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
So
that the vendor
was
their intestate,
on the ground that a judgment had been
insolvent.
in a case in
Kentucky,
where a purchaser's personal representatives filed a bill
against the vendor to enjoin the collection by him of a
judgment obtained for a balance of purchase-money due by
" Sec. 4.
The amount
to
be en-
Besides the cases cited infra, the
joined by such court, shall be in proportion to the amount of failure of
student
such
(Ken.) 672; Vance

Monroe, (Ken.) 540
in the grantor, with reasondamages to the purchaser, if
title
able
any
of
shall
" Sec.
to
be sustained by such failure

5.
This act shall not extend
any case where the grantor does
not covenant a
title in
fee-simple to
the lands or real estate sold.
" Sec.
cases
bond
6. This act shall extend to

where the grantor has executed
for title
to the
estate sold, in the
lands or real
same manner
as
v.
Hurd,
v.
House, 6 B.
Jones, 10 Georgia, 135
Svvartwout, 3 Gilman,
Vick
v.
Percy,
(111.)
Beebe v.
177, and
Smedes & Marsh.
(Miss.) 268 see alsoBowen v. Thrall,

2 Williams, (Verm.) 382, supra, p.
687.
;
This quia timet jurisdiction has
al-
ready been, to some extent, considered, in connection with the subject
though such grantor had executed a

deed for the same."
of covenants for
The case of Jones v. Stanton, 11

Missouri, 433, infra, p. 695, was not
154
decided under
O"a.) 68
this statute.
5 J. J. Marshall,
McLemore v.
Alabama, 139 McGehee
Mabson, 20
v.
title.
find dicta to this effect
Avill
in Percival
chapter.
2
et
title, in a preceding
See supra, Chapter IV. p.
seq.
Stockton
v.
Cook, 3 Munford,

recovered against them by a subsequent alienee on the covenants 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. 1 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, 2 and a similar

view has been taken in recent cases in Alabama. 3
So, in a recent case in Georgia,
was held
it
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

1
Jones
v.
Waggoner,
7 J. J.
Mar-
" If the
appel" had a
the
Court,
lees," said
legal
right to the damages for which reshall,
(Ken.) 144.
the State,
the covenant for seizin, the vendor

would have been without relief, as it
" This
was
differs
is
sought by them, the admitted
insolvency of the appellant gave
said,
(covenant)
from a covenant of warranty where
there is no present right of action,
and can never be till eviction, which
jurisdiction to the Chancellor,
may never
lief
who,
when he had
by
it,
possession of the case

injunction, had a right to retain
and give full and final redress by
take place
and where,
therefore, a court of chancery will

grant no relief against the payment
of the
consideration, on
the joint
and the
decreeing a set-off and any other
ground of a defect of
relief that was proper, and who for

that purpose had a right to assess the
damages for a breach of the covenant
insolvency of the vendor."

3 Walton v.
Bonham, 24 Alabama,
513; Wray v. Furniss, 27 Id. 471
without the intervention of a jury,

the criterion being fixed by the con-
gee also the remarks
tract
2
Ingram u.Morgan, 4 Humphreys,
(Tenh.)
seemed
to
The
The Branch Bank, 4
in
Cullum
v.
Id. 21, supra,
p. 668.
and the law."
Court, however,
225.
be of opinion, that but for
roe,
66.
title
Clark
v. Cleghorn, 6 Georgia,
In Vance v. House, 6 B. Mon-
(Ken.) 540,
it
is
said,
"
bill
693
was held that

the complainant's hill could not he sustained, were the defendants within the jurisdiction of the courts of law of that
and
in a recent case in
North Carolina,
it
law could give complete relief

on the warranty contained in the
deed of the defendants, hut as they were non-residents, the
Court would not permit the defendants to recover the purState, for the reason that the
in an action of covenant
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
1
the breach of the covenant of warranty.

But where there is no actual prosecution of the parafor the dissolution of the contract can-
not be sustained, and the payment

of the consideration enjoined, except
in the
case of fraud, insolvency, or
the purchase-money by the complainwho was then ignorant of this

judgment, should be applied by the
ant,
vendor
to its
payment
that the
first
non-residency of the vendor, and a

palpable and threatening danger of
note was so applied, but that the

vendor afterwards became insolvent,
immediate or ultimate
and the judgment
without
loss,
legal remedy, by reason of the defects in the title conveyed, and the
vendee to protect
against eviction under it.
to sustain such a bill after the
inability of the
creditor, in
passed them to third persons, to whom

amount was paid by the com-
himself
their
And
The Court
plainant.
of the opinion that 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

also
the
Bunce,
loss exist."
See
remarks in Woodruff v.
referred to
were clearly
arrangement
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
9 Paige, (N. Y.) 444.
knowl-
edge of this fact, re-delivered the

remaining notes to the vendor, who
its lien,
and
In the recent case of Ingalls v.

Morgan, 12 Barb. S. C. (N. Y.) 578,
that the re-transfer of the notes to
the purchaser filed a bill to restrain

the holder of a paramount
judgment
be utterly unable to respond in damages for a breach of the covenants in
from selling the land under
his deed,
it,
on the
ground that at the time of the purchase it had been agreed between
the vendor and the judgment creditor, that the notes to be given for
the vendor,
when he was known
was an act of bad
to
faith tow-
ards the purchaser, and a perpetual

injunction was therefore decreed.
Green v. Campbell,
(N. Car.) 446.
J
Jones' Eq.
694
mount
title
or incumbrance,
seems that the insolvency
it
or non-residence of the vendor will not,

the
mere existence of such
when coupled with
or incumbrance, give to
title
the purchaser a right to equitable relief.

Thus, in a late
1
case in Mississippi, where there was no eviction, actual or
it
threatened,
that State,
was
held, that under the repeated decisions in

facts, the insolvency of
under such a state of
the vendor could not alter the position of the purchaser. So

a recent case in South Carolina, where the purchaser,
after having been ten years in possession, was advised by
in
his counsel that
children,
and
there
filed
was an outstanding
bill
title
in
minor
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
So
impossible to assimilate the case to a bill quia timel?
4 it was held that if the
in a case in
insolvency of
Kentucky,
the vendor were to be a ground for equity to interfere, still
a chancellor ought not to go farther than to the extent to
which a court of law would do in assessing damages for
If equity could interfere by reason of the
part lost.
of
the
warrantor to arrest the payment of the
insolvency
the
Latham v. Morgan,
Marsh. Ch. 618.
1
The
Smedes
decisions referred
to,
&
how-
There are dieever, are not given.

ta to that effect in Vick v. Percy, 7
Smedes
v.
&
Marsh. 268, and Wailes
Cooper, 24 Miss. 233.

8
Maner
v. Washington, 3 Strob" The

purEq. (S. Car.) 171.
" had
the
said
Chancellor,
chaser,"
hart's
the legal enjoyment of the land, in
which he might never be interrupted; but if that contingency should

occur, he had a plain and adequate
remedy against the vendor for the
covenant, and the posor even probability of his
breach of
sibility
his
being unable to pay the damages at

a future time, could not create such
an equity in favor of the plaintiff as
to bring his case within the principles
of a
bill
quia timet.
Wherever the
purchaser anticipated the insolvency

of his vendor, he might stipulate for
sureties to the warranty, but when
he had taken possession of the land,

paid the purchase-money, accepted a
deed of conveyance, and executed the
contract, he could not call
upon
i-qui-
except upon the ground of fraud,

to rescind it, but must rely upon the
ty,
covenants of
4
Rawlins
his
v.
deed
for redress."
Timberlake,
Monroe, (Ken.) 232.
B.
695

*
of it, it would be only by

purchase-money, or any part
clear evidence of eviction or undoubted defect of title, so
as to
show
the covenant of warranty broken, and by stopof so much of the purchase-money as was
ping payment
So in the
incurred by the breach.
equal to the damages
same State, it was held that the admitted insolvency of the
vendor was no ground for an injunction where one of the
paramount owners,
of
all
whom
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 warof his deed, that a
ranty, and finding after the execution
complete chain of
title
could not be deduced,
for the rescission of the contract, on
defective
title,
and
in
a subsequent
filed
bill
the
bill
ground of the
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
of that court could not be upheld, and that
ficient,
i It
will
be of course remembered
is
only broken by
an eviction, or something equivalent

supra, p. 241
et se.q.
And
in
Kentucky it seems to have been held,

some cases, that a judgment of a
in
court of record in favor of the para-
mount
title,
tute an
was
sufficient to consti-
eviction.
Such a doctrine,
however, does not generally prevail,

See supra, p. 236.
a
Wiley
v.
Fitzpatrick,
Marshall, 583.
See
J.
J.
this case, infra,
suf-
Patton
v. Taylor et al. 7 Howard,

Mr. Justice Nelson, after cit-
ing the cases of
Johns. Ch. 213, Abbott
Id. 219,
Gouverneur
v.
v.
Allen, 2
Elmendorf,
5 Id. 79, Simpson v. Hawkins, 1

Dana, 305, and James y. McKernon,
6 Johns. 543, said that these
showed " that a purchaser
cases
in the un-
disturbed possession of the land will

not be relieved against the payment
of the purchase-money on the mere

ground of defect of title, there being
no fraud or misrepresentation ; and
that in such a case he must seek his
remedy
at
law on the covenants in
his deed."
p. 699.
132.
was not
3
the Court had no doubt.
that this covenant
to it;
it
decree
the
it,
Bumpus
v.
Plainer,
In the late case, however, in Misof Jones v. Stanton, 11 Mis-
souri,
souri, 433, a
purchaser
filed
bill
to
THE PURCHASER
695
RIGHT
In cases, however, where all the parties to the title are

before the Court
the vendor, the purchaser, and the paramount claimant
and an equitable adjustment can therefore be
or
made of
their
mutual rights, the fact of insolvency

to have been admitted to be a
non-residence seems
tucky,
Thus, where in a case
circumstance.
material
upon a
bill
praying
enjoin a judgment recovered by his
vendor for a balance of purchasemoney of certain land sold with statutory covenants for the
title,
alleging
extended to
but one-half of the land, and that he
was insolvent. It appeared by the
proofs, that the defect of title was
undoubted, and that the purchaser
was still in possession, but the proof
as to the vendor's solvency was somewhat contradictory, and the Court
that the vendor's
title
held, that upon the whole, taking

into consideration the admitted defect in the vendor's title,
and the
doubt existing in relation to
just
his abil-
they were warranted in requiring a stay of the collection of the debt, until the vendor
ity to
pay
his debts,
should give a bond with security indemnifying the purchaser against any
loss
he might sustain, in consequence
of the defect of
title.
The
facts in
occurred before the passage

of the Missouri statute, cited supra,
p. 690.
this case
The
strongest modern case upon
the subject of insolvency creating a

distinct equity, seems to be the Tus-
in
Ken-
2
against a judgment for
relief
who commenced suit and obtained

judgment thereon. Pending the suit,
the complainant paid for the company 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 judgment and it was held (reversing,
;
after
re-argument, their former
opinion), that although independently of the insolvency of the company,
the complainant had no right of setoff 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

was created, until the company
either relieved him from or indemnified him against his obligation. See
it
also
Hupp
v.
Hupp,
6 Grattan, (Va.)
310.
1
Morrison
Beck with, 4 B. Mon-
v.
roe, (Ken.) 73.

2
There were, in fact, two judgments, but as to one of them it was

held that the complainant had banvd
his equity,
cumbia Railroad Co. v. Rhodes, 8 Alabama, 20G, where many authorities

arc collected and examined. The
by him
complainant, being indebted to the

company on an open account, the
latter assigned it to a third party,
made
by representations made
at the time of the transfer of
the security on which the judgment

similar decision was
was founded.
in
Jaques
Ch. (N. J.) 461.
v.
Eslcr, 3 Green's
6Q7
the purchase-money of land, sold with a general covenant

of warranty, it appeared that a prior mortgage had heen
given hy a former owner of a large tract, of which this was

that the greater part of the mortgage deht had heen
part
was willing to
paid, and the mortgagor
to receive it
refused
but the mortgagee
and the
had been determined

gagee and mortgagor
who
it
bill
pay the halance,

a certain suit
till
made both
the mort-
parties, together with the vendor,
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
to the removal of the
appropriation of the purchase-money
incumbrance, and that upon this ground alone could the

1
bill be held tenable.
So, in a subsequent case, where a
1 The
following portion of the
opinion of the Court, will show the
manner in which, when all the
parties are before the Court, their
(the holder of the judgment), will be

entitled to a dissolution of the in-
junction; but
if
a part of this
money
mutually
necessary to remove the burden,

then the complainants can be entitled
complainants
have prima facie shown a ground for
coming into a court of equity, the
such part only, not by

being discharged from the payment
of it, but by directing its payment
question remains, what relief is to

be granted ? Is a perpetual injunction the proper redress ?
We con-
for
respective
rights
"
adjusted.
ceive not.
and
can be
the
granted, the
forever keep the
If that
complainants
estate
As
may
is
also this part of the pur-
chase money. The proper redress

must be to awaken the mortgage
from Cosby (the prior mortgagor),
to Sarah Beard (the mortgagee),
and to remove its effects from the
If that can
estate in controversy.
be done, without the application of
the
money
in contest, then Churchill
59
is
to relief as to
their
security.
the mortgage,
estate
it
will
mortgaged
is
By
inspecting,
be seen that the

a large one, and
all but a.
the price considerable, and

small sum is now paid. It
is
a well-
known
principle that a mortgage

binds every part of the land it covers,
and each spot is subject to its operaand when it is made to bear on
tion,
purchasers of different parcels from

the mortgagor, they are bound to
contribute only in proportion to the
value of the share that each holds,
fixing that value at the date of the
THE PURCHASER
698
filed
RIGHT
his bill to enjoin a
judgment given for the

with
of
land
sold
general warranty, on the
purchase-money
purchaser
mortgage Stevens v. Cooper, 2 Johns.

Ch. Hep. 430. It is, also, a correct
doctrine that as between these pur;
chasers and
the mortgagor, if he
proportion of the estate
himself, such portion must first be
subjected entire. If it discharges the
holds
demand, the purchasers are clear if

does not, then they must contribute
;
same proceeding it must be ascertained 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 commissioner it may be ascertained whether
Sarah Beard's representatives still
receive
the
money from
it
refuse
proportionably to make up the residue.

" Now it seems more than
probable, even if Cosby has sold the whole
Cosby, or Cosby declines paying it.

If he receive, and he shall pay or
mortgaged by him, so that the

balance due from him must fall on
estate
every part equally, that the proportion of that balance which will fall
secure
to
it,
injunction.
ants, then
be ascertained
before
clearly perceived
it
can
what redress
is
be
to
be given to the complainants.

" The
proper mode to ascertain
direct an account to be
to
is
this,
taken by a commissioner, of the sums
paid and balance due on the mort-
Cosby and Mrs.

gage, between
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 pail
sold
by Morrison (the vendor),
to the
complainants, so that the proportion

of the mortgage-money chargeable
then-oil may In; clearly seen. By the
not
amply sufficient to discharge

balance due, and he will not
otherwise indemnify the complain-
they have in their hands, now claimed by Churchill. But if Cosby has
not parted with the whole estate, but
portion may be more than equal to
the discharge of the balance due on
the mortgage ; and these facts must
is
estate
the
retains a portion thereof, that
If the obstruction
thus removed, and Cosby shall retain at this time a portion of the
to the share of the complainants, will

not be nearly equal to the sum which
still
then there will be no fur-
ther obstacle to the dissolution of the
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 representatives, arid keeping them indemnified
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

must be decreed to Sarah
contest,
Beard's representatives, and the injunction of the complainants must be

It might
dissolved as to the residue.
be equitable to decree the amount

which the injunction shall be
for
this event, in favor of

against Cosby, as lu> would
be entitled to stand by substitution
perpetuated in
Chili-chill
699
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
ground
and the Court below granted an injunction, the

the Court of Appeals, on the
insolvent,
decree was reversed by
for against
express ground that no decree had been prayed
those heirs, and that all of them had not been served with
1
So, in a later case,
process.
it
was
held, after
much
consid-
where the vendor was alleged to be insolvent,

and there were just grounds for fearing an eviction, the
eration, that
Chancellor might interpose and suspend the payment of the

purchase-money, although the contract had been executed
by a conveyance.
sable,
But
that if there
the Court regarded
had been no
eviction,
it
all
interested should be brought before the Court,
as indispcnthe parties
which could
and for want of this

then settle their respective rights
precaution, the decree of the Court below, enjoining the
2
judgment given for the purchase-money, was reversed.
;
But the contract should,
purchaser from
cannot be granted
suit, as he has not
part, be rescinded, if the vendor had

conveyed no title to it, as it would
interpleaded with Cosby, or shaped

his defence in such a manner as to
be unjust to permit the purchaser to

hold the deed for it, and yet have
the
in
Cosby.
him
to
entitle
place of a
But
in
him
defendants.
this
this
to
decree against his co-
His claim in
this respect
must, therefore, be left to some future mode of redress."

1
to that
as
the injunction for the price of that

part perpetuated, and leave was given to the complainant to amend his
bill
if
he thought proper, so as to
J.
Fitzpatrick,
The Court
Marshall, (Ken.) 582.
held that had
the complainant
the proper parties before

bring
the Court.
brought the proper parties before the

Court, and by a prayer in his bill
The complainants had

leave granted to amend their bill, as
in the case last cited. The following
Wiley
v.
compelled these heirs either
upon and exhibit
J.
to insist
their title to the
all
Simpson
v.
Hawkins,
Dana,
(Ken.) 303.
language was held by Underwood,
J.,
part in question, or yield it to him,

the decree of the Court below would
complainant's equity to
"
rescind the contract.
Regarding
have been correct, unless it should

appear that their title was invalid,
the protection which time had thrown

round the vendors, perceiving no
as
to
the
THE PURCHASER
700
The
RIGHT
principle of these cases is one of general application,
and has been. elsewhere recognized. 1
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 with the
purchasers, and seeing that the contract has been fully executed by a
formal conveyance with warranty of

title against all the
world, which
warranty has not been broken by an

eviction from 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
unless
fraud.
it
any case,
has been tainted by actual
If the warranty of title has

broken, so as to entitle the
been
vendee to damages, or if the vendee
be entitled to damages upon a covenant of seizin, he may apply to the
Chancellor, where the vendee is insolvent,
to
against
the
set
off those
damages
unpaid portion of the
purchase-money. The ground upon

which the Chancellor interferes in
such cases,
is
the prevention of the
irreparable mischief which otherwise
might result from the
He
insolvency.
ought not to act upon the prin-
ciple of rescinding the contract. On

the contrary, he should affirm the
and secure to the party

such damages as he might be entitled
to, for a partial or total violation
contract,
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 recovery, 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 contracts."

1
Davis
v.
(Ken.)- 341;
Logan, 5 B. Monroe,
Denny
Metcalfe, (Ken.)
22G
v.
WickliiVo,
Shannon
v.
AtMarselis, Saxton, (N. ,1.) 413

wood v. Vincent, 17 Connect. 575.
;

enforced
common-law
but in the
elsewhere,
the
courts,
rights of the purchaser were for a long period protected,

upon what was thought to he equitable principles, at the
expense of the
Elmore,
it
Since
vendor.
became
the
case
the settled law of
Furman
of
South Carolina,
v.
that
a covenant of warranty possessed also the properties of a

covenant for seizin, and an eviction was not, therefore,
Hence it was
considered to be necessary to its breach.
held that if a purchaser, when sued for the contract-price,
could establish to the satisfaction of the jury, that he took
nothing by his purchase, and that he would be ousted by
the paramount title, they might find a verdict for the defendant, not on the
ground that the
was a
failure of title
rescission of the contract, but because the
damages on the
the purchase-money and
covenants were exactly equal to

3
and it followed that when a portion of the land
interest
was covered by a paramount title, which might, and in the
;
opinion of the jury would, so far deprive the party of the

damages could be assessed pro
benefit of his purchase, the
tanto ;
there
Gray
and such
was another
v.
is still
class
Handkinson,
in
the law at the present day.

of cases, which,
5
1792, established the doctrine that
where the object of the purchase was defeated,

some incident
either
failure of part of the title, or of
chase, the purchaser could be relieved at law

sion of the contract, although he
sion.
Such a
Whitworth
v.
doctrine, which,
Stuckey,
Rich.
Eq. 407; Van Lew v. Parr, 2 Id.

