tj (IJnrtipU Ham ^rl^nnl Hibraty KF 66 1.R2|'i8"73""'""'>' '"""•^'■i' ^ii?iiS^'"-eatiset Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018770085 PRACTICAL TREATISE THE LAW COYENANTS FOR TITLE. BY WILLIAM HENEY RAWLE. FOURTH EDITION. REVISED AND ENLARGED. BOSTON: LITTLE, BEOWN, AND COMPANY. 1873. Entered according to Act of Congress, in the year 18Y3, by WILLIAM HENRY EAWLE, In tile Office of the Librarian of Congress, at Washington. cameeidge: press of john wilson and son. 1 PREFACE TO THE FOURTH EDITION. The delay in the publication of this edition has been matter of regret to the author, but if the result shall have possibly given to it an increased maturity of thought, that regret will cease. The kind reception of the previous editions has naturally increased the desire to make the trea- tise better worth the acceptance of the profession, and to this end every line of it has been carefully considered, and every authority reconsulted. Much of it has been written over, — in particular, the introduction, the chapter on " the usual covenants," on the covenant against incumbrances, on covenants running with the land, and as to their oper- ation by way of estoppel or rebutter. The subject of the measure of damages has been considered separately, and a new chapter has been added, — " The jurisdiction of equity as to covenants for title." Every care has, however, been taken not to increase the size of the volume, which has been accomplished by condensing much of what, once matter of controversy, has lately become settled, and by throwing much of the former text into the notes. It is believed that the treatise now correctly represents the present state of IV PREFACE TO THE FOURTH EDITION. the law upon both sides of the Atlantic. In order to ensure accuracy, all the authorities cited have been verified after the matter was in type. Although this has been necessarily done in the midst of professional distractions, yet the author has owed to this book a debt which he could only repay by endeavoring to improve it. To his former student, Mr. A. T. Freedley, the author is indebted for the table of contents, the table of cases, the index, and for the most efficient help throughout. Philadelphia, June, 1873. CONTENTS. CHAPTER I. "WAERANTT AND THE INTRODUCTION OP COVENANTS FOE TITLE. PAGE Warranty at common law .' 2 Modified by statutes (ie feigramis, of Gloucester, and of gMJa empiore* . . 3 Indirect effect of statute de donis 6 Consequent introduction of collateral warranty to bar estates tail ... 6 Its effect until Taltarum's case 9 Statutory restraints upon collateral warranty 11 Remedy on warranty by warrantia cjiartce and by voucher 12 Damages upon recovery 15 When superseded by covenants for title 16 Probable reasons therefor 17 Object, number and advantage of covenants for title 17 Their introduction into the American colonies 18 CHAPTER II. THE USUAL COVENANTS, AND WHAT COVENANTS A PURCHASER HAS A EIGHT TO EXPECT. Introduction of modern law of vendor and purchaser 21 Natural difference between the rules in England and America 22 The ' ' usual covenants " in England 23 As to sales in fee-simple 24 form of covenants in '. 25 As to mortgages 26 As to assignment of leaseholds 26 form of covenants in 27 As to common leases 27 The " usual covenants " in America 28 form of covenants 28 covenant of non-claim 29 Covenants requirable from different classes of vendors 29 1. Those conveying in their own right 30 In England, covenants only extend to their own acts, or the acts of the last purchaser "... 30, 32 Browning v. Wright . 30 VI CONTENTS. In England, mortgagor covenants generally "^^ Different rules in the United States 8^ Gazley v. Price '*^ in 2. Fiduciary vendors ... *^ Covenant by trustee * by cestui que trust ^" by agent *' When fiduciary vendors are personally liable upon their covenants 49 3. Ministerial vendors ^'- CHAPTER III. THE- COVENANT FOR SEISIN. Definition of seisin as distinguished from title and possession 54 Definition of covenant 5G, 77 Doctrine that it is satisfied by an actual though tortious seisin .... 56 Its origin 56 Marston v. Hobbs 56 Applied also to covenant for right to convey 59 Dissent from the doctrine 61 Reasons upon which it is supposed to be based 64 Probably arose from champerty acts C5 Sketch of those statutes 66 Their partial re-enactment in the United States G8 Effect of such statute upon the covenants 70 Question whether, apart from their operation, the covenant is broken by adverse possession 74 This covenant generally regarded as assuring the title 76 Difficulties of abstractly treating covenants for title as part of the law of real estate 77 What constitutes a breach of the covenant 78 Not broken by easements not affecting the seisin 80 Pleadings 82 Sufficient to negative the words of the covenant 82 Unnecessary to aver eviction or special damage 83 Or to state particulars of paramount title 83 Burden of proof lies on the defendant 88 CHAPTER IV. THE COVENANT FOR GOOD RIGHT TO CONVEX. • When synonymous with the covenant for seisin 87 When introduced in place of it 87 Breach ' 88 Pleadings and damages 88 CONTENTS. VU CHAPTER V. THE COVENANT AGAINST INCUMBRANCES. In England, generally supplementary to covenant for quiet enjoyment , . 