337 Mauer v. Washington, 3 Strob;
hart's
Eq. 171; Kibler
v.
Richardson's Eq. Cases, 143

v.
v.
But
beginning with
Cureton,
Gillam
;
might be
was
it
held,
by a
to the
pur-
by a
rescis-
in
posses-
was a
sort of
still
3 Farrow v.
Mays, 1 Nott & McCord, 312 Hunter v. Graham, 1 Hill,
370 see Van Lew v. Parr, 2 Rich.
;
Eq. 349, cited infra,

4
Farrow
v.
p. 702.
Mays, Furman
Van Lew
more,
Glenn, 9 Rich. Law, 378, supra.
Reported in a note to Mackey

Collins, 2 Nott & McCord, 189.
59*
5 1
Bay, 278.
v.
El-
v.
Briggs, Id. 432.
Parr, Jeter
v.
THE PURCHASER
702
RIGHT
law as in equity on
equitable defence, cognizable as well at
the ground of fraud, continued to prevail until the year
1 829, when the Courts
began to retrace their steps, and by
a series of decisions
established the position that if the

evicted, the contract would not be
purchaser had not been
rescinded in a court of law, principally on the ground that

such a court has not the power to do full and adequate justice to the parties ; and the result of the cases is said at the
" that in actions
brought for the purpresent day to be,
chase money, the purchaser may make a clear subsisting
outstanding title the ground of abatement for the contract

2
Such
value of such part of the premises as it may cover."
a proposition must, it is apprehended, be understood only
as applying to cases in
3
include the adverse title.
Carter
Bordeaux
brook
v.
v.
v.
Carter, 1 Bailey, 217;
Cave, Id. 250; WestMcMillan, Id. 259 Johnson

v.
Purvis,
Hill, 326,
said that the case of
kinson
known
2
was
where
Gray
an
v.
it
Van Lew
was
Hand-
interpretation
to the common law.
Per Johnson,
case of
which there are covenants which
un-
Ch., in the recent

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
and Rogers y. Horn,
equity, no warranty of the

be exacted.
could
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 statement of the result of the cases to
any which would otherwise have

been attempted. " My present purpose," said the learned Judge, in de" is
livering his opinion in that case,
more
to explain the various cases

decided in the courts of law on the
question
can be
how
set
far
up
an outstanding
title
as a defence at law,
than for anything else. " The defence at law, before eviction, proceeds upon the ground that the covenant of seizin is broken by a want
Spears, 10,.
6 Rich. Eq. 362, such a defence was
refused, because, in case of a sale by
of
an ordinary or a commissioner
Collins, 2
in
title
title in
the seller, and damages for
breach are allowed, as a discount. In the case of Mackey v.

this
Nott
& McCord,
186,
it
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 previously adjudged and well-considered case of Furman v. Elmore, then
execution of his deed, the statute of

began to run from the
limitations
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
which a purchaser
could be relieved, in part or in whole,
from the payment of the purchaseclasses of cases, in
tial
Where
1st.
money.
there was a par-
failure of consideration, as
where
unpublished, and
apparently unknown to the bench or bar, but
part of the land sold and conveyed

was covered by a paramount title,
which was most fortunately brought

and published in a note to
which might, and in the opinion of

the jury would, so far deprive the
& Me Cord,
party of the benefit of his purchase.

This is essentially matter of discount,
to light
Mackey v. Collins,
189.
The same
2 Nott
principle
was
af-
firmed in Biggus v. Bradly, 1 Me Cord,

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
and, as
is
decided in Farrow
v.
Mays,
& McCord,
312, can be given

in evidence only under a notice of
discount filed, and served on the
1
Nott
opposite
party.
In such case the
measure of damages to be allowed

to the party on his covenant of seizin,
deal said about an implied warranty

arising from a full price, in the sale
is
of lands, as well as in the sale of

chattels; but it is manifest such a
doctrine has no foundation in law,
mated by the purchase-money and

interest, and the relative value of
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
Johnson
But
v.
v.
Collins
was reaffirmed in
Veal, 3 McCord, 449.

another very im-
in that case,
portant principle, and safeguard to

the application of the doctrine, was
settled and fixed,
that as the action lay for a breach of the covenant
of seizin, before eviction, by showing
that the grantor had not title at the
rata value of
the pro
covered by the paramount
the
land
title, esti-
the land thus taken off in the purFurchase, to the land remaining.
man
v. Elmore, 2 Nott & McCord,

199 to 204. The 2d class is where
the grantor
when he
at the trial has,
In such case,
acquired no
no
the
title,
sold, had,
title to
or
the land.
vendee, having
has of course no
consideration for his promise, and

if the action be on a
parol
hence
it
may be regarded as a
nuflum pactum, and the vendee thus
relieved at law. In such a case, as
contract,
'is
said in
Farrow
v.
Mays, the de-
THE PURCHASER
704
RIGHT
the purchaser to detain the

purchase-money after the execution of his deed,
reason of an incumbrance or defect of
hy
may be given in evidence

under the general issue. But in an
action on a specialty, as is explained
in Hunter v. Graham, 1 Hill, 370,
fence
before the act of 1831, the failure of

consideration must have been specially pleaded, or
up by way of
merely lets the
defence under a notice
The
discount.
set
act
party into his

instead of a plea.
In a suit on a
specialty, therefore, it would seem
the more prudent course for a defendant
(and the most consistent
with legal rules,) to regard his covenant of seizin as broken to the whole
defences examinable and relievable

in a law court.
The
third class of
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
cases,
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,
from the purchase, the

purchaser formerly was held to be
relievable at law, although he might
be in possession, by a rescission of the
as resulting
contract.
The
case of
Gray
v.
Hand-
extent of his purchase-money and

interest, and to claim damages ac-
kinson, 1 Bay, 278, which seems to

have been the beginning of this doc-
cordingly by way of discount. In

such a case, if the jury should be
trine, held that
satisfied,
that in fact as well as in
law the purchaser took nothing by

his title, and that he will be ousted
a mill-seat was the

inducement
to the purprincipal
chase, and that being taken away
by an older title, entitled the vendee
to
a rescission of the contract.
the paramount title, they may

find a verdict for the defendant, not
that case
on the ground that the
which was allowed now
by
failure of title
a rescission of the contract, but

that the damages, on the covenant of
is
seizin, are exactly
chase
money and
a case there
is
equal to the purIn such
interest.
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
bis
vendee
liable to
is
For
the owner of
profits.
the paramount title for the rent of

the land during the time he may be
in
1
Taylor t?. Fulmorc,

Both of these classes of
possession.
Ilirh. 52.
cases
have always been, and
are, regarded as
constituting
still
legat
In
the Judges speak of the

defence as a kind of equitable one,
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 deis good anywhere.

But there
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
fence
is
case, the rule of the decision
is
ascrib-
ed to the doctrine that a sound price

warrants a sound commodity. It was
followed by the case of
The
State
Gaillard, 2 Bay, 11.

Jn that case,
tin- defence rested
upon the ground,
v.
when the land was sold, a plat

was presented, which represented
fine copious stream of water running
that
;i
705
are believed to be peculiar to that State, though as

respects his right to recover bacJc what has been already
title,
nearly through the centre of the

a mill-seat upon it; and
tract, with
that these advantages were the principal 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-
and that by the general terms

of our discount law, a defence
predicated of it could be set
In
up.
alty,
that case, the verdict of the

jury
rescinded the contract, notwithstand-
was
titles,
in possession for years.

several payments on his
He made
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 parties to the case under the decree in
which the land had been
The
sold.
constitutional court, against the finding of a jury, allowed the defence ;
and the vendee was permitted

scind the contract.
ever, the Court
At
awoke
to re-
length, howto the mis-
ing the contract was executed both

by the execution of deeds and the
chievous consequences of allowing

such defences, and in the cases of
Carter v. Carter, 1 Bailey, 217, Bor-
It
delivery of possession to the vendee.

is possible that that case
might
brook
stand upon the fraud resulting from

the misrepresentation at the sale,
cases, they declared that
deaux
Cave, Id. 250, and WestM'Millan, Id. 259, undertook to retrace their steps. In those
v.
v.
ranty from the price paid, in addition to the legal covenants of seizin
where the
was executed by
the delivery of titles and possession
to the purchaser, and he had not
been evicted, that for a failure of title
and quiet enjoyment.

cases were followed by
others,
to part of his purchase,

although it
might defeat its object, the contract
where from misrepresentation, or a

failure of consideration, in
part, which
would not be rescinded in a court of

law; and that the party must seek
defeated the purchaser's object, in

making the purchase, the contract
relief in a court of
equity.
without resorting to the wild doctrine, that there was an implied war-
These two
many
was rescinded. The extravagant results to which we were conducted,
may
be illustrated by the case of the
Commissioner in Equity
R. Pearson et
v.
Robert
In that case the
contract of
sale
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
land had been sold under a decree
a good legal estate to him, and to

account for rents and profits to the
in equity in the case of Delilah
extent of the vendor's
al.
Per-
by her committee, v. The Executors of Aaron Cotes, dec'd, and
ry,
tainly true,
purchased by the defendant, PearHe received

son, at a great price.
take place.
title, were cerand showed that in such
a case a rescission at law could not
The
rule of these cases
was admirably explained by the only
THE PURCHASER
706
paid,
law that has been
the
1
elsewhere
is
there
referred
the
as
to
prevailing
and enforced.
recognized
fully
early cases in that State,

in the sale of real estate,
RIGHT
maxim
In
of caveat emptor,
was adverted
Dorthe
on
his
Jackman,
plaintiff,
sey
paying
purchasemoney, took from the defendant, his vendor, a mere assignment of a commissioner's deed under a tax sale, and, on
to
and
in
v.
discovering that it conveyed no title, brought suit to recover

the amount of the purchase-money, 4 and, under the
charge
The judgment was,
of the Court below, obtained a verdict.
however, reversed by the Supreme Court, on the ground

that there being no implied warranty in the sale of real
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,
estate,
which
is
in accordance
with
all
surviving member of the excellent

court which pronounced the decisv.
v.
M'Millan,
on the ground, principally,

a court of law has not the full
power to do full and adequate justice
to the parties.'
When these observa-
v.
Purvis, 1
tions are understood as applying to
In that case, Johnston,
an executed contract accompanied

by possession of the land, they give a
Carter
ions in
y.
Carter,
Cave and Westbrook
in the case of
Hill, 326.
J., said
'
:
Johnson
The
first
Bordeaux
ground of
this
is founded on a misconception
of the cases of Carter v. Carter, 1
motion
Bordeaux v. Cave, Id.

and Hext v. Morgan, decided in
1829, and from what has occasion-
Bailey, 217,
250,
ally fallen
the decisions elsewhere, has
from the bar in reference
sideration,
that
perfect
exposition
the
also
cases noticed in
Brickell, 2 Hill, 143,
O wings,
am led to conclude,
impression is not unusual
that want of title in the vendor of
bie
land, either in whole or in part, is

not a good defence to an action
Caines* Lessee
to these cases, I
that the
brought at law to recover the purchase money. But these cases incul-
no such rule ; they maintain,

however, that a court of law cannot
rescind a contract for the sale ofl<tn<l,
on account of a partial failure of con-.
cate
of the
rule
as
by the Court of Appeals

in 1829, and ever since inflexibly
maintained by the law court." See
settled
v.
v.
v.
2 Rich. 127.
See supra,
Boyd
Means
and Abercrom-
p. 614.
Bopst, 2
v.
Dallas,
Henderson,
91
Bin-
ney, 108.
3 1
Serg.
4
The
&
Rawle, 42.
plaintiff
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.

1
In delivering their opinions,

2
however, two of the learned members of the court adverted
to a distinction that might exist as to the purchaser's right
been consistently adhered
to.
under such circumstances, to detain so much of the purchase money as should remain unpaid, but a definite expression of opinion on this point was, it was said, reserved until
the determination of a case that had already been argued.
That case was Steinhauer
v.
3
Witman, decided
in
1815
the leading authority in Pennsylvania upon the point of detention of the purchase-money. The defendant's intestate having
received a deed with a covenant of warranty limited to the

acts of the vendor, gave a mortgage for the purchase-money,
an action on this mortgage,

evidence was admitted
O O
by the Court to prove that the purchaser had been evicted
from part of the mortgaged premises, under a title para-
and
in
mount
'
and of course not covered by
to that of the plaintiff,
his covenants.
The admission
by the plaintiff, on
the Supreme Court, that to
for error
of this evidence was assigned
whose behalf
make him
it
was urged
liable
extent of his covenants, would be to confound
in
beyond the
all
distinction
between limited and unlimited covenants, and be a violation

4
and Tilghman, Ch. J., in
of the agreement of the parties
;
delivering the opinion of the Court, admitted that this argument was not wanting in plausibility and even in strength,
and that if the question were entirely a new one, it would
a satisfactory answer. " But," he continued,

principles have been established, which are adverse
to the plaintiff's reasoning and must be considered as the
be
difficult to
give
it
Lighty v. Shorb, 3 Penn. R. 447 ;

v. Kitchen, 7 Barr, 486.
It
maybe proper to repeat, that even
l
Kerr
where there are covenants, the purchaser's rights must be asserted in an

action of covenant, and not in an action of assumpsit.
See supra, p. 640.
Tilghman, Ch. J., and Yeates, J.

& Rawle, 438.
4
Sugden on Vendors, 313, and
Bree v. Holbeck, Douglas, 6o4 supra,
p. G14, were the authorities relied on
3 i
Serg.
for the plaintiff,
708
law of the land.
offered
if
hy
The
does not deny that the matter

would have been a good defence,
plaintiff
the defendant
the contract had rested on articles
had agreed
by which the plaintiff

and the defendant had covenanted to
to convey,
pay the purchase-money and yet if these articles had only

bound the plaintiff to convey with covenant of special warranty, it would have been as much against the spirit of the
:
make him
responsible for an eviction under a

it is now, after he has
as
paramount,
conveyed with a
distinction has been estabcovenant of special warranty.
lished between purchasers who have paid, and who have not
contract, to
title
Those who have paid, have no

paid, the purchase-money.
relief, but those who have not paid, are relieved, in case of
an eviction or manifest failure of
There
title.
is
a dictum
1
purpose by Lord Commissioner Rawlinson, and the
point was directly decided in an anonymous case, 2 Cases
2
in Chancery, 19
The case of Tourville v. Nash, 3 is also
worthy of consideration, although not directly in point.
to this
There the purchaser paid part of the money, and gave bond
After giving bond, and before payment,
for the residue.
he received notice of an equitable
had purchased, and
it
was held
lien
on the land which he
that he should be subject to

came too
the lien, although he contended that the notice
The dictum
thus referred to
an anonymous case
106.
bill filed to
chaser, on the
in
is
in
Freeman,
relieve a pur-
ground of a fraudulent
representation of value, was dismissed
because of his laches, " and a case
was cited by the Lord Keck. A purchaser brought his bill to be relieved
where incumbrances were concealed,
but was dismissed, for he ought to
have provided against it by covenant;
but it was said by llawlinson, that if
the purchaser had in that case had
in his hands, that this Court

would have helped him, but not after
he had paid his money."
money
This case (which has been already cited at length, supra, p. 615,
has always been deemed as of doubtful authenticity and authority, and
even in Pennsylvania has

to be " not worthy of a
"
consideration
Lightj
r.
Penn. R. 451.
33 Peere Williams, 807.
been said
moment's
Shorb, S

late,
709
But the
was no defence
because he had no defence against the bond.
Lord Chancellor answered,
that though there
law, yet equity would, in such a case, stop payment of

1
I have reason to believe, that
the money due on the bond.
at
the Courts of this State have been governed
by the
princi-
the case in % Cases in Chancery, 19, so that to set

ples of
2
The
create confusion."
up a different rule now would
judgment was therefore affirmed.

It is familiar
that the absence of a
court of equity in
rise to the practice of exercising equita-
Pennsylvania gave
3
through the medium of common-law forms.
Such a practice would fully account for the application,
ble jurisdiction
v. Witman, of such equitable principles as

the
rights of the parties to contracts when exeregulated
cuted^ but it would not account for the application, in that
Steinhauer
in
case, of
1 It
such equitable principles as govern executory con-
must, however, be observed of
he might defend himself in a
suit for
this case of Tourville v.
Nash, that
the contract was not executed, but
the consideration-money, by showing

that the title was defective, either in
executory. If it had been executed

by a conveyance containing no cove-
the whole or in part, whether there

was a covenant of general warranty,
nant which included the lien in question, equity could not have relieved
or other
the purchaser see supra, p. 614.

2 Mr. Justice
Yeates, in delivering
"
his opinion said
During the argu;
engagement on the part of

the vendor, that he had a good title,,
or a right to convey, or of quiet en-
the general practice and usage which
joyment by the vendee, or the like

covenants, or not; and that, as to thispoint, it had never been deemed of
the least moment, whether the vendor
had uniformly prevailed in Pennsylvania on this subject, both before and
has executed a deed for the premises

or not. ... In my sense of the Penn-
ment, I expressed
since the
my
ideas fully of
American Revolution.
asserted the
general understanding
sylvania system of law, there

penitentice until the
3
money
is
is
a locus
paid."
For a sketch of the system which
have been that in all cases, unless

where it plainly appeared that the
purchaser agreed to run the risk of
there prevailed, the student is referred to Mr. Laussat's brief Treatise
the
on Equity
to
title
or where
(either
it
by
might
special contract,
fairly
be inferred,
from the consideration-money being

highly inadequate to the value of the
premises at the time of the contract),
60
in Pennsylvania, which,
although written before he was admitted to the bar, has been always justly
regarded as not less remarkable forits
accuracy than
its
elegance.
710
The
tracts.
difference
between these two principles has

l
before the conalready been referred to as a broad one

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
The
the covenants he has received.
equity, solely by
therefore, of the doctrine of Steinhauer v.
in
effect,
Witman, was,
as
have been perceived, to blend these sets of principles

together, and when taken in connection with the previous
will
v. Jackman, to give to a
purchaser greater
a
defendant, than he could have as a plaintiff.
rights as
In the case of Hart v. Porter's Executors, 2 which followed
case of
Dorsey
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
considered as settled.
was unanimous,
must be
it was not
the law
I will freely confess that
without considerable reluctance I agreed to the principle

established in that case, nor did I make up my mind, until
had taken pains to ascertain what had been the understanding and practice in this State, for a great length of
I
time.
Being
at length
satisfied that the prevailing opinion
lawyers, judges, and men of business had been that

until payment of the purchase-money, the vendee might
among
avail himself of a defence
founded on defect of
where he had accepted of a conveyance with

ranty only, I thought it incumbent on me not
title,
special
even
war-
to oppose a
to equity.
principle in which there was nothing contrary
Indeed the objections to this principle are not founded so
much on equity, as on policy and convenience. For where
one party intended to convey, and the other expected to

a good title, it is but equity that the purchaser
receive
should have relief in case of any defect of

l
See supra,
p. 611.
25
Serg.
&
title,
although
Rawle, 201.
711
was no express agreement to that purpose. Where

the intent was that the purchaser should run the risk of
And such
title, there is not a word to be said for him.
there
he
intent
may
at the
time of purchase, and
fairly inferred,
where he knew of the defect
made no
it
in
was
er-
provision against
his agreement."
i
In Hart
v.
Porter's Executors, the
might mislead the jury,

roneous, and
meaning.
We
defendant with special warranty, the

latter proved an outstanding title of
to consider
whether
dower
in the wife of a
to rebut
in
which the
former owner,
plaintiffs offered
evidence a release from her hus-
band and
herself,
commencement
subsequent to the
which the
of the suit
Court, under objection, admitted, and
that
it
if it
we ought not to suppose
having brought suit in the

court below, on three notes given for
the purchase-money of land sold to the
plaintiffs
was given without object or

are bound, therefore,
it be erroneous."
After using the language quoted in

the text, the learned Chief Justice
" I hold
continued
myself bound,
by the decision in SteinWitman, from which the case
therefore,
hauer v
now
before us differs in nothing but

the circumstance of there having been
then charged the jury, that as there
no eviction by the party who had the
had been no previous agreement to

convey the land free from incumas the incumbrance existbrances
right of dower.
ed at the time of the purchase made

as he had a full
by the defendant
have no chancery. Matters of law

and equity, must, therefore, be decided in the same court, and on the
opportunity of making himself acquainted with the circumstances of

the
title,
and accepted a conveyance
without general warranty, he could

not then avail himself of any defect
of
title,
as a defence to the action,
and was answerable
for the
whole of
the purchase-money.
Upon writ of
error to the Supreme Court, it was
there held that the evidence had
been properly admitted, but the judgment was reversed, upon the ground
of the charge.
to us," it
" It does not

clearly
"
was
this
appear
why
charge was given, if the release of
dower given in evidence by the plaintills was effectual.
Perhaps, there
said,
were other incumbrances not appearAt all events, it
ing on the record.
But here again, I
consider the practice in the courts of

this State as firmly established.
We
same
trial.
What
is
to
be done in a
the present ?
The outstanding title of dower is notorious,
although no suit has been brought on
case
like
What can
it.
the defendant do ?
He
has no means of compelling a suit ;

must he then pay his whole purchase-
money
to-day, without a possibility
it refunded, when he can

appear that he is liable to be
turned out of one third of his pos-
of having
make
it
session
to-morrow
Is there either
reason, justice, or equity, in such a

proceeding ? I know that this matter
is
there
it
not without difficulty because

may be other cases, in which
may be
uncertain, whether an evic-
tion will ever
take place, although
THE PURCHASER
712
The
principle
announced
been qualified and explained

the
title
But
be defective.
it is
ter to encounter difficulties,
Steinhauer
in
in
bet-
and en-
deavor to do equity as well as we

can in each case, than adopt a sweeping principle, which may put it out
of our power to do it in any case.
RIGHT
many
ture
shall
may
may be
it
do it.
Considering then that it
was decided in the case of Steinhauer
to
v.
Witman,
that a purchaser not hav-
self
be ruinous for another. In this State,

land may be considered almost as an
and
be cultivated,
must be considered by
What is good
justice.
for one,
has
necessary to alter the law, and it is

always in the power of the legislature
ing paid his
courts of
Witman
subsequent cases,
The circumstances of every country

its
v.
money may defend him-
under a defect of
title,
where
part of his purchase has been evicted, although he has accepted a conveyance with no more than special
commerce. Rapid transmade, and great quantities

are held by persons who never saw
their possessions.
Titles, which by
warranty, and considering that where

there has been no eviction, it would
inspection of papers, appear perfectly

good, may be defective in conse-
defective title, I am of opinion that

the charge of the Court of Common
Pleas was erroneous. The judgment,
article of
fers are
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,
are brought for the recovery of purchase-money, and discoveries are made from time to time of
many suits
defect of title, although no eviction

has taken place. Under such circumstances, 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.
When
another
state of things shall take place; Avhen
the lands
now
lying in a state of na-
be against equity to compel payment

of the whole purchase-money, for a
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
Where
to
the
such covenants exist,
seller.
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 outstanding title which was relied on by
the defendant had been extinguished,
and
for
anything that appeared upon
the record, a second trial must, therefore, have resulted similarly to the
first.
This case should be read in
connection with Ludwit-k
v.
Hunt-
infra, pp. 717, 724.

Thus, in Friedly v. Scheetz, 9
r,
713
be stated in general terms, to be, that in

defend himself from payPennsylvania, a purchaser may
their result
may
in
The reasons on
distinction.
which the Court proceeded, in a sher-
not to apply to purchasers at a sher-
are fully stated in Friedly

Scheetz, and are as applicable to
the defendant in the execution, as to
& Rawle, 161, where (as also

Auwerter v. Mathiot, Id. 403, and
Wiedler v. Farmer's Bank of Lancasheld
ter, 11 Id. 134,) the doctrine was
Scrg.
iff's
sale,
Mr. Justice Duncan
" Steinhauer
v.
understood.
It
Witman
is
said
not well
does not go to the
wild length, as some have supposed,

that a man who purchases a title with
and imperfections, and

whose conveyance contains no covenants of warranty, is not bound to
pay the bonds he has given for it.
For Mr. Justice Yeates, the great
all its
defects
such
iff's sale,
v.
It would be manifestly
there said, to release the
purchaser from his bid, on account of
a defective title, the very cloud which
the creditors.
unjust, as
is
its value, and not to relieve

the defendant in the execution, when
obscured
he was able to dissipate that cloud

which sacrificed his property. The
duties of both are plain.
chaser must examine the
The
title
purbefore
advocate for the departure from the

general rule, both of law and equity,
of caveat emptor in the sale of lands,
lie buys, and it is the interest of the

defendant, as far as he can, to clear up
yet restrains its operations, for he

puts it on a very rational principle.
The obvious and plain rule he says,
to its validity.
what was the true meaning of the

contracting parties was it contem-
execution will be
plated, mutually, that the purchaser

should hold the land under a good
stinacy.
is
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" I do not understand that the
ply.
plaintiff denies the general principle,"
any objections which may be made
as
If the purchaser will
not inquire, he must suffer for his conand if the defendant in the
fidence
his title,
it
silent,
and not show
he must suffer for his ob-
When the sale is a fair one,

binds both the defendant and the
purchaser. But it is said, that a sale

by the administrator is not a judicial
But we conceive that a sale by

an administrator, under an order of
the Orphans' Court for payment of
sale.
is a
and that the
judicial sale
principles which govern the one are
As in the
applicable to the other.
debt,
said Rogers, J.,in delivering the opinion in Bashore v. Whisler, 3 Watts,

" as
493,
applicable to a sale by a
sheriff, but he argues that there is a
case of a sheriff's sale, the purchaser

takes only the interest of the heirs
between a sale by an administrator, and a sheriff's sale; between creditors, and the. defendant
in an execution, and the heirs of an
intestate.
The law recognizes no
land
is
order
difference
60*
the administrator
is
who makes
the sale
but the officer of the court.
it
and receive
the
The
The
in pursuance of their
must be returned to them
sold
their confirmation before
vested in the purchaser.

administrator makes no war-
title
is

ment of
the purchase-money, by reason of a clear outstanding defect or incumbrance, unless the intention was that he
was
run the risk of
to
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 presence of covenants which include the defect or incumbrance.
The
seem
cases
to be susceptible of division into three
classes.
First.
Second.
Where the defect or incumbrance is unknown.

Where there is a known defect or incumbrance,
and no covenant.
Where
Third.
there
is
a covenant against a
known
defect
or incumbrance.
Where
First.
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
two questions arise

first, what defects or incumbrances will entitle the purchaser to detain the purthis head,
and secondly, what

sence of notice on his part.
chase
money
With
respect to
brance, although
it is
generally said that the contract
title, either for himself personally or the heirs and it is understood that the one sells, and the other
;
title
as
it
is,
was
The same
and as
vested in the intestate."

principle
was
Watts
&
Fox
But
it
v.
subjects the contract to the control of

a jury, prone to forget that to cut a
man
loose from his bargain from mohumanity, is the rankest in-
tives of
Mensch,
justice;
King v. Gunand Kennedy's
has been well said by the
Chief Justice Gibson, that " the
is still
greatest practical evil of the doctrine

(of Steinhauer v. Witman) is that it
the
Serg. 446,
nison, 4 Barr, 171,

Appeal, Id. 149, 153.
late
it
also enforced in
subsequent cases of
be deemed an ab-
the character of the defect or incum-
ranty of
buys the
will
and from
this, it
would seem
sound policy to extend it no further

than it has been already carried;"
Lighty v. Shorb, 3 Penn. R. 451.
1
It
is
scarcely necessary to say
that the character of the defect or
715
executory as to the unpaid purchase-money, yet this expression must not be understood to mean that a purchaser will,
after the execution of his deed,
purchase-money
in every case in
to decree a specific
have a right to detain the

which equity would refuse
performance by him.
While on the one
not necessary that an eviction should have taken

hand,
1
incumbrance have been paid off by the purplace, or the
it is
must
incumbrance
be
lawful,
as
distinguished from a tortious interruption,

Allison,
supra, p. 165; Spear v.

8 Harris, (20 Penn. State
price also which he agreed to

to the party who put him into
Carnaban v. Hall, Addi son, 127;

Goucher v. Helmbold, 1 Miles, 407;
Hart v. Porter, 5 Serg. & Rawle,
201
Share v. Anderson, 7 Id. 61.
" The effect of
incumbrances," it was
pay
" as
said in the latter case,
showing
failure of 'consideration, or a defect
chase
possession."
The purchaser may, of course, by

own acts deprive himself of his
his
title,
is
certainly different in
Pennsylvania from what it is in England 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
take place," and

this was repeated in the recent case
of Beaupland v. McKeen, 4 Casey,
that eviction
may
(28 Penn. State R.) 130, but it was

added with great correctness by
Woodward,
J.,
who
delivered
the
"
This is a very delicate

on
which to administer jusground
tice to vendors and vendees, for in
determining the possibility of an
opinion,
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
or if
attempted to assert them
he have rights it is possible he may
and
never attempt to assert them
eviction
would be against
unsubstantial a cloud rests, and
so
the
in the
it
conscience and equity to allow the

purchaser to keep the land, on which
R.) 200.
l
case
in either
defence from payment of the purmoney, 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 himself by reason of a defect of title.
So, in Harper v. Jeffries, 5 Wharton,
26, the defendants gave ten bonds,
each to secure $500, for the purchase money of a house, which they
soon after discovered had been pre-
viously
to the
$2,470.
veyed
mortgaged
by the
vendor
Bank of Pennsylvania for

The vendor thereupon con-
to the
defendants other prem-
to indemnify them
mortgage, and the defen-
order
ises,
in
from
this
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
THE PURCHASER
716
1
chaser,
yet on the other,
it
will not
The premises which

had been conveyed by way of indemnity were afterwards sold, under
the vendor.
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, reversing the judgment below, that the
defendants were not entitled to any
defence from payment of the pur" The failure of the
chase money.
consideration," said
nedy,
" that
who
Mr. Justice Kenthe opinion,

of the land for
delivered
the
is,
loss
which the bond in suit was given, is

on as a defence [against the
relied
payment of
it
to
this
defence,
must
it
merely equitable, and

the defendants to avail
be observed,
entitle
is
it, they ought to have

they had no means of
without being the
it,
themselves of
shown
that
preventing
losers,
or giving up
that
which of
right belonged to themselves, for the
purpose of satisfying the mortgagedebt owing to the Pennsylvania

Bank, which occasioned the sale and
But in
May, 182G l the time when the land
was sold to pay this mortgage-debt,
the loss of the land to them.
then amounting to $2,612.36, besides

interest thereon from the first of
June,
upon
1823,
the
defendants
their bonds, outstanding
owed
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
RIGHT
mort-
be
sufficient, if the title
gage debt of the Bank. The money,

thus owing by them upon their bonds,
may with great propriety be considered as money in their hands belonging to the obligee, 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
on account of it.
Had they
done this, they would then have had
and held the land discharged from
all incumbrances, and would have
been entitled to a credit upon their
bonds equal to the amount so paid.
And this would have protected them
completely from all loss, either by
means of the land being sold from
them, or having had to pay money,
sold
which, properly speaking, could have,
been regarded as paid out of their

own pockets. If the amount of the
money, owing by them

was not sufficient to
at that time,
have
paid
off 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 er the other; and

then admitting that they had the
right to elect to
which
it
should be so
appropriated, which seems to be conceding to them the most that they

can ask in this respect, but not having applied
it
to the discharge of the
Bank
it
is
debt,
no more than
fair to
intend that they elected to pay
it
in
discharge of their bonds, and have

therefore preclu<Ic<l themselves from
setting up the defence that was relied
on at the trial of the cause.
1
Thus
& llawle,
in Poke r. Kelly, 13 Serg.

165, although the purchaser
717
can merely be shown to be doubtful, or the incumbrance

1
its character is such as to
merely contingent, and unless
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
its amount from the purchasemoney. 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
deduct
found
for the plaintiff,
with stay of
execution until releases from these
been obtained.
Motzer, 13 Serg.
heirs should have

1
Culler
v.
&
governs, where the contract for the

purchase of the land remains in fieri,
and the action
is
tract itself with a
brought on the conview to enforce the
payment of the purchase-money according to its terms. There if it

should appear that the title of the
vendor to the land is anywise doubt-
vendee
the
ful,
bound
to
will
not be
held
pay the purchase-money
it
Stoddart v. Smith, 5 Binney,
365 (and see supra, p. 612), unless
it should also appear that he had exDorsey v.
pressly agreed to do so
for
&
42
Penn v. Preston, 2
Rawle, 356
" I do not
Rawle, 1 9
wish," said
Jackman,
Mr. Justice Kennedy, in Ludwick

"
Huntzinger, 5 Watts & Serg. 58,
in this
(for the point actually decided
case, see supra, p. 706), and these
v.
to
Pennsylvania
Serg.
v.
Rawle,
Simms, Addison,
9 ;"
be understood as saying that a supe-
views were cited and approved in
rior title outstanding in a third person, when shown clearly to exist, and
the late cases of Crawford
that he claims the land
by virtue of
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
it,
will not
was explicitly agreed and understood

between them, at the time, that the
vendee was to take the title of the
v.
Murphy,
10 Harris, (22 Penn. State R.) 87,

and Beaupland v. McKeen, 4 Casey,
(28 Penn. State R.) 131. In Brick v.
Coster, 4 Watts & Serg. 494, the Court
held an affidavit of defence insuffi-
because it did not allege the

validity of the adverse claim, or at
least the defendant's belief in their
cient,
The remarks of Mr. JusYeates in Stoddart v. Smith,
validity.
tice
vendor, such as it was, at his own

on the contrary, I admit, that,
according to the authorities, it will
that "
be a good defence. But I wish to be

distinctly understood as laying down
warranty, where it plainly appears

that he cannot obtain a good right
risk
the principle that in order to make

such outstanding title a good defence
such
it
must be clearly
be indubitably good, and
that the land is actually claimed under it.
It is proper, however, to
in
shown
observe
cases
to
that
a different
principle
to
a^man
pay
be compelled
which he has pur-
will not
for lands
chased, though
even with
general
were obiter dicta in the

which was one where no deed
had been executed, and they must
be considered as limited to the applitherefor,"
case,
cation
pointed out in
Ludwick
v.
Huntzinger.
The
distinction
noticed
in
that
THE PURCHASER
718
RIGHT
defeat the purchase, as, for example, by requiring the whole

of the unpaid purchase-money for its removal, the purchaser
not allowed
is
on
this
ground
case as to the rights of the parties

while the contract is still executory,
and after it has been consummated
execution of the deed,
the
by
al-
though by no means so broad a one

as exists elsewhere (see supra, p.
612
et
seq.),
yet still is recognized to

extent in Pennsylvania
a greater
than the language of some of the
earlier cases would seem to imply.
" If the vendee
discovers," said Mr.
Justice
Kennedy
in
Moore
v.
2 Watts, 259, in speaking of
Shelly,
an exe-
" before he has

cutory contract,
paid
the consideration or any part of it,
if it
to
rescind the contract,
should turn out that there was
a defect of
or outstanding in-
title
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
had not conveyed a good

and this was the
case of Hart v. Porter, 5 Serg. &
plaintiff
and
sufficient title,
Rawle, 201."
Magaw
the
upon
proceeded
v.
Lothrop
principle
in
equity, that in a suit for specific per-
that
formance, the vendor may perfect

his title at any time before final de-
discharge, he
cree.
Where, however, the incumbrances are not removed until after
the property is under incumbrances which the vendor cannot
has a right to insist

upon rescinding the contract, and
may therefore refuse to pay for it, or
to
do anything on
carrying
it
his part
into execution."
towards
So
in
suit is brought, the

titled to costs;
Serg.
&
Atkinson,
Rawle,
1
is
en-
Kelly,
13
purchaser
Poke
165
v.
j
Withers
v.
Watts, 248.
Renshaw, 2 Barr, 34, (unless the

purchaser retain possession of the
Thus in Harper v. Jeffries, 5

Wharton, 26, of which the facts have
been stated supra, p. 715, the Court
" It would seem to have been
said,
claims,
and buy in the outstanding

in which case he will of
claimed for the defendants, that they,

at the time the land was sold on
course be compelled to pay the price

agreed on, with a deduction for the
account of the mortgage-debt owing

to the Pennsylvania Bank, had a
v. Baird, 7 Watts, 229

ColHamilton, 10 Id. 16 Gans v.
Withers
well
v.
land,
amount thus paid by him, Renshaw

v.
Gans,
and
Barr, 171, infra, p. 720),

this is the general
principle
which
everywhere observed suBut, as was said by Mr.

Justice Sergeant in Magaw v. Loif he
throp, 4 Watts & Serg. 321,
accept a dc-cd under the contract,
the vendor may sue for the purchasemoney on bond or otherwise, though
is
pra,
p. 123.
right to rescind their contract for the
purchase of the land, so far at U-ast,

as to give it up to be sold for the
debt,
and
to
claim to be releasril
from the payment of any more of

the purfhasonioiu'v, than what they
had previously thereto paid of it.

This ground does not appear to ha\ c
luM-n repudiated by the Court bolmv,
but rather to have been submitted to
7*9
but can only defend pro tanto^ and the measure of damages
the jury as tenable, in connection
with the, evidence of the value of the
improvements made on the property

by the defendants which could only
;
have been admitted with a view 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
and therefore it would
it to be sold
not only be hard, but cruel as well as
unjust, to require them to pay any
;
portion of the residue of the
chase
ever,
money.
is
This
purground, how-
a mistaken one, and wholly

If there was any time,
untenable.
after the contract for the
purchase
was carried
when
into execution,
the
defendants could, with any degree of

plausibility, have claimed to be released from their purchase, it was
when they were first told of the in-
cumbrance
in favor of the PennsylBut it is clear that the
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
time to attempt such a thing.

defendants had thus been in the
all
The
full,
and uninterrupted enjoyment of

the property, until they had become
free,
delinquent in paying a portion of the

purchase-money more than sufficient
to have met and paid off the incumbrance.
as has
This,
been shown
above, they might have done with

and
perfect safety to themselves
;
vania Bank.
considering
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,
vendor, it was inequitable in them to

withhold it. If then they have sus-
the defendants could not have
insist-
ing to reconvey the property to their
such case
vendor, upon their being reimbursed
The
step to bring about such an

event, the defendants go on to ratify
any
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
money
of the
they have no right to claim redress.

must be considered dammim sine
It
Instead, however, of claiming to have

the purchase rescinded, or taking
as the
tained a damage or loss by suffering

the property to be sold from them,
ed upon a rescission of their purchase, without reconveying or offer-
by him any expenses necessarily incurred on account of the purchase.
it
injuria; for the

is,
maxim
volenti
of law in
non Jit
injuria.'"
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

in his
hands wherewith
still
to discharge
is bound to do
up the loss of the
property as a defence in toto, was
in
also recognized and enforced
M'Ginnis v. Noble, 7 Watts & Serg.
the ineumbrance, he
so,
and cannot
set
THE PURCHASER
720
which he
will
purchase-money
be entitled to
is
the
same
Lantz, 2 Id. 192; Mellon's
v.
Appeal, 8
R.)
127.
defalk
Casey, (32 Penn. State

In M'Ginnis v. Noble,
man is not bound to pay

what he has not received. The
bonds are given for the purchasefor
the land, and having lost

the land, without any default of his
money of
own,
two bonds, amounting to $3,000, given 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 defendant for $750, and it was contended on his behalf that there was a
just that
total failure of consideration,
title to
"
The
unpaid
ration, for a
supra, the defendant was sued on
but the
against the
which has been hereto-
as that
454; Renshaw v. Gans, 7 Barr, 117;

Dentler v. Brown, 1 Jones, 298 Garrard
RIGHT
it
would be inequitable and unhe should be compelled to
pay any part of the purchase-money.
But
will
further
equity interpose
than for the purpose of protecting

him against any loss he may have
actually sustained ?
We
The vendee cannot
justly complain
think not.
that he
is not
permitted to obtain
land for $750, for which he
agreed to give $3,000. In both cases
a court of equity relieves to the ex-
must be
purely equitable, and
what would a Chancel-
tent of the vendee's losses, viz., to
do under such circumstances on

what terms and to what extent would
the amount of $750, in one case,

and for the whole consideration in
he afford equitable relief? It strikes

me most forcibly that all the vendee
tion
has a right to require
pro tanto in the other.
Court
said,
remembered,
the inquiry
is
defence,
it
is
lor
be placed
in the same situation he would be in
is
to
had he paid the incumbrances without suit and in that case, it must be
admitted, the measure of equitable
relief would be precisely the money
;
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
paid,
He
the other.
is
The
total in
failure of consideracase, and

Evenhanded
the one
requires, that while on the

one hand he is not suffered to lose,
on the other, he shall not be allowed
justice
to gain anything by the sale.

Pie
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 reasonable allowance for expenses incurred

in the extinguishment of the
incum-
brances, for to that extent he
is
in-
might, therefore, it is admitted, have suffered the land to be

sold with a clear conscience, and if
jured and no more."
by a judicial process a
had purchased, no blame
would be imputable to him; the defence would go to the whole conside-
ring to the authorities just cited, said

that they "establish the distinction
with.
at the sale
straniftT
In the recent case of Garrard
t>.
Lantz, supra, the Court, after refer-
that \vhcic the, vendee himself lecomes the purchaser at the judicial

fore referred to as recoverable
nants for
With
721
upon breaches of the cove-
title.
what
respect to
will
be deemed to be notice on the
it would seem that mere constructive

part of the purchaser,
notice will not be sufficient to deprive a purchaser of relief
sale,
lie
remains
liable to the
ven-
covenants for
may produce
sold to a stranger, this liability de-
relative value
pends on the inquiry whether
away bears
at the
period of the last sale, the vendee

had in his hands, of the consideration
of his purchase, a sum sufficient to exWhere,

tinguish the incumbrance."
title is
and according
dor for the residue of the purchase

money unpaid, but if the land be
to
applicable here,
to that, either party

evidence to show the
which the part taken

the whole, and this,
was said by Kent, C.
as
J., in
Mor-
Phelps, 5 Johns. 56, operates

with equal justice as to all the par-
ris v.
In Lee v.
Wharton, 331, Judge Ken-
the conveyance.
to
ties
however, the incumbrance on the land

is
greater in amount than the unpaid
Dean,
purchase-money, the vendee has an
emphasis as applicable to a case unThe relative

tainted with fraud.
obvious right to treat the contract as

rescinded, Garrett v. Cresson, 8 Casey, (32 Penn. State 11.) 375.
i
Thus
Supra, p. 88, 673.
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 forHe then sold the

to the latter.
mer
tavern to one purchaser, and subsequently sold the mill property to another.
The
latter
had no notice of
the easement, and in an action for

the purchase-money, it being proved
that the existence of the
easement
would lessen the benefit of
his
pur-
chase, the jury was instructed that

the value of the easement might be
deducted from the amount of the

purchase-money, and
was affirmed on
this instruction
error.
cent case of Beaupland
So
v.
in the re-
McKeen,
Casey, (28 Penn. State R.) 134,
it
was
by Woodward, J., in delivering

the opinion of the Court, " The rule
that applies to damages on breaches of
said
61
nedy reasserted the rule with great
value of the part to the whole
is
to
be estimated with regard to the price
by the parties for the whole.