89 Effect of this 89 In America, is generally a separate covenant 89 Is broken as soon as made 90 But when joined to covenant for quiet enjoyment, runs with the land . . 91 Distinction between this covenant and a covenant to discharge of incum- brances . . . . ^ 93 Lethbridge v. Mytton 94 Definition of incumbrance 95 What constitutes a breach of the covenant 96 Easements 100 Highways and roads 101 Kellogg V. IngersoU 101 Patterson v. Arthurs 102 Rights of water 107 Eights of light and air 112 Covenant qualified by nature of estate conveyed 113 What constitutes an incumbrance is a question of law 113 Rule by which to determine breach 11-1 Pleadings 114 Plaintiff must aver and prove the incumbrance 114 Damages should be laid with reasonable certainty 115 Known incumbrances should be excepted from the covenant 116 Purchaser's knowledge of incumbrance no bar to his recovery upon the covenant 117 CHAPTER VI. THE COVENANT FOR QUIET ENJOYMENT. Definition . . . . • 125 How limited 125 Effect of words " by, from or under " 126 " acts and means " 129 "default" 130 " means, title or procurement " 132 Covenant not broken by tortious disturbance 133 'Hayes v. Biclcerstaff 134 Exceptions : 1. It extends to all acts of the covenantor 135 , Curtis V. Deering criticised 138 2. It extends to all acts of a particularly named person . . 139 3. When intention appears to protect against all pretended claims ' 140 Covenant not broken by exercise of right of eminent domain .... 140 VIU CONTENTS. Nor by any other lawful acts of sovereignty 141 Broken in some cases by a suit in equity 143 Eviction necessary to constitute a breach 144 Actual eviction — 1. Need not be by process of law 144 The older cases in New York overruled 146 2. Where the dispossession is by entry 146 3. Where the possession is voluntarily surrendered 146 Paramount title must have been hostilely asserted 148 Purchaser assumes burden of proof 150 Constructive eviction — 1. By the inability of the purchaser to obtain the possession . . . 151 Holder !>. Taylor '. 151 Application of this to uncultivated lands 155 Outstanding title must be actually paramount 158 2. Where the covenantee compulsorily purchases or leases the para- mount title after its establishment by judgment 158 Suggested analogy to the rule which prohibits a tenant from dis- puting his landlord's title 159 Analogy fails as between vendor and purchaser 161 Waldron v. McCarty 161 No distinction between leasing and purchasing 167 3. Where the covenantee compulsorily purchases or leases the para- mount title without its establishment by judgment .... 168 Cases in which the whole question can be settled in equity . . 176 Distinction in this respect between covenants for quiet enjoy- ment and warranty, and those for seisin and against incum- brances 176 4. Where the loss is of something which represents the land, or of some incident to its enjoyment 181 Mitchell V. Warner criticised 181 Dobbins v. Brown criticised 184 Review of the cases upon the subject of eviction 191 Pleadings 192 Burden of proof is on plaintiff in the first instance 194 CHAPTER VII. THE COVENANT FOK FURTHER ASSURANCE. Advantage of this covenant •. 1 9g Its definition 195 Practice in England in requiring its performance 195 What acts are demandable under it : . 196 Acts must be necessary and practicable 196 Request must be made in reasonable time 197 Removal of incumbrance may be required 198 Purchaser's rights under this covenant depend — 1. Upon the scope- of the other covenants 198 2. Upon the nature of the estate conveyed 199 CONTENTS. IX Covenants not demandable in deed of further assurance itself 202 Pleadings 202 Breach 203 CHAPTER VIII. THK COTENANT OF WARKANTT. Distinction between this covenant and the ancient warranty 205 The covenant has no place in English conveyancing 206 Action of covenant could not be brought on ancient warranty . . . •. 208 Warranty may be construed as covenant if otherwise ineffectual .... 208 This covenant is generally synonymous with covenant for quiet enjoyment . 214 Breach 214 The covenant of non-claim 216 Definition of covenant of Warranty 217 Propriety of giving covenantor notice of paramount claim 219 Effect of such notice 219 What is proper notice 221 Had better be in writing 222 Upon whom burden of proof rests 228 Effect of the judgment where there is no notice ^ . 229 Notice not necessary to recovery 231 Review of cases upon the Subject of notice 233 CHAPTER IX. THE MEASUEE OF DAMAGES. Comparative scarcity of English authority 233 Damages relatively to increased value of the land 235 i Damages on covenants for seisin and against incumbrances measured by con- sideration-money 235 Staats V. Ten Eyck 235 Pitcher w. Livingston 236 On covenants for quiet enjoyment and of warranty 238 In some States measured by value of land at time of eviction .... 