White v. Lowry, 3 Casey,
(27 Penn. State R.) 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 V
This was the
fixed
S. P. in
question in Stehley
500, though the case
reported
that
the
v.
Irvin, 8 Barr,
is
so defectively
point
ruled
is
It was compescarcely discernible.

tent for either party, under this rule
with its limitation, to give evidence

of the peculiar advantages x>r disadvantages of the part lost; and the
inquiry should not be unduly reit is confined to the
strained whilst
proper point, but undue latitude was

allowed to it when the cost of erecting a saw-mill on an adjoining tract
was
jjone into."
722
under the doctrine we are

2
Miller,
now
where the land was
In Roland
considering.
v.
under a decree of the
subject,
Orphans' Court, to a charge in favor of the vendor's coheirs,
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 knowlThis being
edge of the same, until some time afterwards.
could not be supposed that any covenant contained in the deeds, was taken or inserted specially with a
the case,
it
it.
The
was
within
the
Steincase then fell,
said,
authority of
So in a very recent case, 3 it was held
hauer v. Witman.
view
to protect the defendant against the effect of

it
that the fact that the
old
deeds, which
contained a ref-
erence to the incumbrance, were on record and lay in the

title, was constructive notice, but was not
channel of the
conclusive of such actual knowledge as would imply the

consent of the purchaser and his intention to take the risk of
the
Had
title.
he taken a covenant that would have covered
the defect, the implication of actual knowledge would have
been
1
irresistible.
Banks
v.
Ammon,
3 Casey, (27

2 3 Watts &
Serg. 390.
giving
Murphy v. Richardson, 4 Casey,

dis(23 Penn. State R.) 293.
senting opinion in this case will be
found
4
in 2 Phila. 11. 419.
Citing
Fuhrman
v.
by recital to a trust deed,

date and record, and which
contained a covenant which included
ly referred
Loudon, 13
Kawlc, 86. See w/ra,p. 735.

Thus in Kerr v. Kitchen, 5 Harris,
Serg.
(17 Penn. State 11.) 433, the purchaser accepted a deed which express-
its
the defect, and
it
was held that
absence of evidence
in the
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 taking the covenant
See as to this
tn/ra
>
P-
723
Where
Second.
there
is
known
723
defect or incumbrance,
1
has been already shown that the rule

as generally settled elsewhere than in Pennsylvania with
to detain the purchase-money,
respect to a purchaser's right
and no covenant,
it
incumbrance be not covered by his

the presumption that he intended to run
that if the defect or
is,
covenants for
the risk of
title,
so strong as to admit of no evidence to

cannot be detained
and the
it, is
the contrary,
purchase-money
under any circumstances into which fraud has not entered
and in the enforcement of these principles, equity follows
;
the law.
It
that while such a principle has
not been recognized in Pennsylvania to its full extent with

has been altogether
respect to a defect of title, its application
1
Supra, p. 613.
In cases of sales by
damages,
sheriffs,
com-
his notice
cannot prejudice
But un-
that right; supra, p. 128.
missioners,
der what have been styled the equi-
er,
table
and the like, the purchasfrom the very nature of the trans-
action, necessarily
buys at
own
his
and cannot detain the purchasecircumstances, by

reason of incumbrances or defects of
risk,
money under any

title
Friedly
v.
Scheetz, 9 Serg.
&
Rawle, 161, and supra, p. 573. The

converse of this rule applies in cases
of a partition and exchange, in both
of which a warranty is implied Sea;
ton
r.
Barry, 4 Watts
&
Serg. 184,
there is a de-
supra, p. 470. Where

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
Dickinson v.
the purchase-money
;
Voorhees,
Watts
&
Serg. 357
see
supra, p. 524.
3 In either of these
cases, whether
there are covenants or not, the fact
of the purchaser's notice is one wholly
immaterial
as, if
he be entitled to
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 executed one, and the money cannot be
recovered back unless by force of a
covenant, yet that with respect to the
unpaid purchase-money it is still executory; or, as has been said by Mr.
Justice Yeates in Steinhauer
man, there
is
a locus
v.
Wit-
peniienti.ce, until
Hence must
the money is paid.
arise the question as to the real nature
of
parties,
the contract between the

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-
and binding effect

would elsewhere be given to it.
sess the conclusive
that
THE PURCHASER
724-
RIGHT
denied with respect to an incumbrance.

In Hart v. Porter,
was said in the course of the decision, 1 that the intent
it
was to run the risk of the title, might be

when
he knew of the defect at the time of
fairly inferred
2
the purchase, and made no provision against it, and in a
that the purchaser
subsequent case, Gibson, Ch.
J., referring to this expression,
where there was a known
emphatically repeated that
defect,
but no covenant or fraud, the vendee could avail himself of

nothing, being presumed to have been compensated for the
3
risk in the collateral advantages of the bargain.
1
& Rawle, 204, cited supra,

and see the remarks on this
5 Serg.
p. 710,
ruling by
v.
Woodward,
J., in
Murphy
Richardson, 4 Casey, (28 Penn.
State R.) 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
him with
prove an
sale,
to
special warranty, offered to

informality in a prior tax
and a want of identity of the
subject of the contract with the land
purported to be conveyed. The Supreme Court held this evidence was

properly rejected by the Court below that the evidence of a defect
;
title must be such as entirely to

overcome that violent presumption
which arises in favor of the defend-
of
ant's
having received a good
title
for
the land, from the circumstance of

his
having, after inspecting it, approved it by accepting the Seed conit to him, and
thereupon giving his bond for the purchase-money
and if the purchaser took no cove-
veying
nant
for
strongly to
was
" it
protection,
goes
that
he
prove
agreed, and
his
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 barfor, even if he should after-
gained
wards
lose the land
by reason of a
superior title to it in a third person."

So in Ross's Appeal, 9 Barr, 497, it
was said, quoting the language used

Smith v. Sillyman, 3 Wharton,
in
589, that Avhere the defect is known

for, the presumption is irresistible, in the absence of
and not provided
express stipulation, that the vendee

on his own judgment as to the
relied
soundness of the
8
" In Hart
title.
Shorb, 3 Penn. R. 451.

Porter," said the learm'd
" it was said that
v.
Lighty
v.
Chief Justice,
where a purchaser knows of a defect or
incumbrance at the time of
bargain, without stipulating for a

covenant or other security against it,
he necessarily consents to take the
tin-
risk
ment
of
it
on
himself.
to that effect
is
An
intrnd-
consistent not
The
case of Drinker
725
Byers, however, sufficiently

shows that the absence of a covenant and the presence
v.
only with the reality of the transaction, but with the analogous principle
of Vane v. Lord Barnard, Gilb. Eq.
Rep. 6, in which the purchaser, hav-
known
ing taken an agreement for a special

covenant against a contingency that
of an incumbrance before executing

the articles, it is a stronger case than
might never happen, was not allowed

purchase-money as an
the
to detain the
additional security, because his con-
sent to rely on the covenant alone,

was thought to be deducible frorri 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
nature of the transaction
from the
Not only
every scrivener, but every purchaser

is
aware of the value of a covenant,
but against all

to be broken
other incumbrances discovered after;
wards, there
only.
is
the party's covenant

notice
Now, where you have
you consent with your
for
last,
eyes open, to accept the party's covenant against an incumbrance you
were aware
of;
and when you have
chosen your method of security yourself, this Court will give no other,
nor make the party do a further act,

than by the articles he has agreed to
do and the rather in this case, for
;
that the portion
not a certain in-
is
cumbrance, but a contingent one
and
therefore,
when a defect is known or suspected."

Vane v. Lord Barnard, was a case
pose, that
of a marriage settlement, by which

the defendant had, on the marriage
of his son, conveyed, with a covenant
maining
it is
reasonable to sup-
my Lord Barnard
would
not be compelled to charge his reestate, at all hazards, to se-
against incumbrances, a part of his
an incumbrance that
was but contingent, to the prejudice
of his eldest son." In Beidelman v.
estate which he had previously made

subject to a charge in the event of
arose
his
and Lord
daughter's marriage
" Notice or no notice of
said,
;
Cowper
this
incumbrance, was very material

for where a covenant is
in this case
manner, if any incumbrance

is discovered between the
executing
the articles, and the sealing the deed
in this
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 incumbrance, and because it would be

needless to enter into a covenant,
which before entering
into, is already
61*
cure
against
Foulk, 5 Watts, 308, the question

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
to the husband
by
five of his heirs,
of the
sixth,
who
brought an ejectment for a part of

the premises against one who, being
in possession, claimed to hold it under a prior deed from the intestate,
which he alleged was meant to include that part, but which, on the
face of the deed did not.
One of
the heirs being offered as a witness
was rejected by the
for the plaintiff,
Court below, on the ground that as
Penn. R. 528.
THE PURCHASER
726
RIGHT
of notice do not. together form a conclusive presumption

that the title was to be at the
The depurchaser's risk.
in
an
on
a
action
for
the
fendant,
mortgage given
purchase-
money of land sold with special warranty, offered in evidence a paper signed by the vendor some weeks before the
execution of the deed, which stated that it had been represented to
him by
the defendant that a third party made prethat he, the vendor, believed
tensions to part of the land
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
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
therefore, directly in-
was,
it
was objected
ing no provision in his contract for a

deduction from or return of any portion of the
purchase-money in case
unable to recover the
disputed ground from the defendant,
but on the contrary, paying two thirds
he should
-be
suit.
of the purchase-money in hand, and
of error, Mr. Justice

Kennedy, who delivered the opinion
of the Court, held that under the
agreeing positively to pay the remaining third on the death of the widow,
terested in
But on
the
event of the
writ
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
now
privilege of
which he
seeks to deprive him, yet requir-
which might be on the next day for

aught he knew, and during the interim, 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 aflirmed
in Lighty v. Shorb, 3 Penn. Rep.
" when tin
452, that
purchaser is
aware of a flaw, and provides not
against it, he takes the risk of it on
1
himself;" see these cases cited infra

p. 735.

that the execution of the deed,
including the defect,
merged
which contained no covenant
all
prior articles,
it
was held
by the Supreme Court, that the evidence was properly admitted.

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

known defect of title^ and no covenant which includes
is
the presumption is that the purchaser agreed to run the

risk of the title, but this presumption is not so conclusive
it,
as to exclude evidence to the contrary.

But it would seem to have been also
held that where
an incumbrance, of an amount less than that of the

purchase-money, and payable before or at the time when
there
is
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
to the consideration
chaser took the land

1
was intended
named in the
cum onere.
That the learned Chief Justice
did not
mean by
the expression in
v. Shorb, to say that where

was notice and no covenants,
purchaser was estopped from
Lighty
.there
the
producing evidence to show that he

did not mean to run the risk of the
to be in addition
deed, and that the pur-
may be
cases (and
Drinker
y.
Byers
where the
acceptance of a conveyance will be
comes within
this class)
but part execution of the articles, as

v. Schell, 1 Grant's
Cases,
in Colvin
226,
where
it
was
said,
" It
is
argued
that the conveyance showing no warranty against this injury, there is
shown by the previous

1
v. Weaver,
" The
Rawle, 384, where he said,
none.
Generally, we presume that
the contract to convey is merged in
presumption of law is that the acceptance of a deed in pursuance of arti-
incidental covenants that are not so
title, is
case
clearly
of
Seitzinger
the conveyance, but there
may
be
cles is a satisfaction of all previous

covenants, and where the conveyance
contains none of the usual covenants,
merged.
the law supposes that the grantee

agreed to take the title at his risk, or
grantee in accepting the deed, did

not intend to relinquish it, and it is
else that
he would have rejected it alIt is then said that there
together."
there
is
injury,
In this contract to convey,
a covenant against
this
very
and
that
the
not merged."
it
is
found
728
This was the decision
Wolbert
v.
Lucas, where the
issued a scire facias to

plaintiff having
recover the balance due on a mortgage given by the defendant for the purchase-money of land conveyed to her with
latter proved a mortgage given by a
special warranty, the
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
by her to the plaintiff, was for the full

value of the land, and formed the whole consideration of
mortgage
to be given
On the other hand, the plaintiff produced a

the purchase.
witness who swore that the contract was, that the defendant
would pay the paramount mortgage
responsible for it, and would take it on
that she
herself.
would be
The Court
below charged the jury, that the only question was, whether
the defendant
knew
she purchased
of the paramount mortgage at the time

for if she did, she could not claim allowance
payments made by her on that account, there being no

The jury having of course found for the
fraud or covenant.
for
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
to the jury.
was bound
10 Barr, 73.
student may, very naturally,
here recall the words of Mr. Chief
2
to
show
it
satisfactorily
The
Justice Gibson, heretofore cited, that

" the
greatest practical evil of the
doctrinc
is that it
subjects the contract to the control of a jury, prone
to forget
that
from his
bargain
to
cut a
man
loose
from motives of
humanity
Supra,
is
the
rankest injustice."
p. 724.
3 The Court then went

further, and
added that under the evidence, the
defendant should have had the instruction of the Court in her favor,
and a credit for all payments made
by her under the paramount mort-
gage.
As
this
decision
has
The charge
729
of the Court below doubtless proceeded upon

" if there was
v. Shorb, that
the language used in Lighty

the subject of some comment
the profession, I have thought
made
among
it
advisable to present the facts which
appeared upon the record somewhat

more fully than has been done in the
of the
report
Moliere, the
case.
former owner, gave a mortgage to

the
Bank
North
of
America
for
$3,867, and after his death the mortpremises descended to the
gaged
plaintiff
and defendant,
three heirs
in
two of
as
intestacy.
On
the
26th of
August, 1839, the plaintiff

sold to the .defendant his undivided
third
the premises by a
consideration was ex-
of
part
deed whose
covenant of waron 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
tained
ranty,
a special
and
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 reduced to $1,667. The first instalment
was regularly paid. Afterwards the
payments were
pressed to be $3,000, and which con-
To
Nov.
Feb.
Nov.
To
the Plaintiff,
....
20, 1840,
$800.00
15.10
11, 1841,
....
20, 1841,
805.00
the Bank,
Dec. 24, 1839,

Feb. 12, 1840,
....
$100.00
200.00
400.00
1840,
Aug.
Jan. 15, 1841,
5,
400.00
500.00
Oct. 16, 1841,
Aug.
O.ne third of these payments to
the Bank, the defendant claimed to
deduct from the balance due on the
plaintiff's
ness,
mortgage, and called a witswore that he went with
who
make
her to
the
purchase
that
19, 1842, in full,
80.00
different payments, and to take the

business of the Bank on herself. After the bargain was made, she spoke
of the amount to be paid to the plaintiff
and the Bank.
nation, the witness
On
cross-exami-
stated
that
the
she took the plaintiff's offer to sell

his share for $3,000;
the witness
she
defendant came three times
said she would pay the claim of the
thought that $2,500 was its value.

The plaintiff then called a witness,
Bank
who swore
she would be responsible
she would take
it
on
herself,
what
the plain-
she
Mr. Moliere owed the Bank
said the plaintiff was to have $3,000
asked $3,000, and the defendant

insisted on his taking less,
saying
paid to him in lawful money. The

defendant's witness being recalled,
there was a claim of the Bank.
She
then swore that he could not be mis-
agreed to give $3,000, in four
taken about the contract, the defend-
that she
the contract was
was present when
made
tiff
finally
THE PURCHASER
730
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
1
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
But
cited.
and
it
is
it
obvious that
would seem
to establish
went beyond these cases,

the rule that where there is
it
and no covenant, these circum-
notice of an incumbrance,
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
ant thought she bought the plaintiff's

that was a full
share for $3,000
;
might have been

agreed that the defendant was to pay
price
for
it
it
Bank mortgage as part of the

consideration, but she felt sure she
the
was not
to
the $3,000.
pay any amount beyond
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

The cases, however, cited in
the opinion, were not similar in their
favor.
circumstances to Wolbert
v.
Lucas.
In Christy u. Reynolds, 16 Serg. &

Rawle, 258, and Tod v. Gallagher,
Id. 261, the
incumbrances were cov-
ered by the covenants.
In Poke
v.
Kelly, 13 Id. 165, no deed seems to

have been executed ; and if there
must under the terms of

the contract have contained a general
warranty. In Withers v. Atkinson, 1
Watts, 236, the purchaser was ignorant of the incumbrances, relying on
were one,
it
contradictory, the question as to

the vendor's statement that
" there
was not a judgment against him

"
the
under the canopy of heaven
;
incumbrances, moreover, in that case

were all removed by the vendor be-
The
fore the trial.

ter's
Exrs.
u.
late case of Fors-
Gillam,
turned upon
the vendor.
Harris, 340,
misrepresentation by
There was a defect
and Burnside, J., who had

Court in Wolbert v. Lucas, said, "
of
title,
also
special warranty does not prevent a

vendee from setting up a defence to
the unpaid portion of the purchasemoney, and in such a case the onus
lies
on the vendor
at his
own
risk."
to
show he bought
This,
it is
apprehended, he can in general do, by
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 purchaser the burden of proving that In'
did not intend to run the risk of the
title.

the terms of the contract
is
not to be
the jury as a
left to
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
The
decision
so.
must, therefore, be put upon the ground

title and an in-
that a distinction exists between a defect of
and
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
cumbrance
would seem, be applied

in which
irrespectively of the terms
principles must,
contract,
as, in
it
an executed
to
it is
expressed ;
while
the
contract
is exright,
with
to
known
defects
of
respect
ecutory, applies equally
and although the purchaser's
title
and incumbrances, yet that the former, being insuscept-
of definite valuation, are not thus to be presumed to

1
have been excepted from the consideration.
ible
Such a
distinction
taken by the Court.

like the
much
was expressly
" This
case of Lighty
relied on.
v.
is
not
Shorb, so
There the defect
was on the face of the title, purchased by the defendant, and the maxim
of caveat emplor entered.
Equity
would not interfere, because it
would have been changing the terms
of the bargain.
This case
is
very
Here, the plaintiff sold

one third of the premises for the consideration of $3,000, the price he
different.
asked for the estate, and for which

she gave her mortgage." It ought to
be distinctly observed that in Lighty

Shorb, the defect was covered by
the covenants.
See infra, p. 736.
v.
seems impossible that the decision of the Court in Wolbert v. Lucas,

It
could in any
way have proceeded
upon the ground
that the considera-
tion
named
in the
sive evidence of
deed was conclu-
amount, as such is
neither the law of Pennsylvania, nor
does
it
its
generally prevail in
this
coun-
See the cases cited supra, p. 65.

The case of Ross's Appeal, 9 Barr,
491, which was decided but a few
weeks before Wolbert v. Lucas, may
try.
also
be referred to in
this
connection,
Patterson having agreed to purchase

a tract of land, entered upon it and
partially built a furnace.
wards agreed
to
He
after-'
to transfer his interest
Lyman, who was
to succeed to all
his liabilities for the
purchase-money,
and who subsequently, by a verbal
arrangement, transferred to Marshall
&
Kellog
the fixtures.
&
the land,
of sale to them of
all his interest in
and made a
bill
Lyman and
Marshall
Kellog, both having subsequently

made assignments for benefit of cred-
THE PURCHASER
732
RIGHT
however, been very recently decided, upon great

apparent soundness of principle, that the doctrine of this
It has,
case will not apply where the security for the

purchase-money
upon which the suit is brought, is given by the purchaser
after
he acquires notice of the existence of the incumbrance. 1

the
itors,
assignee
of the
former
not
suffered
by
him, any more than for a defect of

title ?
The very character of the
the ground that there were judg-
agreement repels such an idea, as is

shown authoritatively in Smith v. Sil-
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 &
knew of these judgments and
Kellog
who advised they
consulted counsel,
were not
liens
and Mr. Justice Bell
who

Court said, " Marshall means that at
the time of their contract with Lyman, his firm had notice of the judgments recovered against Patterson,
but not deeming them to be liens on
the land, he disregarded them. It is
obvious from this, that neither of the
imagined that Lyman had

engaged to warrant his vendee's title,
parties
either to the
Marshall
cide
for
land or the fixtures.
&
Kellog undertook to dethemselves whether the
judgments were or were not incumbrances; and never dreamed of lookguarantee them
lyman, 3 Wharton, 598. In that case,

where there was a similar arrangement, it is truly said that the presumption is irresistible, in the absence of express stipulation, that the
vendee relied on
drances not created by the
See Smith
It
may
so.
The
case presents
the uncontradicted fact that Marshall
and Kellog were to take the place of

Lyman. As already said, Lyman
intended to do nothing more than to
tran.-fer to them his interest, whatever
it
was, in the contract.
then, should he be
Why,
made answerable
v.
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

" From a
series of
law has become a series of
a recent case
more to
would an
have been
latter."
Sillyman, infra, p. 736.

be difficult to reconcile some
nature of the transaction shows this

to
own judgment
title.
The
same presumption is applicable to an
incumbrance.
Such an agreement
amounts to a declaration by the
vendee, that he takes the property
just as his vendor received and held
it, and subject to all defects or hin-
Lyman
ing
against a mistake in this particular.
But apart from the direct proof, the
to
his
as to the soundness of the
cases, the
to
'
incumbrances
for
claimed a dividend out of the estate

of the latter, which was resisted on
principles
mony
and
to
in har-
and certainty, than

implicit obedience in every
"
safety
case to precedent
8 Barr, 55.
1
keep them
with each other will conduce
Good
v.
Mylin,
Lukens
y. Jones, decided
by the
Court of Philadelphia CounDecember, 1859, 17 Legal In-
District
ty in
trlliguneer, 36.
"
The action in this

who delivm-<l
case," said Hare, J.,
763
Third. While, on the one hand, the absence of a covenant, including a defect of which the purchaser has notice,
the opinion, " was on a note given
the
for the purchase-money of land
opposite doctrine, that knowledge of

an incumbrance at the time of re-
defence, an outstanding ground-rent,

alleged, and so far as the testimony
bee"n purchased,
of the witnesses examined for the
defendant went, proved not to have

been known at the time of the purchase. The defendant requested the
ceiving a deed for land which has
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
we
If
money.
purchaselook at the decision
Judge before whom the cause was
in that case, apart
jury that the

verdict must be for the defendant, in
consequence of this defect of title.
This request was granted, but with
of the Judge
the proviso, that the jury might look

at the note which had been given for
right in the position that notice of

an incumbrance at the time of buy-
to instruct the
tried,
purchase-money, and take
the
its
was subsequent to the

which the knowledge of
date, which
period at
the ground-rent
into
ant,
their verdict
now
came
to the
consideration
;
before us
defend-
in
finding
and the only question

is, whether there was
error in the instruction thus given.

"
Looking at the matter on principle,
would
and apart from precedent, it

seem very obvious that a
promise by a purchaser to pay a

sum certain, after a defect in or
charge
upon the thing
purchased
evidence
brought to his notice, is

that he bought subject to the defect, or had no right to set it up as
a reason for not
fulfilling his
prom-
ion,
we
from the language
who
delivered the opinshall find that the only point
actually before the Supreme Court

was, whether the Court below were
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 purmay be regarded as having,
chaser,
more or less, the character of a dictum. But even if this be not so, and
if Wolbert v. Lucas is to be regarded
as establishing the general proposition that a man who agrees to give
$10,000 for a house, and consummates the agreement by accepting a

deed, with full knowledge that he is
buying
it
subject
to,,
a mortgage for
$8,000, can afterwards plead the

mortgage as a defence to a suit for
distinguished
the purchase-money, it can only be

because the law will, under these
from absolute proof, and mean to

speak of it as that which, though
far from conclusive, cannot be with-
circumstances, imply a promise by

the vendor to pay off or satisfy the
mortgage within a reasonable period,
drawn without error from the con-
and consequently, regards the ven-
ise.
In speaking of
use
the
word
it
as
as evidence,
It
sideration of the jury.
ever, said that the case of
v.
howWolbert
is,
Lucas, 10 Barr, 73, establishes the

62
dee as entitled to treat

existence
which
may
its
continued
of contract,
be set up by way of re-
as a breach
THE PURCHASER
734
RIGHT
presumption that he intended to run the risk of it,

on the other, where the purchaser has notice of either a
raises a
so,
Seen in
extreme position assumed in Wolbert v. Lucas may be
ciare juri pro se introducto. It is, indeed, said in Summerville v. Jackson,
with logic, if not with

but it ceases to be applica-
an exception to the operation of this

principle, and cannot be cured, nor
ble to a case like the present, where

the note was given for the whole
the right of avoidance given by it

waived or extinguished by any sub-
after
amount of the purchase-money long

the sale, and consequently,
sequent act or agreement on the part

of the party defrauded. How this is
tended to negative the idea that the

purchaser was entitled to rely on
to be reconciled with the proposition,

of which the books are full, that sales
the failure of the seller to extinguish

the incumbrance as a default, or as
not void
coupment or
defalcation.
this aspect, the
reconciled
reason
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 evidence that the promisor believed
and might, therefore, reasonably be presumed by others, to

be without right to rely on the de-
himself,
fect as
a reason for not performing

is another
ground
his promise, there
on which such a promise cannot be

withheld from the jury, without error, at all events,
when
it
is,
as in
the present instance, put in the form

of a promissory note payable in futuro,
it
and consequently,
new
carries with
consideration, in the shape
of a postponement of the antecedent
For nothing
liability.
eral
rule,
is,
better settled
as a genthan that
every ground of defence or objection

to the performance of a contract, is
dominion of the party
within
the
who
entitled to
make
and may
be released or abandoned by him at
is
it,
pleasure, in obedience to the well-
known maxim,
quisquis potest renun-
Harris, 359, that actual fraud forms
vitiated
by fraud are voidable

;
only,
that the fraud cannot be
up as against an innocent purchaser, nor even as between the orig-
set
parties without restoring the

consideration and that no grossness
inal
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
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
for
seal or accepting satisfaction in pais.
For the case now before us
is
not a
case of fraud, but of failure of consideration, and the cases of Duncan
McCullough, 4 Serg.
485, and Chamberlain v.
v.
&
Rawle,
McLurg, 8
Watts & Serg. 36, expressly distinguish between such cases, and those
where the fraud is actual, and hold
that
the former
may be
confinm-d
subsequently, whatever may bi> the

rule with regard to the latter.
The
objection that the waiver was withnew consideration has al-
out any

defect or incumbrance,
cludes
it,
the
and there
presumption
is
a covenant which in-
that the
arises
<J35
covenant was
expressly taken for protection against it, and the purchasemoney cannot be detained unless the covenant has been
other words, as has been clearly stated, <c the
purchaser shall be bound to perform his engagement wherever his knowledge and the state of facts continue to be the
broken
in
same as they were at the time of the conveyance"

where 2 the plaintiff had conveyed to the defendant a
Thus,
tract of
land devised to him by his father, with a covenant of warranty against each and all the heirs of the father and all
other persons, the purchaser, in an action against him for
the purchase-money, set up as a defence that the land was
subject to certain legacies charged upon it by the father of
the vendor, and requested the Court to charge that if the
jury believed these legacies were unpaid, he was entitled to
a deduction for the amount of them
but the Court charged
where the incumbrances, with all the circumstances

attending them, were known both by vendor and vendee,
that
and the
took from the former a deed warranting particularly against those incumbrances, it was no defence to
payment of the purchase-money to say that the incumbrance
was
still
latter
subsisting
and the Court
determine whether
left
knew
both
it
to
the jury to
of these
parties
legacies
the
and
whether
circumstances
had
land,
charged upon
any
occurred rendering the situation of the defendant more perilous than at the time of giving his bonds for the
purchaseready been answered, and the result
of the whole is, that the rule which
has been granted for a new trial
must be discharged."
l Per
Gibson, Ch. J., in Lighty v.
Shorb, 3 Penn. R. 447 which was
;
said in the recent case of

v.
Richardson, 4
Murphy
Casey, (28 Penn.
State R.) 293, to be ".the best sumof the cases that has been
inary
"
and see Horback v. Gray,,

given
8 Watts, 497, and the remarks of
Kennedy, J., in Ives v. Niles, 5
;
Watts, 328.
2
Fuhrman
Rawle, 386.
r.
Loudon, 13 Serg.
&
THE PURCHASER
736
money, and
been
perfectly
showed
correct.
that the
who
title
So
Supreme Court held

a
in
was
to the land
case
have
to
where a
recital
in the wife of the
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
patentee,
this direction the
RIGHT
the
title,
after her
which bond was handed
when he
to the defendant
purchased and took a deed with general warranty, it was

3
held that it was impossible to doubt that the mutual understanding was that the purchase-money was not to be detained as a security for the
So
Strohecker
v. Housel, 5
Journ. 327, Lewis, J.,
(afterwards Chief Justice of the Su-
Perm.
in
Law
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
of entry arising to Garber's

virtue of that eviction, and
believe farther, that nothing has ocright
heirs
by
curred since the purchase to render

the condition of Housel more perilous than
it
was before and
at the
time he purchased, then his defence

is not sustained upon
equitable principles."
2
title.
So, where, in a recent
stand with the contract So, in Smith

Sillyman, 3 Wharton, 589, a vendor
v.
entered into articles to
sell
certain
land to one
articles
to the
who assigned the

plaintiff, who entered
into ar-
with the defendants, in which

was provided that the first payment
ticles
it
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 general warranty, by the original vendor
to one of the defendants, who, it was
held could not in an action brought

plaintiff' to recover the pur-
by the
chase
money due him, set up
trary,
4 It was
said, moreover, that the
mercantile character of the security
warrant the
firm, at twenty-two days, sufficiently

attested that nothing but punctual and
prompt payment was considered to
title
" From the

ejectment.
very nature
of the agreement, in the absence of
Lighty v. Shorb, 3 Penn. R. 447.

3 In the
absence, it is presumed,
of evidence to the contrary.
given for the purchase-money, a draft

of one of the partner vendees in the
as a de-
was defective, in
consequence of which they failed in
an attempt to recover the land by
fence that the
any express stipulation to the conit would seem that the vendor
(of the articles) did not intend to
title to the
premises, but
that the vendees took the risk,
ly-
ing on their own judgment as to the

soundness of the title and for indrmnity
this
on the
original vendor.
was the understanding,
is
That
furtlu-r
vendee accepted a conveyance which referred, by

a trust deed, giving- its date and record, it was
case, the
787
recital, to
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
have protected himself against
to
the covenant for quiet enjoyment.

So, where it
the
that
the
on
defendant,
making
purchase, was
appeared
them by
informed of an outstanding claim, and then took a deed

with general warranty, it was held that his remedy, if disturbed,
must be upon
his covenant,
and that he could not
detain the purchase-money.

So, in a recent case,
said that a vendee who takes a covenant against a
defect in the
title
would be nugatory
if
it
was
known
purchase-money as a
shall not detain the
further security against
for the reason that the covenant
it,
he did. 4
shown from the agreement and the
on the covenant against the original
conduct of the
vendor."
It is
expressly agreed (and the security of the

vendees is said to be the object), that
the
first
parties.
payment
shall not
be made
vendees are fully satisfied

as to the title to the land. This shows
until the
that for this purpose they

on their own judgment.
depended
When
the
established to their satis-
title is fully
faction (for so I read the contract),

the vendees bind themselves to take
the deed.
By
sonable time
the
title
the agreement, a rea-
allowed to investigate
for themselves. Until then a
defect of
is
title
would undoubtedly be
a good defence; but after having

it
examined
cepted the
for themselves,
and
ac-
they are foreclosed

from taking any defence, on the
ground of a failure of consideration,
title,
so far as the present plaintiff
cerned.
This construction
is
is
con-
neces-
sary for the protection of the plaintiffs,
as they
would have no remedy
G2*
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 v.
Potts, 9 Barr, 37.
3 Juvenal v.
Jackson, 2 Harris, (14
4
In Share
v.
Anderson's Ex'rs,
&
Rawle, 43, the vendor's title

was subject to a charge in favor of
Serg.
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,

incumbranccs, &c., 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 defendant set up (besides an allega-
738
actually broken at the

time of the suit brought to recover the purchase-money, the
Where, however,
the covenant
is
on the general principles already referred to, 1

for the purpose of preventing circuity of action, be entitled
will,
purchaser
to detain the
purchase-money to the extent
to
which he
would be at that time entitled to recover damages upon the

2
covenant, and he is not in such case obliged to restore the
before or at the time of availing
possession to his vendor,
3
himself of such a defence.
But when
the purchaser's covenant is not thus actually

in other words, when he seeks to resist the pay-
broken,
ment of the purchase-money upon the Pennsylvania equitable doctrine which we have been considering, it has been
held that in cases where that purchase-money is secured by a
mortgage of the premises in question, upon which the vendor
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
charges and a quit- rent, which he

contended had prevented him from
obreselling, which was the special
tell v.
Under the
his purchase.
charge of the Court, whose judgment
was affirmed on error, the jury made
a deduction for the amount of the
ject of
outstanding charges, and also such

arrearages of quit-rent as should be
"
These, as being a present charge, were properly a subject

of defence, on the same ground as
then due.
v.
Niles, 5 Watts,
v.
Spencer,
Buckley was
323
6 Barr, 257.
said
PoynMorris
by the Court
to
come within the

hauer
v.
principle of SteinWitman, but the case would
probably have been similarly decided

in any court, as the deed contained
a general warranty, and the purchaser had never been able to get
the possession which is in general
held to be a constructive eviction,
So
supra, p. 251.
in
Poyntell
v.
the liens created by the proceedings

in the Orphans' Court were allowed,
Spencer, supra, the purchaser had,

to prevent an actual eviction, t^ken
a lease under the paramount title,
but the vendee could not retain to
which had been
meet charges accruing afterwards."
judgment, of which his vendor, who

had sold with general warranty, had
Supra,
Morris
p.
v.
672
et
seq.
Buckley,
1 1
Serg.
&
Kawle, 158 Christy v. Reynolds, 16

Todd r. Gallagher, Id. 261
Id. 258
;
established
by a
notice.
3
Poyntcll
v.
Spencer, 6 Barr, 256.
739
pay the purchase-money or restore the possession to

1
And it is apprethe person from whom he received it.
either
hended that
this result
would not be
affected
hy the
fact that
the purchaser had already paid a portion of the considerationmoney, for it will he rememhered that as respects so much
of the purchase-money as has been already paid, the law

2
there is
of Pennsylvania is the same as it is elsewhere,
merely a locus penitentice as to so
much
as
is
unpaid.
Such
a course of decision would not, however, apply either in

was actually broken, or where the
cases where the covenant
1
Hersey v. Turbett, 3 Casey, (27
Penn. State R.) 424; "The de-
fence," said Lewis, Ch. J.,
who
de-
opinion, rests upon a

defect in the title to the premises
the
livered
which
will
The
be noticed hereafter.
general rule is that whenever a defendant enters into possession of land
If neither ven1705,
8, 1 Sm. 61.
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 equitable circumstances might exist which

would call for the application of the
under a contract with the plaintiff

for the purchase of it, he will not be
that a title subsequently

acquired by a vendor enures to the
This princibenefit of the vendee.
permitted to set up an independent

title to protect a hostile possession.
of
He
must either pay the purchase-
the possession to
the person from whom he received it.
.
This principle applies with pecu.
money
or restore
an action in which the

makes no personal demand
liar force in
plaintiiF
upon the defendant, but merely asks,

in default of payment of the consideration money, the restoration of the
property conveyed.
on a mortgage
character.
It
ma.nd on the mortgagor.
even
scire facias
an action of this
makes no personal deis
liable for the
The judgment
is
He
is
not
costs of the suit,
de term.
It is
to
principle
ple might apply in the case of a loan

money obtained on the faith of a
representation that the mortgagor had

an indefeasible estate in the premises
granted in mortgage as a security

But it can have no
for the money.
place where the mortgage is given
merely as security for the purchasemoney, to be paid for the premises
The purchaser
mortgaged.
sheriff's sale
at the
under such a mortgage
gets no better or other estate than

the mortgagor had in the premises at
the execution
of the
mortgage.
It
would therefore be unjust as a general rule, to involve the mortgagee in

a dispute about the
title,
in
a pro-
be levied exclusively on the mortgaged premises, and the sale conveys

" no further term or
estate to the
ceeding which only gives him or the

purchaser under his judgment a right
purchaser than the lands shall appear

"
to be mortgaged for ;
see act of
for the land."
to try the title in

2
Supra,
a subsequent action
p. 706.
74-0
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 groundrent, instead of
a gross sum. 1
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

" the continuance of the
rent, and the payment of it,
said,
the
right of the grantee to the future
depend entirely upon
enjoyment of the land under the
title
conveyed to him by
the grantor, to whom and whose assigns the rent is to be

2
3
paid," and as has been recently said, "a sale on groundrent differs from an ordinary sale only in this, that the con-
sum perpetually charged

sum paid or secured, as in
sideration in the first is an annual
on the land, instead of a gross

the second."
In the class of cases
incumbrance
lastly referred to, viz.,
where the
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
defect or
can,
principles, detain the
upon general
the extent of the
damages
The number of reported
to this,
Brown
is, it
v.
will
is
to
cases as
be seen, very small.
Dickerson,
which he would be then
'1
R.) 519, the question turned principally upon whether the purchaser
was entitled to the defence at all, as
enti-
was
also the case in Spear v. Allison,

3
Jones, (12
Penn. State R.) 372, supra, p. 271,

seems to have been an action on the
covenants for title. In Juvenal v.
Jackson,
Harris, (14 Penn. State
purchase-money to
Franciseus
116, per
Ingersoll
to
v.
Reigart, 4 Watts,
J., and see also
Kennedy,
v.
Sergeant,
AVharton, 357,
which the student may be referred
as to the nature
of ground-rents in
Pennsylvania.
3 In Juvenal
Jackson, supra, per
Gibson, Ch. J.
v.

tied if
he were suing as
for a breach of the cove-
plaintiff
is a
Where,
ground-rent,
the amount of these damages would probably, in most cases,
exceed that of the annual rent, and under these circum-
however, the consideration
nants.
apprehended that unless the defect of title or

incumbrance went so far as totally to defeat the entire estate
stances
it
is
conveyed, the defendant would be entitled, under the Penn1

sylvania statute of set-off, to a certificate in his favor for
damages over the amount of groundrent claimed by the plaintiff'.

Where, however, the defect
of title or incumbrance had totally defeated the entire estate,
the excess of these
conceived that such a result would simply work a comThese results,

plete extinguishment of the ground-rent.
it is
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. 2
Where, however, such is not the case, and the defence is,
under the Pennsylvania decisions which have just been
3
an equitable one, resting upon failure of consideraalthough there can be no certificate found in favor of
quoted,
tion,
the defendant, yet he will,

1
The
it is
of 1 705, Dunlop's
Purdon's Dig. 237.
2
Thus, in the case of Garrison v.
Moore, in the District Court of Philstatute
Digest, 56
adelphia County (January, 1852, re-
apprehended, be entitled to
under the grantor.
Purchase-money
cannot be recovered back for defect

in the
title,
or warranty.
unless there
was fraud
The same
principles
which govern an action must apply

to a set-off, and as neither fraud nor
ported 9 Legal Intelligencer, 2), one

of the defendant's pleas "
warranty
had been obliged to pay a

large sum of money for the prior and
tained in the plea cannot be available to the defendant as a set-off to
better
the plaintiff's claim in this action."

See also the distinction between a
alleged
that he
title,
as well as the costs of the
ejectment," which was held bad on

" there
demurrer, for the Court said
was here no covenant of general

warranty nor for quiet enjoyment
except as against persons claiming
cross
ation,
is
alleged, the matter con-
demand and
failure of consider-
noticed in
Watts, 572; infra,

3
Supra,
p. 709.
Good
v.
p. 742.
Good, 9
THE PURCHASER
RIGHT
defend himself from payment of the ground-rent, within

the limits defined in the classes of cases heretofore referred
to
on
this subject,
"
mains.
If," said
so long as the defect or incumhrance re"

Kennedy, J., the grantor of the land,
his heirs or assigns, be evicted
and deprived of the enjoyone

by any
having a title paramount, the
2
and
becomes
ceases
rent
extinct."
So, where there is an
eviction of a specific part of the premises, the rent will be
ment of
the land
apportioned pro
moved
tanto.
And
if
purchaser have re-
the
the defect or incumbrance, or be otherwise entitled
to the equitable defence referred to,
would be
it is
conceived that he
entitled to detain the

ground-rent for
successive
until its arrearages should be

equal to the
years,
amount of
his loss.
1
Supra, p. 715.
Franciscus v. Reigart, supra, p.
740.
3 Garrison v.
Moore, supra.
"
We
" that
are of opinion," said the Court,
the second plea, of an eviction by
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
Good
this,
the case
Good, 9 Watts, 567, explained in 3 Watts & Sergeant, 472.

The purchase-money was there seof
v.
cured by seven bonds and a promissory note. In an action on the first

of the bonds, the purchaser established a failure of consideration as to
part of the land, and also claimed a

set-off for services rendered to the
an extent exceeding the

amount of the bond, and the jury
found a general verdict for him. In
a subsequent action on another of
vendor
to
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
suit, and the grounds on
was based, was a bar to the
allowance of the same defence in a
subsequent suit, but the Court belowdecided otherwise, and the jury
found for the defendant, and certified that there was due him from the
plaintiff $2,500, over and aboye the
amount claimed by the latter. The
the previous
which
it
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
" who must bo
by the former jury,
deemed to have sustained the bond
in the first instance, holding it to be
satisfied by the set-off and no more.
As
to
mand,
what was properly
cross de-
therefore, the defendant
concluded
but
we must be
was
careful
to distinguish it from what was properly failure of consideration. As a

ground of demand, the one is legal
743
to repeat that the

preperhaps, hardly necessary
in Pennsylvania must, with the exception of
cases
ceding"
this last class, be regarded as exclusively local in their apIt
is,
plication.
and independent of the

cause of action
ble,
inherent in
the other
all
the
plaintiff's
is
equita-
securities
founded on the same consideration,
and therefore applicable to successive actions on any of them, till the

defendant is compensated by defalcation to the extent of the loss.
this instance the
In
defendant claimed
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
Judge who
effort
the
delivered
of the
former
opinion was "merely to distinguish

between the remedy for want of con-
and the remedy
for cross
the promise of his compensation for
sideration,
personal services and damages, for a

breach of a covenant that a particu-
demand
not to establish a principle

of apportionment, in a case involv-
dower in the land had

been released, and they were settled
in the previous action at what they
were worth. But for failure of consideration the defendant is entitled,
ing the latter, between distinct securities for different parts of the origi-
on the whole, to a deduction equal to

the average value of the acres lost,
which
determined by the price originally

and he is entitled to
stipulated,
attained by defalcation
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
a certificate of balance where the
lar estate of
proper application of
these remarks, the failure of consid-
that
in
the
The
nal debt.
it.
It
consideration
ties
amount
to
sum sued
all
defence
the securi-
compensation for
full
it is,
furnishes
inherent in
is
till
deed,
case did not call for
was indeed said that want of
and
it
be
so, in-
so far as to dispense with
be defalcated exceeds the
for.
The
principle of
pro rata distribution of defalcation

for failure
of consideration
among
the securities, is one which this

Court did not mean to establish."
all
INDEX
Page
ABSTRACTS OF TITLE,
....
incumbrances excepted from covenants,
how
noticed
in,
ACCORD AND SATISFACTION,

when
a bar to action on covenants,
132
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,
purchase-money,
413
to
435
to detain
by allowing purchaser
.
638, 639
164 to 181
ACTS,
what a breach of covenant for quiet enjoyment,
what may be required under covenant for further
assur-
186 to 190
ance,
And
see
FURTHER ASSURANCE.
construction of words acts and means,
ACTUAL SEIZIN. See SEIZIN.

ADVERSE POSSESSION,
when a breach
....
172
of the covenant for seizin, 24, 25, 45 to 49

of, with the Champerty
connection of doctrine
35 to 38
Acts,
ADVERSE
SUIT,
notice
not necessary to be given to cove-
of,
237, 238
nantor,
And
see
NOTICE.
AFTER-ACQUIRED ESTATE,
notice
of,
when
it
will
deprive purchaser of his
remedy upon covenants

effect of
for
title,
covenant of warranty in passing,
And
63
see
ESTOPPEL.
38 to 44
402 to 457
INDEX.
AGENT,
when
act of,
power of
......
the act of the covenantor, within the cove-
nants of the
latter,
sale by, implies
power
to give
168
proper cove-
570
nants,
ANCESTORS. See VENDOR.

APPOINTMENT,
power
of,
how dower
formerly barred in
England by,
consistent with a fee,
105, 106
128
89 to 93
APPORTIONMENT,
of damages,
And
when breach
see
partial,
DAMAGES.
ARREARS OF RENT,
when breach
And
ARTICLES,
see
of covenant for quiet enjoyment, 172, 173
GROUND-RENT and PURCHASE-MONEY.
right of purchaser, while contract rests under,
549, 562, 611,612
ARTIFICIAL WATERCOURSE,
breach of covenant against incumbrances,
113, 114
ASSETS,
what
587 to 599
are,
heir only responsible to amount of,

on the old warranty,
upon the covenants

effect of assets in
administration
....
for title,
another State,
394
395, 587
586
of,
right of covenantee to
a specialty creditor,
specific
when
come
.
upon
.
assets as
.
588
performance of covenants decreed,

158 to 161
incidental to,
marshalling, as between purchasers,
covenants for
in
.
title,
how
affected
by
286,574,575
ASSIGNMENT,
vendor claiming under voluntary, what covenants demandable from,
....
specific
553
performance of covenants contained in
.
.
.
160 to 162
voluntary, when decreed, .
of lease, no covenants arising by implication
*
from, .
477, 478
ASSIGNEE,
liability of,
in
conveyance of leasehold, covenants binding on assignee of reversion,
...
601
INDEX.
747
ASSIGNEE,
of covenant for title,
right of, to benefit
on covenants for seizin, right to convey,
and against incumbrances,

336
to 352,
369 to 382, 607 to 609
enjoyment, further assurance,
for quiet
and of warranty,
And
see
they
352 to 356, 369 to 382, 607 to 609

extent to which
COVENANTS FOR TITLE,
.....
run with land.

on implied warranty,
470, 610
ASSIGNEES,
for creditors,
what covenants demandable from,
565
640
ASSUMPSIT,
ASSURANCE.
ATTORNEY,
not maintainable to reclaim purchase-money,

See FURTHER ASSURANCE.
when
responsible for improper omission or inser-
549
tion of covenants,
ATTORNMENT,
when forbidden by Stat. 11 Geo.
And see TENANT.
II.,
264
AVERAGE VALUE,
of land,
when
to
be taken in estimating
90 to 93
damages,
BANKRUPT,
usually joins with assignee in conveyance of his
567
567
567
estate,
reason for
assignees
this,
of,
BANKRUPTCY,
when a bar
to recovery
on covenants for
title,
577
BARGAIN AND SALE,

deeds
of,
usual in United States,
statute -De, effect of,
....
BIGAMIS,
upon warranty,
18
2,
BOND,
performance of covenants,
reasons for and use of in England,
for
heir,
when
liable
on bond of ancestor.
590,591
.
591
See HEIR.
BOROUGH ENGLISH,
warranty by ancestor did not descend upon
heir by custom of,
except by way of rebutter,
BREACH,
what amounts
covenants.
to.
See the several particular express
11,398
398, 399
INDEX.
74*8
BREACH,
assignment
of,
on covenant for
52
to
54
seizin,
good right
to convey,
52 to 54, 107, 108
125
182, 184
for further assurance,
of warranty,
197, 198
308 to 311
BUILDING COVENANTS,
damages recovered on covenants, for
title sold or
conveyance with,
325
BURDEN OF PROOF,
where
it lies
in suit
on covenant
for seizin,
55 to 57
125

for further assurance,
183
of warranty,
BY, FROM,
198
308
to
311
OR UNDER,
construction of these words in limited covenants,
174, 175
CAVEAT EMPTOR,
rule
CESTUI QUE
of,
And
TRUSTS,
how
see
far applicable,
611, 616 to 633
PURCHASER.
when bound
to
covenant for the
test of application of rule,
title,
567
to
569
568
CHAMPERTY,
what
32 to 37
is,
doctrine
of,
how connected
with that of actual
30 to 45
seizin,
effect of statutes of,
upon covenants
CHOSES IN ACTION,
for title,
38 to 45
....
not assignable at law,

334
when covenants for title are turned into, 837 to 347
See COVENANTS FOR TITLE, extent to which
they
run with land.
COLLATERAL WARRANTY.
COMMENDATIONS,
See
WARRANTY.
of estate by vendor,
how
far allowable,
623
CONCEALMENT,
by purchaser, how
by vendor,
far allowable,
627
626, 627
CONSIDERATION-MONEY,
the ultimate measure of
damages on the covenant

57, 58
for seizin,
and against incumbrances,
138 to 141
INDEX.
74*9
CONSIDERATION-MONEY,
clause as
to,
may be
to affect the
explained by parol, in order

damages,
...
....
but not to defeat the conveyance,

or to create a resulting trust,
right of purchaser to detain.
65 to 69
66
462
to
483
PURCHASE-
See
MONEY.
CONSTRUCTIVE EVICTION.
CONTINGENT LIABILITY,
See EVICTION.
when a breach
of covenant
.
executor, not bound to retain
assets to
meet
future,
113
601
CONVEYANCE,
rights of
vendor and purchaser, how affected

611 to 614
by,
COPARCENERS,
implied warranty in partition between,
must join in actions of covenant,
.
471 to 473
606
COSTS,
of defending covenantor's title recoverable,
.
counsel fees and other expenses, how far in.
cluded,
notice to covenantor not necessary to recovery
except as to reasonableness of amount,
98
98 to 103
of,
.
99
99
COUNSEL,
draft of further assurance submitted to,
fees of, when recoverable,
COVENANT TO STAND SEIZED TO
196
98 to 103
USES,
vested estate necessary to validity
of,
439 to 441
COVENANTEE,
equitable jurisdiction,
half of,
how affected by
when
exercised on be-
lapse of time,
under
155 to 162, 191, 192

602, 603
.
statute as to decedent's
estates,
594, 595
.
603 to 606
rights of, whether joint or several,
And see COVENANTS FOR TITLE, extent to which
.
they
run with land.
COVENANTOR,
liability of,
when
material in administration
of assets,
when joint
574
or several, .
.
.
578
equitable jurisdiction, when exercised on behalf of,
581 to 586
63*
INDEX.
COVENANTS FOR
TITLE,
introduction
their
.......
...
.
of,
number,
1,
11
11
....
12
49
extent to which they run with land,

common-law rule as to choses in action,
how modified when covenants concern
334
elaborately expressed in England,

rules as to their construction,
....
the realty,
distinction
in equity,
between their benefit
334, 335
376
and
334, 335
their burden,
all
covenants for
run with the land
title
336
until breach,
but covenants for seizin, right to convey, and against incumbrances, held
in United States to be broken as soon
as
made,
contrary doctrine in England,
and
in Indiana,
.
.
statutory provision in Maine,
.
.
doctrine in Ohio and Missouri,
reasons on which American cases are
336
337 to 339
339
343
339, 340
347 to 352
based,
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-
352
414
.
ning with land, denied in Maine,
benefit of covenants for title vests
how
in successive owners,
Mr.
Preston's
their divisibility,
life
and remainder-man,
rights of
354
354
between tenant
limitations to the doctrine,
for
355
856 to 359
an intermediate cove-
nantee,
conveyance of the land carries with
the
covenants for
with
352, 353
against
Sir E. Sugden's, contra,

divisibility of,
opinion
title
which
357, 358
it
run
360
it,
whether by voluntary or involun*
352
.
.
.
tary alienation,
application to the case of a mort-
gage,
360
to
366
INDEX.
COVENANTS FOR
TITLE,

covenants will not at law run
with equity of redemption
in
England,
nor in Kentucky,
.
365
361
general contrary doctrine in
United States,
mortgagor,
how
...
362
....
relieved in
365, 366
equity,
of
not
affected
land,
by
equities
assignee
369 to 371
.
as to the covenants,
369 to 373
release and discharge of covenants,
.
release
by covenantee,
veyance, of no effect,
but
if
made
after con-
369
while
still
the
owner, will bind as between covenantor and

covenantee,
how may be made by

in
United
States,
368, 369
parol
369
369
contra, in England,
at law, will bind subse-
quent purchaser,
whether within the
try acts,
371, 379
regis.
372, 373
but conveyance of land does not carry

the covenants which are broken as
.....
soon as made,
effect of doctrine,
374
374 to 376
susceptibility of modification, with
respect to covenants for seizin

and right to convey, by allow-
ing purchaser to sue in

of covenantee,
.
.
name
.
377
to
380
as to covenant against in-
cumbrances,
378, 379
rights of assignee of covenant for further

.
.
.
assurance, .
of assignee of covenant of non.
rights
claim,
.....
of covenants
affected
382
how
generally,
by want of
381, 382
estate to
.
382 to 393
support the covenant,
effect of doctrine under mod.
ern conveyancing,
384, 385
INDEX.
75%
COVENANTS FOR
TITLE,

not relieved by operation of
.
estoppel,
how
doctrine,
modified in
New
York and Massachusetts,

operation of, by way of estoppel or rebutter.
See ESTOPPEL.
386
388 to 393
how limited or restrained, by other covenants,

when preceding restrictive words ex-
....
.
.
492 to 511
all the covenants,
501 to 511
exceptions,
subsequent limited covenant will
tend to
when
not restrain preceding general one, 512 to 517
when preceding general covenant
will
518, 519
not enlarge subsequent limited one,

when restrictive words do not operate,
the covenants being of different na-
519
tures,
by express agreement,
521 to 523
jurisdiction of equity in reforming cov-
129, 522, 523
enants,
by
descriptive context,
exceptions,
what covenants a purchaser has a

of,
in marshalling of
....
assets,
liabilities
right to
See
expect.
presence
VENDOR.
when material
523 to 529
529 to 533
of covenantor,
married women,
heir,
574
576
574
578 to 580
433, 434
to
594 to 599
devisee,
executor or administrator,
592, 599 to 600
assignee,
....
rights of covenantee,
heir and devisee,
executor or administrator,
601
602 to 606
607 to 609
609
610
assignee,
purchaser's right to detain or reclaim purchase-
money, depends upon presence

and several,
of,
613, 614
603 to 606
joint
as to liability of covenantors,
rights of covenantees,
See
578
FURTHER ASSUR-
ANCE.
for right to convey.
See
RIGHT TO CONVEY.
INDEX.

See INCUMBRANCES.
against incumbrances.
See NON-CLAIM.
of non-claim.
See SEIZIN.
of warranty.
CUSTOMARY
QUIET ENJOYMENT.
See

for seizin.
See
WARRANTY.
HEIR,
warranty of ancestor did not bind,
11,398
399
DAMAGES,
measure
of,
on the ancient warranty,

on covenants for seizin and right
.
ultimate extent
money and
is
to
2, 58,
59
convey,
the consideration-
interest,
......
.....
58 to 63
evidence admissible to explain consideration,
65
improvements or increased value not

recoverable,
limited by amount paid to purchase the
valid title,
58, 63
71
but plaintiff must affirmatively

show this amount to be reasonable,
....
....
refusal to purchase,
recovery,
how
no bar
regulated when purchaser

undisturbed possession,
.
71
to
still
71
in
73 to 80
if possession
ripened into valid

title, only nominal damages,
recovery of nominal damages a
bar to a subsequent action,
unless
where
74
75
covenant
....
treated as a continuing
one,
75
recovery of substantial damages,
how
far
it
revests the title in
the covenantor,
.
.
.
reconveyance not necessary to be
76 to 80
76
made,
though perhaps prudent,
78
and
entry of judgment
might be reserved, or
....
execution stayed, until
made,
when outstanding
toppel,
nominal,
title
reduces
enuring by
the
damages
78
es-
to
80
INDEX.
DAMAGES,
measure
of,
if
tendered by covenan-
whether equity will

compel him to accept
tor,
it,
where breach
partial,
81 to 87
....
may
purchaser
recover pro tanto,

but cannot rescind the contract,
relative value of the land, when to be
88
92
90
considered,
interest
on consideration-money recov93
erable,
but only to extent to which purchaser liable for mesne profits,

costs, counsel fees,
93 to 97
and other expenses
incurred in adverse
when
suit,
re-
98 to 104
coverable,
....
and independently of notice

covenantor,
to
100
except as to reasonable.
ness of amount,
but counsel fees and expenses
in suit on covenants not re.
100
....
103
.....
134, 135
coverable,
on covenant against incumbrances,
when nominal,
general rule as
to,
difficulty in its application,
136
137
......
when incumbrance
is
an
estate for life
or years,
when estimated by amount paid for removal of incumbrance,
...
provided
137
138
do not exceed the
it
138 to 141
.
consideration-money,
in
of
intermediate
case
an
limited,
.
when
covenantee, to damages recovered from

.
375
143
142 to 144
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 obligation to redeem,
...
146 to 148
148
INDEX.
DAMAGES,
measure
of,
and when no such
right exists,
refusal to purchase will not re-
duce the damages, .

.
200
on covenant for further assurance,
on covenants for quiet enjoyment and of war.
145
to
202
ranty,
measure
of, as to
improvements and
in-
creased value different in different
312
States,
where measured by value
at time
.
314 to 316
.
.
.
of eviction,
rule of the civil law,
.
316 to 318
.
where limited by consideration-
money and interest,

by amount paid to purchase
.
adverse
title,
31 7 to 321
138 to 141, 270
an intermediate
covenantee, to amount recovered from him,
in case of
375
in case of sale
325
.
upon building covenants,
how regulated by occupying
claimant laws,
...
320
improvements, when allowed by

323
party seeking aid of equity,

distinction in actions of dower,
between improvements and

increased value,
326 to 331
DEBT,
dantages,
when
588, 589
a,
DEBTS,
liability of land for payment of,
damages come within a demise for payment
591,592
of,
598, 599
DEDI,
warranty created by,
2,467,468
DE DONIS,
effect of statute of,
upon warranty,
...
DEEDS,
of lease and release, advantage of, in England,
what covenants should be contained in. See PURCHASER.
poll, whether covenant can be maintained against
.
18
477
lessee under,
DEFAULT,
what a breach of covenant
172 to 175
DEFECT,
of, on the part of purchaser, no defence to
128 to 134
action on the covenants,
notice
INDEX.
DEFECT,
.
.
right of purchaser to title clear of,
how affected by execution of the deed,
And see PURCHASER.
611,612
612, 613
DEMISE,
....:..
covenant implied by the word,

its effect,
And
see
473
IMPLIED COVENANTS.
DESCENT,
what covenants demandable when vendor takes by,
552, 553
what covenants demandable when vendor takes by,
552, 558
DEVISE,
DEVISEE,
liability of, at
common
law,
statute in
by
England,
in United States,
594 to 596
596 to 598
593 to 596
real estate of devisee, how liable on covenants in England under devise for pay-
ment of debts,
598,599
607 to 609
rights of, generally,
on covenants
....
....
for seizin, right to
convey and
336 to 347
for quiet enjoyment, further assurance
must sue
if
and of warranty,
breach be after testator's death
352 to 356
609
210
DISCONTINUANCE,
when produced by warranty,
DISSEIZIN,
different opinions as to,
importance of this doctrine,
16
...
warranty commencing by, was void,
437
438
DISTURBANCE,
what
DIVISIBILITY OF
a,
within covenants for
COVENANTS FOR
opinion of Mr. Preston against,
Lord
See EVICTION.
title.
TITLE,
.
835, 336
335
St.
.
.
Leonards, contra,
as respects tenant for life and remainder-
DOUBLE
835, 336
man,
TITLE,
DOUBTFUL
when necessary
in cases of
exchange,
purchaser not compellable to accept,
what
DOWER,
470
TITLE,
.
562 to 565
562
is
....
no breach of covenant for seizin,

whether an incumbrance within covenants,
to
565
51
121 to 125
INDEX.
757
DOWER,
how
.....
formerly barred in England,
altered by recent statute,

in action of, defendant not estopped to
band's
DOWER
........
title,
damages
105
106
deny hus-
in,
463
326
to
466
to
331
USES,
object
in English conveyancing,
of,
no breach of covenant
105
EASEMENT,
...
for seizin,
51
113,114
587
INCUMBRANCES.
See
ELEGIT,
only execution on lands by statute of Westminster,
EMINENT DOMAIN,
right
of,
no breach of covenants
for
117,166
title,.
release of
damages
for exercise of right,
held no breach,
ENJOYMENT.
ENROLMENT,
See
293 to 305
18
QUIET ENJOYMENT.
when required by
statute 27
Henry
VIII.,
ENTRY,
exercise of right
of,
when breach
of covenant of war-
244
ranty,
EQUITABLE ESTATE,
owner
of,
when compellable
nant for the
title,
to cove-
.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

ing of assets,
....
to administer-
to marshalling of assets,
in case of covenant for further assurance,
when covenants
conveyance,
in
158
574
183 to 193
to
578
are contained in voluntary

*
.
reforming covenants,
160 .to 162
129, 522, 523, 585
in rescinding contracts or detaining purchase-
money.
See
in declaring
PURCHASE-MONEY.
mortgagee entitled
to benefit of
covenants,
exercised on behalf of covenantor,
365, 366
.
covenantee, 155
64
581 to 586
to 162, 191,
192
INDEX.
758
EQUITY,
rule
as to allowance for
of,
improvements,
320
EQUITY OF REDEMPTION,
covenants for
title will
generally,
contra in
relief
pass with, in United States,
362
England and Kentucky,
granted to mortgagor in equity
361, 365
365, 366
369 to 371
EQUITIES,
when
assignee of covenants not
bound by
prior,
ESTATE,
when necessary
privity of,
run
to enable
covenants to
334
-with land,
of mortgagor, whether sufficient to carry covenants

with it,
360
to
366
what
382
to
393
sufficient to support covenants,
See ESTOPPEL.
after-acquired.
ESTATE FOR
LIFE,
of, a breach of the covenant for seizin,
measure of damages, how estimated,
life tables admissible to show value of,
existence
52
89
90
ESTATE FOR YEARS,

damages how estimated,
ESTATE
TAIL,
137
137
.......
....
......
existence of outstanding, a breach of covenant

for seizin,
collateral
warranty
ESTOPPEL,
first
generally,
of tenant, from denying landlord's
origin of doctrine,
statute of
George
introduced to defeat,
title,
...
II.,
qualifications to doctrine,
not applicable as between
....
vendor and purchaser,

created by a recital,
but no estoppel therefrom to a purchaser,
.
nor from acceptance of an estate,
of vendor,
how
defendant in action of dower, not
52
5,
262
to
204
268
263
264
264 to 267
268
407
465, 466
464, 465
463, 466
estopped to deny husband's title,
65 to 69, 460 to 463
.
none caused by consideration clause,
extent to which doctrine is carried by recent cases,
461, 462
.
how
created by former recovery,

operation of covenants for title by
definition of estoppel,
x
76,77
.......
its
way
of,
ordinary effect,
an after-acquired estate,
where conveyance was feoffment,
as to passing
recovery,
402
402
402
fine or
402
INDEX.
7-59
ESTOPPEL,
operation of covenants for title by way of,
or in cases of leases,
but not by a grant or release,
403
404
or by conveyances under statute of
405-407
uses,
difference
between ordinary and extraordinary
.
effect of estoppel,
latter effect given in
.*
408
United States to cove409
nant of warranty,
said to be based
on the -pre venting circuity

413
of action,
early cases did not require presence
408
.
of covenants,
contrary doctrine at present time,
.
409
no estoppel where alienation

is
.
involuntary, .
statutory provision in Arkansas
411
and
411
Missouri,
no estoppel created in Maine by

covenant of non-claim,
.
contra elsewhere,
nor
by covenants
seizin
when
414, 415
415
for
satisfied
416
by tortious seizin,
nor where an after-ac.
quired estate is not included within the covenant,
....
416
nor where the covenant

is
limited
by the
conveyed,
estate
.
enants by
way
418
.
.
.
principle of the cases,
distinction between operation of cov-
421, 422
of estoppel, and re-
422
butter,
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 purcha427

from the grantor,
sers
to
433
INDEX.
760
ESTOPPEL,
operation of covenants for
title
by way
of,
effect of doctrine
on registry acts,
430
a purchaser without
may
affect
notice,
430
doctrine not wholly based on preventing

.
.
.
circuity of action,
433
exception in cases of different sets

.
of purchasers,
.
.
433
estoppel of married
women,
although not liable for

their cove-
damages on
nants,
433
supposed origin of doctrine a passage from
434
435
436
Co. Litt,
probable mistake in
its
application,
its
.
.
.
.
explanation,
rules of common law as to operation
.
. 436 to 438
of warranty,
.
.
it
required an estate to support it, .

such an estate created by
feoffment or fine,
disseizin,
437
application of these principles,

.
.
doctrine in Pennsylvania, .
in
true
England,
principle
..
436
437
but not by grant or release,
and when commencing by

was void,
436
438
to
441
.441
to
44 7
447
to
454
454
to
457
of estoppel in connection
with covenants,
no estoppel by covenants
in a purchase-
45 7 to 460
money mortgage,
estoppel of grantor to contradict considera65,
tion,
460
to
463
of purchaser, not caused by accep.463 to 465

.
.
tance of estate,
nor by
recital,
466, 46.7
EVICTION,
breach of covenants for quiet enjoyment, and of warranty
by
240 to 308
actual,
dispossession
....
by process of law,
by entry,
by voluntary abandonment,
.
242, 243
245 to 251
244
INDEX.
761
EVICTION,
constructive,
by
by
inability to get possession,

lease or purchase of adverse
when
when
where
a defence to
established
by a judgment,
...
.
251 to 260
260 to 293
260 to 278
278 to 293
293 to 305
265
308
.'
not thus established,

eviction of something which
represents the land,

payment of rent by tenant,
how pleaded,
title,
to
311
EVIDENCE,
when
65 to 69
admissible to vary consideration clause,

what, necessary to support action on covenants for
See the several Covenants.
title.
.
EXCEPTED INCUMBRANCES,
be
should
set
in
forth
abstract of
1
title,
covenantor not
28 to
34
128 to 132, 526, 530
liable for,
EXCHANGE,
warranty and condition of re-entry implied in
cases
8,
of,
inconvenience
double
title,
470
at present day, in requiring a
of,
.
.'
abolished by statute in England,
....
470
470
EXECUTED AND EXECUTORY CONTRACTS,
549, 565, 611, 612
different doctrines that govern,
EXECUTION,
under process, not necessary to eviction,
242, 243
352
assignee under, may take advantage of covenants,
350, 351, 588
by extent under statute of Westminster,
.
EXECUTOR,
liability of,
might, at common law, sue

either heir or executor,
588
how altered in United States, .
.
592 to 596
not affected by breach being before or after
covenantee
....
death of testator,
real estate of testator,
599, 600
when
assets in
hands
592 to 596
of,
not bound to retain assets to meet future

contingent breaches of covenant,
....
rights of,
none on the old warranty,

dependent on breach occurring
of testator
64*
601
336
in lifetime
336, 609
INDEX.
762
EXECUTOR,
on covenants for
seizin, right to
convey and
.
336 to 347, 599
for quiet enjoyment, further assur-
ance and of warranty,

TITLE, extent
And see COVENANTS FOR

they
on
to 356,
599
which
run with land.
what covenants to be expected from,
sales by,
when they enter
rule
into
565
covenants of
.
.
greater scope,
See IMPROVEMENTS and COSTS.
-.
EXPENDITURE.
EXPENSES. See
EXTENT,
352
to
570
to
572
COSTS.
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
by reason
FEMES COVERTS.
FEOFFMENT,
See
See
of.
purchase-money
PURCHASE-MONEY.
MARRIED WOMEN.
....
requisites to and effects of,

when disseizin created by,
16,
436
16
FIDUCIARY VENDORS,
...
covenants demandable from,

on covenants of greater scope,
.
liability of,
565, 566
570
to
572
FINE,
married
women bound by warranty
578, 579
408, 436
extends to levy-
it
.
a,
ing
in,
effect of, in divesting future rights,

covenant for further assurance whether
188
615
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,
but by action of deceit,

remedy of purchaser in case of fraud or concealment,
65
325
615
to
632
INDEX.
FRAUD,
between mistake and,
distinction
621
on ground
jurisdiction of equity in reforming covenants
139, 522, 523
of,
FRAUDULENT DEVISES,
589 to 591
statute of,
........
FURTHER ASSURANCE,
form
what
of,
covenant
for,
185
may be
acts
required under,
depend upon the scope of the other covenants in the deed,
189
or the nature of the estate con-
190
veyed,
must be necessary and practicable,
to
193
186, 187
as to production of title-deeds,
.
.
covenants not demandable in deed of further as-
194,195
surance,
usual course to obtain performance of the cove-
197
196
nant,
pleadings,
declaration must state the particular assurance required, and the right to demand
198
it,
breach
of,
when
it
occurs,
when may be taken advantage of by
assignee,
199
200
200 to 202
damages upon,
FUTURE ESTATES,
operation of warranty upon,
And
see
409
to
457
ESTOPPEL.
GATE,
erection
of,
a disturbance within covenant for quiet en181
joyment,
GAVELKIND,
warranty by ancestor did not descend upon
heir by custom of,
11,398
398
GENERAL WORDS,
in covenants,
And
see
how
limited,
492 to 519
GIVE,
warranty implied from the word,
GOOD RIGHT TO CONVEY.

GRANT,
See
.2,467,468,483
.....
....
of, at common law,

after-acquired estate did not pass by,
operation
RIGHT TO CONVEY.
404
404
INDEX.
GRANT,
covenant implied from the word grant in creation of
a leasehold,
but not in its assignment, nor in creation or
474
transfer of a freehold,
"
474
to
476
GRANT, BARGAIN AND SELL,"

no covenant created by,
at
common
law, 474 to 476
covenants created by statute from these

.
.
.
.
533 to 548
.
words,
.
GROUND-RENT,
liability
of assignee of land to pay,
ported,
arrears of,
how
sup-
335
when breach
of covenants,
of, not necessary to recovery on

covenant for quiet enjoyment,
.
173, 183
payment
purchase-money when
right to detain
164
se-
cured by,
729 to 732
And see PURCHASE-MONEY.
GROUND-RENT DEEDS,
covenant for quiet enjoyment usually inserted
And
GUARDIAN.
See
in,
164
GROUND-RENT.
FIDUCIARY VENDOR.
see
HEIR,
by customs of Gavelkind and Borough English, not
bound by warranty of ancestor,
except by
way
of rebutter,
11,398
398
liability of,
on the old warranty,

on covenants for title,
must be named,
and have assets by descent,
common-law rules as to liability
.
.3, 469, 587
586
.
587
of,
588
could be sued jointly with executor,

immaterial whether covenant broken be-
588
death of ancestor,
.
he had aliened the lands,
remedy by statute of fraudulent devises, .
trust estates not assets before statute of
589
fore, or after
but not liable
if
589
frauds,
lands
how liable
in
in
589
589
at present day, in
England,
United States,
rights of, on the old warranty,

on covenants for seizin,
incumbrances,
hands
of,
....
.
right to
592, 593
591
592
336
convey and
336 to 347
INDEX.
765
HEIR,
right of,
on covenants,
for quiet
enjoyment, farther assurance and
of warranty,
352 to 356
must sue if breach be after death of ances-
609
tor,
And
see
extent to which they
run with land.
HIGHWAY,
for seizin,
...
51
whether breach of covenant against incumbrances, 115
to 119
HOMAGE,
warranty implied from,
how
affected
statute of quia emptores,
by
2,
467
3
HOUSE,
right of
occupancy
of,
a breach of covenant against
incumbrances,
buildings, removal or destruction
of,
113
a breach of cove-
nant for quiet enjoyment or of warranty,
HUSBAND AND WIFE,
181,295
made by husband, of wife's estate, within

covenants limited to those claiming by, from,
or under him,
lease
......
so
when made under
176, 177
power,
DOWER
ILLEGAL CONTRACTS,
And
176
defective execution of a
see
how
and MARRIED
far.
WOMEN.
88 to 44
void,
IMPLIED COVENANTS,
exist at present day at common law, in
creation or transfer of a freehold,
or from the word grant, or the like, .
but implied from the words of leasing, .
.
none
474
to
from the words yielding and paying,

but not in the assignment of a lease,
nor from a mere agreement to let,
476
478
480
effect of implied covenant,
restrained
by express covenants,
477,478
483
....
no longer than the estate out of

which it is granted,
what covenant implied from mere relation of
lasts
landlord and tenant,

distinction
476
476
476
484
479
to
483
between express and implied cov-
enants,
....
covenants not to be implied from

rights of assignees under,
recitals,
485 to 488
488 to 490
488
INDEX.
766
IMPLIED COVENANTS,
implied by statute from the words grant, bar-
533 to 548
gain and sell,
are joint or several, according to interest
578
granted,
IMPLIED WARRANTY,'
heir not
469
bound by,
from homage,
how
affected
by
statutes de
......
in cases of exchange,
2,
2, 3,
467
467, 468
470
470 to 473
of partition,
inconvenience of doctrine at present

day in requiring a double title,
.
but the implied warranty only ex.

tended to coparceners, .
.
how
how
467
bigamis and
quia emptores,
from the word dedi,
2,
affected
by alienation,
altered by statute of Henry
VIII
and in cases of partition by
.
470
471
471
471
472
writ,
Pennsylvania, in
cases of tenants in common
different in
by
...
descent,
remedy
472
upon, at pres-
ent day,
473
IMPROVEMENTS,
not allowed to purchaser as damages on covenants
.
.
for seizin and against incumbrances,
where allowed on covenants for quiet enjoyment
.
312 to 324
and of warranty,
.
in cases of sale with building covenant, .
when allowed by party seeking aid of equity,
how
57 to 65
....
allowed by occupying claimant laws,
recoverable in cases of fraud,
825
823
820
65,325
INCREASE,
in value,
how allowed
for in
admeasurement of
826 to 830
dower,
when not
recoverable in action on the
covenants.
See
DAMAGES.
INCUMBER,
fiduciary vendors, only covenant that they have
done no act to,
565, 566
INCUMBRANCES,
known, should be expressly excepted from
covenants,
128, 183
INDEX.
7^7
INCUMBRANCES,
otherwise, notice
of,
no defence
to cove-
128 to 129
nantor,
exception
how
of,
introduced
cove-
in
133
nants,
covenant against,
form of,
109
when limited to acts of

when given by 'trustee,
in
grantor,
.
Ill
112
......
England, usually supplementary

and, therefore, prospective in
how expressed
in
its
covenant
operation,
America,
distinction between, and covenant
.
to
Ill
to discharge of
153
incumbrances,
what a breach of,
taxes, judgments, mortgages, &c.,
contingent
110
110
liability,
113
113
113 to 119
easements,
distinction
ficial
between natural and
watercourse,
public roads,
right of eminent domain,
as to right of dower,
.
arti-
114
115 to 119
.
117
119 to 125
pleadings upon,
plaintiff must set forth the incumbrance,
also the special damage, .
.
...
...
.
form of declaration,
measure of damages, specific performance of,
not decreed as a general rule,
exceptional cases on principles of quia
125
127,378
126
154
154
timet,
and when incidental

tion of assets,
when covenants
to administra.
...
158
are contained in voluntary
160
conveyance,
known incumbrances
from the covenant,
should be excepted
.
128
notice of incumbrance no defence to action
on the covenant,
128
jurisdiction of equity in reformation of cov-
enants,
rights of assignee of. See COVENANTS FOR
TITLE, extent to which they run with
land.
129
INDEX.
INDEMNITY,
covenant against incumbrances partakes of character of covenant of,
.
.
173
.......
........
INFANTS,
covenants from,
559
conveyance by infant grantor, no breach of covenants

for seizin,
but of covenant for good right to convey,
52
107
INJUNCTION,
when granted
to restrain collection of
See
money.
purchase-
PURCHASE-MONEY.
INSOLVENCY,
when
a basis of equitable jurisdiction in repayment of purchase-money, 691 to 700
lieving from
INSOLVENT,
trustees
of,
567
INTEREST,
after-acquired.
See
ESTOPPEL.
on consideration-money, recoverable as damages,

but only to extent to which purchaser liable
for
INTERRUPTION.
mesne
93 to 97
93 to 97
profits,
See EVICTION.
INVOLUNTARY ALIENATION,
covenants for
title will
pass by,
352
410
'
no estoppel created by,
JOINT AND SEVERAL COVENANTS,
.....
as to liability of covenantors,
rights of covenantee,
JUDGMENT,
578
603
to
606
...
51
....
188

whether removal of, may be required under covenant for further assurance,
LAND,
covenants running with.
See
LANDLORD AND TENANT,

what implied covenant for title arises from simple
relation of (and See TENANT),
479
.
LATENT DEFECTS,
when must be
disclosed
by vendor,
....
to
483
626
LEASE,
when an incumbrance
within covenants,
usual covenants contained
in,
52,113,140
........
163
measure of damages upon covenants contained

in,
effect of, in passing
an after-acquired
estate,
142, 325
403, 440, 441
INDEX.
LEASE,
covenants implied in creation of,
but not in assignment of,
476
.
to
483
473
LEASE FOR LIFE OR YEARS,

measure of damages upon incumbrances caused by,
89, 137
LEASE AND RELEASE,

deeds
of,
generally employed in England,
why
is
LEASEHOLD,
ancient warranty used as personal covenant
with respect to,
implied covenants
enants,
in,
restrained
9,
208
by express cov483
LET,
covenant implied from the word,
SIT^:,
covenants for title, how far to be governed by,
476
LEX LOCI REI
43
LIABILITY,
of covenantor.
See
COVENANTOR, and
the several
Covenants.
of married women.
See
MARRIED WOMEN.
See HEIR.
of heir.
See DEVISEE.
of devisee.
See
of executor.
EXECUTOR.
of assignee.
See ASSIGNEE.
how
on real estate of decedent,
LIEN,
debts,
far a lien
591, 592
52
LIFE ESTATE,
of, a breach of covenant for seizin,
measure of damages, how estimated,
existence
value
of,
how proved,
89
137
LIMITATION,
of time, effect
of, in
freeing lands from lien of debts, 594 to 596

satisfaction of cove-
when presumption of
nants arises from,
LIVERY OF
602, 603
SEIZIN,
necessary to feudal transfer of freehold,
...
15
LOCAL,
action on covenants for
claims
by
title
privity of estate,
are local
.
when
.
plaintiff
.
MAINTENANCE. See CHAMPERTY.

MARRIED WOMEN,
dower
of,
575, 576
whether an incumbrance within cove119 to 125
nants,
how
65
formerly barred in England,

altered by recent statutes,
105, 579
105, 579
770
INDEX.
MARRIED WOMEN,
estoppel
of,
....
....
....
433, 434, 580
by covenants,
denied in some States

but not liable in damages,
except in case of a
579
fine,
MARSHALLING OF ASSETS,
presence of covenants for
434
573 to 580
when
title,
material
in,
574 to 576
MEANS,
construction of words, means, privity
MESNE PROFITS,
interest
and procurement,
172
on consideration-money recoverable as equiva-
lent to loss
93
of,
but limited to extent of purchaser's
METES AND BOUNDS,

covenants
when extended
liability for,
93 to 97
524 to 531
to,
MINOR. See INFANT.

MISREPRESENTATION,
remedy of purchaser
in case of fraud or,
615 to 632
MISTAKE,
how
distinguished from fraud,

in framing covenants not remediable at law,
jurisdiction of equity in refusing covenants on
of,
MORTGAGE,
621
18,129
ground
129,522,523
....

measure of damages by reason
51
113, 135, 146 to 148
of,
while purchaser's right of redemption open,

limited to amount necessary to purchase it,
but purchaser under no obligation to redeem,
and if evicted by, and redemption be past,
146, 147
145, 148
......
damages will be measured by the consideramoney,

where no redemption exists, refusal to purtion
chase will not reduce the damages,
148
145
equity of redemption, whether covenants run

with (and see MORTGAGOR),
.
.
362 to 366
....
unlimited covenants inserted
in,
mortgagor when not estopped by his covenants

when retirement before, an eviction,
...
in,
457
to
552
460
249
MORTGAGOR,
estate of,
whether
sufficient to carry
covenants to
purchaser from,
doctrine in United States, generally,

contra in England and Kentucky,
relief afforded
by equity,
....
.
360 to 366
861 to 364
860, 361
365,366
INDEX.
771
MORTGAGOR,
unlimited covenants usually given by,
but in case of purchase-money
552
mortgages
these are restrained to acts of mortgagor,
457
to
460
MORTMAIN,
and recoveries used
fines
to
evade statutes
of,
NEGLECT,
covenant for further assurance not broken when act
.
prevented by neglect of covenantee,
a breach of covenant for quiet enjoyment,
.
when
NOMINAL DAMAGES.
See
NON-CLAIM, COVENANT
OF,
its
nature,
form
187, 188
172 to 176
DAMAGES.
222
222
limited,
223
of,
when
capacity for running with land, denied in Maine, 415 to 417
NOTICE,
under averment
of,
in pleading,
whether proof
.
given of dispensation,
no presumption of notice of defect of
.
may be
.
....
title
arises
311
from
presence or absence of covenants,

no defence to action on the cove-
556
of incumbrance,
128, 134
nants,
.......
necessary to recovery on
to
warrantor of adverse
to
warrantia chartce,
covenantor, not necessary to recovery on cove-
suit,
238
237, 238
nants,
nor to recovery of costs and expenses of adverse
100
suit,
except as to reasonableness of amount,
advantage to covenantee from giving notice,

manner in which it should be given,
.
whether parol notice
is
sufficient,
100
238, 239
228 to 230
229, 230
payment by debtor after notice of assignment invalid

as against assignee,
application to covenants for
purchaser without,
how
affected
377
.
title,
377 to 381
by doctrine of estop430
pel,
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
OUSTER.
of,
allowance for improvements,

See EVICTION.
how
regulated by
64
320
INDEX.
Tl"2
PARAMOUNT
TITLE.
See EVICTION.
PAROL EVIDENCE,
PAROL LEASE,
129, 150
what covenants
for title implied in,
479
to
483
PARTIES,
covenants when defeated by neglect of, .
.
.
to action on covenants.
See ASSIGNEE, COVE-
187, 188
NANTOR, COVENANTER, DEVISEE, HEIR, EXECUTOR.
PARTITION,
470 to 473
warranty implied in, at common law,
inconvenience of, at present day,
470
in requiring a double title,
471
.
only extended to coparceners,
471
how affected by alienation,
.
how
altered
by
statute
of Hen.
471
VIII.,
472
and
.
.
to cases of partition by writ,
different in Pennsylvania in cases of ten-
ants in
common by
remedy upon
descent,
at present day,
PARTY OR PRIVY,
effect of the words,
PERSONAL COVENANT.
PERSONAL PROPERTY,
112
sale of,
50
See
warranty of
472
473
...
title,
how
on
far implied
PERSONAL WRONG,
covenants for
title
do not extend
to,
169
PEWS,
when breach
liability of, for assessments,
PLEADING. See
POSSESSION,
of covenant
.
when covenants
nature
of,
for title wil! pass with,
to enable
them
to
do
so,
doctrine that covenant for seizin

transfer
satisfied
altered
by
....
by conveyance under
436
33, 34, 436

of,
when an
eviction,
.245
.
covenant for seizin omitted, .
person taking under execution of, is within covenant
sale under,
dor,
15, 83,
statute of
uses,
abandonment
for quiet
388 to 393
393
20 to 47
see SEIZIN.
necessary to feudal transfer,
how
is
of,
And
when
113
the different covenants.
enjoyment against
all
to 251
105
claiming under ven-
179,180
INDEX.
773
POWER,
covenant arising from words of leasing implies power
478
to demise,
PRESENTI, COVENANT
IN.
See
PRESUMPTION,
of satisfaction of covenants from lapse of time,
381, 595
PRICE. See DAMAGES.

PRIVITY,
172
definition of, when contained in limited covenants,
of estate, when necessary to enable covenants to run
with land,
to
179
334,335
PRIVY,
effect of the
when
112,567
word,
effect of adve-rse
judgment
on,
within operation of estoppel,
....
230 to 234
427,435
PROCUREMENT,
signification of the
word within covenant for

179
quiet enjoyment,
PRODUCTION,
of
title
deeds,
when may be
called for
covenant for further assurance,
under
.
195
PURCHASE-MONEY,
when the measure of damages on covenants.
See
DAM-
AGES.
........
arid not
right to reclaim, must be by action of covenant,
of assumpsit,
right to detain, depends solely on the covenants received,
640
613, 614, 634
except in cases of fraud or concealment,

grounds upon which it has been based,
636, 638
set-off,
638, 657
recoupment,
....
preventing circuity of action,

doctrine,
how
applied in courts of law,
638
638 to 646
646 to 676
646 to 672
mere absence of title, when no defence,

but purchaser may detain when an eviction,
actual or constructive,
or to the
amount properly paid
how
mere
no
.
.
applied in courts of equity,
absence of title, or adverse suit brought,
.
ground to restrain collection of,
or to rescind the contract,

relief,
how
damages,
65 *
afforded
672,673
to supply
defects,
doctrine,
615 to 632
when present
673 to 676
676 to 700
676 to 684
684
right to
686 to 690
INDEX.
PURCHASE-MONET,
quid timet jurisdiction, how exercised,
insolvency or non-residence, .
691 to 700
691 to 700
jurisdiction, when all parties to title are before the Court,
principles enforced in South Carolina,

early cases departed from,
its
v.
696 to 700
700 to 706
705
703 to 743
710 to 714
...
...
rule at present day,

principles enforced in Pennsylvania,
case of Steirihauer
706
707
Witman,
correct application,
right to detain, depends on

whether he agreed to run risk of title,
714 to
when defect or incumbrance is -unknown,
what must be character of defect, . 716 to
what will constitute notice,
.
721,
where known defect and no covenant,
723 to
where known incumbrance and no cove.
purchaser's
714
722
721
722
727
727 to 732
nant,
.....
where covenant against a known defect or

incumbrance,
733 to 740
where purchase-money secured by ground740 to 743
rent,
when purchaser may set off his damages,

when defence an equitable one,
manner in which it is made avail.
741
741
742
able,
PURCHASER,
right
to clear
of,
title,
while contract exec549, 565, 612
utory,
how
by execution of convey-
affected
ance,
rule of caveat emptor,
rights
of,
as
how
applied,
612, 613
614, 616 to 632
See
respects purchase-money.
PURCHASE-MONEY.
QUALIFIED
QUANTITY,
See VENwhat covenants demandable by.

DOR.
notice by, of incumbrance, no defence to action on covenants,
128
COVENANTS. See COVENANTS FOR TITLE.
covenants for
title
do not extend
to,
to
134
524
467
4JUIA EMPTORES,
effect of statute of,
upon warranty,
QUIA TIMET,
jurisdiction of equity in specific
covenants,
performance of
154
to 157,
387
INDEX.
775
QUIA TIMET,
in detaining purchase-money,
And
see
691 to 700
PURCHASE-MONEY.
QUIET ENJOYMENT,
covenant
for,
163
definition of,
form
....
.....
of,
163
164
in ground-rent deeds,
when
limited,
usual covenant in a lease,
and
.....
in ground-rent deeds,
164
163
163
but payment of rent not a condition

precedent to recovery on covenant,
does not extend to tortious interruptions,
except those of the covenantor,
.
164
.
165
168
but not to mere trespassers,
169
or of a particularly named person, .

or where so expressed in the deed,
words by which it is restrained to acts of ven-
70
171
171
dor,
construction of words acts
and means,
172
of agent, when
the act of the cov-
act
enantor,
default,
means,
title,
curement,
breach
of,
and covenant of warranty,
in general,
And
runs with the land.
see
to
175
or pro-
by, from, or under,
distinction between,
190
172
179
175 to 179
180
181
EVICTION.
See
pleadings upon,
declaration must aver interruption to have
been under lawful title, existing before
conveyance,
but adverse title need not be particularly
182
.....
182
set forth,
measure of damages. See DAMAGES.
183
QUIT CLAIM. See NON-CLAIM.

REAL COVENANTS,
what
334, 336
are,
assignee,
And
when
see
entitled to benefit of,
336 to 393
INDEX.
776
REASONABLE ACTS,
188 to 193
signification of the term,
REBUTTER,
operation of the old warranty by
And
see
way
ESTOPPEL.
of,
4,
400
to
402
RECITAL,
....
operation of, in passing an after-acquired estate,

covenants not to be implied from,
no estoppel
caused by,
to purchaser
RE-CONVEYANCE,
407
488 to 490
466,467
.......
....
not necessary to recovery on covenants for

title,
when prudent to offer it,

when necessary in Pennsylvania
76
78
in order to
739
.
detain purchase-money,
.
.
covenants contained in, restrained to acts of
grantor only,
doctrine
457
to
.......
RECOUPMENT,
of,
632
....
REDDENDUM,
implied covenants raised by,
460
476
REDEMPTION,
equity
of,
when covenants
will
run with,
360 to 366
RE-ENTRY,
of, implied in partition and exchange,
abolished by statute in England,
...
condition
and does not
exist
under express covenants,
REFORMATION,
in equity of covenants,
470
to
473
470
472
129, 520
...
REFUSAL,
to purchase
paramount
title
covery on covenants,
no bar
to purchaser's re82, 145
REGISTRY ACTS,
whether release of covenants for
effect of doctrine of estoppel
title
upon,
comes within,
.
371, 372
430
RELATIVE VALUE,
of land,
when
to
be considered in measuring
90, 91
damages,
RELEASE,
by nominal
plaintiff, will
not defeat rights of party
877
actually interested,
by covenantee, after conveyance, of no effect, .

but if made while still the owner,
will
369
it
bind as between himself and

868, 369
covenantor,
may be made by
States,
parol in
United
369
INDEX.
777
RELEASE,
by covenantee,
contra, in England,
at
bind
will
law,
371, 379
chaser,
whether within the registry
RELIEF.
See
369
subsequent pur372, 373
acts,
EQUITY and PURCHASE-MONEY.
RENT,
in arrear,
payment
of,
....
...
by covenantee, not necessary
recovery on covenants,
when a breach of covenants for
his
payment of (and
and PURCHASE-MONEY.)
eviction suspends
to
title,
see
164
173
GROUND-RENT
RESCISSION,
of contract, jurisdiction of equity as to,
.
not to be effected when partial failure of title,
RESTRICTIVE WORDS,
what, used in limited covenant for seizin,
616 to 632
92
...
19
Ill
171, 172
of warranty,
223
RESULTING TRUST,
grantor estopped by covenants from setting up
such an interest in consideration-money, as to
463
cause,
REVERSION,
covenants for
title will
pass with,
RIGHT OF WAY,
existence
of,
....
for seizin,
363,387
51
but a breach of covenant against incum113, 114
brances,
interruption
of,
a disturbance within covenant for
quiet enjoyment, .
concealment of, how far a fraud,
RIGHT TO CONVEY,
covenant
of,
seizin,
when
when
....
........
when synonymous with covenant
for
105
105
omitted,
satisfied
181
616, 631
by transfer of actual
seizin,
24 to 49, 106, 107

doctrine
how connected
with cham-
perty acts,
form
of,
breach of by infancy of grantor,

.
.
pleadings on. See SEIZIN, COVENANT OF.
damages on. See DAMAGES.
30
107
52, 107
INDEX.
778
RIGHTS,
of covenantee.
See the several Covenants.
when joint or
COVENANTS.
several.
SEVERAL
See JOINT and
See HEIR.
of heir.
See DEVISEE.
of devisee.
of executor or administrator.
See
EXECUTOR.
See ASSIGNEE.
of assignee.
ROADS,
existence
.
of, no breach of covenant for seizin,
whether breach of covenant against incum-
brances,
51
141 to 146
SEIZIN,
one of the parts of
livery
when
15
title,
.....
necessary to feudal transfer of freehold,

synonymous with possession,
of,
.......
.......
........
signification how modified,

seizin and disseizin,
covenant
for,
when synonymous with covenant

vey,
when
omitted,
seldom used in
form
of,
England
17
16
of right to con-
at the present day,
how qualified,
definition of,
15
15
17
17
18
18
19
....
original construction given to,

modified in parts of United States,
.
.
doctrine of actual seizin sufficient to support the
how
19
20
20
20 to 47
covenant,
nature of the seizin,
not a mere trespass,
...
....
origin of the doctrine,

distinction taken in Ohio,
23, 24
20
20
22
24
applied also to covenant of right to convey,
.
.
26 to 29, 48
,
many States
30
probable reasons for,
....
denied in
connected with champerty acts,

no estoppel caused by, under this doctrine,
.
breach
30
417
of,
by adverse possession
24, 44 to 47, 271
51
easements,
...
.
.
.
incumbrances,
removal of appurtenances to freehold,
.
in pleading on, sufficient to negative the words of
.
the covenant,
51
52
53, 54
INDEX.
779
SEIZIN,
covenant
for,
unnecessary to aver special damage,
54
or to set forth particulars of paramount

burden of proof, on whom it lies, .
title,
.
54
55 to 57
measure of damages.
SET-OFF.
See
PURCHASE-MONEY.
SEVERAL COVENANTS,
JOINT AND SEVERAL COVENANTS.
See
SHARES,
when
of a corporation, liability of, to assessments,

a breach of covenant for incumbrances,
SHERIFF'S SALE,
covenants for
title will
113
...
pass by,
352
SPECIALTY CREDITORS,
common law,
how enlarged by
rights of, at
in
....
....
when decreed,
not compellable when
right of dower,
generally,
of covenants for
586
to
589
Eng589 to 599
land,
in United States,
SPECIFIC PERFORMANCE,
statute
592
to
602
562
outstanding
123
title,
not decreed as a general rule, .

.
exceptional cases on principles of
quia timet,
....
and when incidental
154
154 to 157, 387
to ad-
ministration of assets,
.
158 to 162
are contained in
when covenants
voluntary conveyance,
160 to 162
STATUTE,
covenants implied by.
See
GRANT, BARGAIN AND SELL.
STRANGER,
adverse possession by,
when breach
of covenant
23, 24
for seizin,
not of covenant of warranty,

.
interruption by, no breach of covenant for quiet
.
259,260
165
enjoyment,
SUIT,
interruption by,
when a breach
of covenant for quiet en171, 222
joyment,
TAXES,
when breach
of covenant for quiet enjoyment,

1 75
113
INDEX.
780
TENANT,
what implied covenant
arises from simple relation of

landlord and,
.
479 to 483
payment of rent in arrear by, not condition precedent to recovery by, on covenants for title,
164
may
...
....
....
not deny title of landlord,

origin of the rule,
261 to 268
262
264
.
.
exceptions to,
has no application to relations between ven-
dor and purchaser,
268
TENANTS IN COMMON,
by descent, warranty implied in Pennsylvania, in partition by deed between,
may join or sever, in actions on covenants,
.
472, 473
606
right of action on covenants given to survivor, when breach in lifetime of both, .
TENURE,
warranty, an incident
of,
....
2,
609
204, 467, 468
TIMBER,
right to cut, a breach of covenant against incum-
114
brances,
TIME,
effect of, in freeing land
from lien of debts,
presumption of satisfaction of covenants from lapse
of,
594 to 596
602, 603
TITLE,
15,25
definition of,
TITLE PAPERS,
whether production of, can be compelled under covenant for further assurance,
195
TORTIOUS ACTS,
covenants for
title
do not extend
165
to,
except those of the covenantor him167
self,
....
but not to personal wrongs committed by him,

of a particularly
TORTIOUS
named
person,
when so expressed in the deed,
SEIZIN. See SEIZIN, COVENANT FOR.
TRESPASS,
no breach of covenant for
nor for quiet enjoyment,
70
171
...
seizin,
.
169
20
165
TRUSTEE,
....
form of covenants usually given by,

liability of, on those of greater scope,
112,566
565, 566
570
to
572
INDEX.
781
USES,
operation by estoppel, of conveyance taking effect under
See ESTOPPEL.
statute of.
........
whom
conveyances to, with

entered into,
USUAL COVENANTS,
what
covenants for
title
should be
are,
353
550
to
568
And see VENDOR.

in a lease, a question for the jury,
attorney liable for not inserting,
554
549
549
VENDOR,
attorney of, responsible for unusual covenants,
....
549 to 553
general rules in England,
554
what are usual covenants, a question for jury,
vendor claiming by purchase, covenants against
his
*
own
acts only,
550 to 553
or
descent,
devise,
by
voluntary conveyance, covenants against acts of ances-
.
.
.
tor, testator, or grantor,
unqualified covenants demandable in mortgages
though,
when given
for
552, 553
552
purchase-money,
these covenants restrained to acts* of
...
mortgagor,
and
in
common
leases,
457
to
460
552
difference of practice in the United States, as

to the covenants demandable from,
.
.
554 to 559
subject to
be controlled by terms of
559
contract,
no presumption of notice of defect of

title arises from
presence or absence
....
of covenants,
agreement by,
to give sufficient
deed not
fulfilled
mere delivery of deed with covenants,
556
by
principle of construction of such agreements,

rule in equity as to doubtful title,
.
559
to
565
562
562
fiduciary vendors,
....
ordinarily merely covenant that they have

done no act to incumber,
unless where they have also an interest,

or ask for specific performance
565, 566
56 7
by
vendee, of contract made with
tes-
566
tator,
cestui
que trusts covenant
to
extent of
their interest,
test of application
66
567, 568
of rule,
568
INDEX.
782
VEND OK,
fiduciary vendors,
to
power
.agents,
power
sell
given to, implies

by covenants, .
569, 570
to bind principal
fiduciary vendors personally liable on covenants of greater scope than are properly
'
demandable from,
possible exceptions,
570
to
572
....
sheriffs, tax-collectors, &c.,
demandable from,
VOLUNTARY CONVEYANCE,
572
no covenants
573
vendor claiming under, what covenants demandable from,
specific
when
decreed,
..
553
performance of covenants contained
in,
160 to 162
VOLUNTARY DISPOSSESSION,
when
it
constitutes
an eviction
245 to 251, 288
to
293
VOUCHER,
how employed,
when necessary
8,
to recover
on warranty,
238
rule of the civil law,
238,239
WARRANTY,
implied as incident of tenure,
....
....
....
from partition and exchange,

from the word dedi,
how
limited
by
statute de bigamis,
quia emptores,
express, when introduced,

did not restrain effect of implied warranty,
effect of, as
205, 228
a means of redress,
.
by way of rebutter,
descended on heir at common law,
but as to rebutter, it operated on
the customary heir,
204
4,
205
4,
4,394
4,11
399
....
depended on receipt of other lands

by the heir,
by tenant by the curtesy, how restrained
by statute of Gloucester,
by ^tenant for life, how restrained by
statute of Hen. VII. and of Anne,
statute of Anne, how far in force in the
.
United
States,
barred
how
tin-
introduced,
heir without assets,
restrained by statute of
where
re-i'ii;u-tnl in
remedy upon by warrantia
395, 396
397, 398
5, 7,
Anne,
United States,
chartce t
7,
395
when and why
4,
collateral,
394
...
204
395
7, 395
397, 398
8, 205
INDEX.
783
....
WARRANTY,
remedy upon by voucher,
to other lands,
recovery on, whether limited
used as a personal covenant as to leaseholds,
205
9,
223
12, 16, 219 to
232
and personal covenants,
of chattels,
covenant
8,
205, 206
50
<
of,
United States,
and ancient warranty,
for title in
principal covenant
203
204 to 216
covenant for quiet en-
221
.
.
joyment,
covenants for seizin and
288
against incuinbrances,
form
...
of,
when
covenantee
limited,
may
covenantor,
what
224
225
give notice of adverse suit to
...
constitutes proper notice,
226
228
229
whether parol or written,

time within which it should be
.
231
given,
effect of notice,
when
when
conclusive on covenantor,
230
233
not,
notice not essential to recovery on cove-
237
nant,
breach
of,
generally,
....
covenant does not extend

quantity of land,
to
warrant
524
293
seems, to water which covers it,

nor to release to State of damages from
nor,
it
exercise of right of eminent domain,
166, 295 to
305
by
eviction,
actual eviction,
by process of law,
by entry,
voluntary abandonment,
dispossession
242
244
245 to 251
constructive eviction,
251
by inability to get possession,
by lease or purchase of adverse
title when established by a judg260
ment,
.
to
260
to
278
when
not thus established, 278 to 282

eviction is of something
where
which represents the land,
293 to 305
INDEX.
784
WARRANTY,
....
pleadings on,
measure of damages.
WANT OF
308
ESTATE,
effect of,
on rights of assignee of cove382 to 393
nants,
WARRANTIA CHARTS,
writ
one of the remedies on warranty,
of,
what
in
actions, allowed,
205
....
nature of the remedy by means
206
206
of,
quia timet .implacitari,

notice to warrantor, of adverse ac-
238
tion necessary to recovery upon,

recovery on, whether limited to
other lands,
....
205
WATER,
covenant of warranty does not,
it
seems, extend to
29-3
WATERCOURSE,
....
draw water from, no breach of

covenant for seizin,
breach of covenant against incum-
right to
51
113, 114
brances,
distinction
and
between natural
artificial
116
watercourse,
WAY,
how far a breach of covenants,
concealment of existence of, how far a fraud,
right of,
WIDOW.
See
51, 113, 118
616, 631
DOWER AND MARRIED WOMEN.
WILL,
vendor claiming under, what covenants demandable
553
from,
WITNESS,
covenantor,
when made competent, by
release of
41, 380
covenants,
WORDS,
.......
signification of,
acts,
means,
means, title *r procurement,

party or privy,
reasonable act,
172
172 to 179
consent, default,
179
112,567
.
188
to
193
YIELDING AND PAYING,

implied covenants arising from these
words,
476
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r

WILLIAM HENKY KAWLE.

THIRD EDITION, REVISED AND ENLARGED.

Entered according to Act of Congress, in the year I860,

By WILLIAM HENRY RAWLE,

HOUGHTON AND COMPANY.

PKEFACE TO THE THIRD EDITION.

IN the preparation of this edition, the former treatise

has been carefully revised, and

the present time

a slight reduction in the size of

the type, and

parts of the former text

into notes, the author has

been enabled to present

much new matter without

increasing the size of the

With the view of

cited in the work.

attaining greater accura-

every authority previously

PREFACE TO THE FIRST EDITION.

and rights of vendors and purchasers of

some shape or form,

duced into nearly every conveyance of real

hoped that the

believed to possess a peculiar im-

portance in this country.

In England, the elaborate

which these covenants are clothed

most precludes a question as to their construction

no respect more strikingly shown

than in the form in which the covenants for

The covenant of warranty, moreover,

here more frequently employed than any other.

country about the time

end of the reign of Henry the Seventh, had, towards

of that of Charles the

sumed something of a regular form. Of the changes

The ancient warranty was nearly

we may judge from

although superseded in England by the

country by our ancestors, and has

breadth, been extensively used,

and become, perhaps, the principal covenant

The following arrangement of this subject has

the covenant for

the covenant of right to

nant against incumbrances

the covenant for further assurance

and separately, with the examination, in the

run with the land

ing the effect given to the words

and the ex-

be limited or qualified, either

the insertion of other covenants or

statutory local enactments,

of implied covenants for

considered the extent

the covenants which a purchaser has a

and which a vendor

and covenantee, the

tor or administrator, find