239 Gore V. Brazier 239 Weight of authority is that consideration-money forms the proper measure of damages 242 Review of decisions upon this subject 244 Distinction between a rise in value owing to improvements, and increase from other sources 246 Analogy to damages on writs of dower 247 Thompson v. Morrow 247 Between vendor and purchaser, the value of improvements cannot be re- covered 250 X CONTENTS. Aliter between lessor and lessee 251 Lock V. Furze 253 And improvements recoverable when they form part of the consideration . 266 Neither vendor nor purchaser concluded by the consideration clause . . 267 Where no consideration named, other evidence of value admitted . . . 261 How far damages can be recovered on a technical breach of the covenant for seisin 262 Doctrine that an after-acquired title will defeat the purchaser's action on the covenant for seisin 266 Objections to it 268 Tucker v. Clarke 274 Correct rule 275 Kecovery of damages sometimes held to reinvest the title in the covenantee 280 Upon partial breach of the covenant for seisin, purchaser must recover j)j'o tanto 283 But cannot rescind the contract 283 Upon partial failure of title, either party may produce evidence to prove the • relative value that part bore to the whole 284 Morris v. Phelps 284 Damages upon covenant against incumbrances 288 Nominal damages for technical breach 289 When incumbrance cannot be removed 291 When the incumbrance is an easement 291 a term of years 292 Plaintiff is entitled to recover amount actually paid 293 Provided it does not exceed the consideration-money 295 Dimmick v. Lockwood 295 Damages upon the covenant for further assurance 298 King V. Jones 298 Interest on the consideration-money is allowed as damages 300 When costs recoverable as damages 305 Smith V. Compton 305 Counsel ees when so recoverable 309 CHAPTER X. THE EXTENT TO WHICH COVENANTS FOB TITLE RUN WITH LAND, AND HEREIN OF THEIR RELEASE. Common-law rule prohibiting assignment of choses in action 313 No exception in case of covenants unless they were to be performed on or about land 313 Requisites to enable covenants to run with land 314 Effect of statute of quia emptores • 314 Distinction between the benefit and burden of covenants 815 Pakenham's case 315 Benefit and burden of warranty descended upon heir 318 Covenants for title after breach survive to executor 318 Until breach, all covenants for title run with the land 318 CONTENTS. XI In United States, covenants for seisin, right to convey and perhaps against incumbrances held to be broken as soon as made . _ 318 Aliter of covenants for quiet enjoyment, of warranty and for further assur- ance 319 Greenby v. Wilcocks 319 Sir Perall Brocas' case 320 Lewis ». Ridge 322 In England, all the covenants for title run with the land 324 Kingdon u. Nottle 324 Statutory provisions in Maine, New York, and Ohio 328 English rule adopted in Missouri, Indiana, Wisconsin, and Iowa . . . 333 In South Carolina, English rule applied to covenant against incumbrances 333 But in United States, weight of authority is that covenant against incum- brances does not run with the land 834 English practice in vesting benefit of covenants in purchaser 335 Covenantee may sue all prior covenantors and recover several judgments . 335 But can have but one satisfaction 335 Divisibility of covenants for title 336 Preston's opinion 336 Sugden's, contra 337 Liability of covenantor when estate is divided 337 Rule in Pennsylvania 838 Limitations as to liability of prior vendors 338 Kane v. Sanger 338 Booth V. Starr 839 Doctrine that the covenants pass with the legal estate applied to mortgages 341 Result in England and Kentucky 341 In most States, the covenants pass with the equity of redemption . . . 343 Where covenants pass with mortgage, mortgagor entitled to relief in equity 346 Thornton v. Court 346 Release of covenants after conveyance of land ineffectual against purchaser 348 Covenants extinguished when covenantor becomes reinvested with estate conveyed 349 Subsequent purchaser not bound by equities between covenantor and cove- nantee 850 Suydam v. Jones 350 But release of covenants by covenantee while owner of land bars subse- quent purchasers 852 . But not unless recorded 353 Right of assignee to sue in name of his assignor on covenants for seisin and for right to convey 357 Difficulty as regards covenant against incumbrances 359 Effect of release of covenant for seisin 369 Covenant of further assurance runs with the land until determinate damage suffered 361 In Maine, covenant of non-claim does not run with land 361 Doctrine that want of estate will deprive covenants of their capacity of running with land 362 Noke V. Awder 362 XU CONTENTS. Doctrine not obviated by operation of estoppel °"^ Weight of authority is that possession taken under deed carries benefit of covenants to assignee °"' Beddoe v. Wadsworth 367 Slater v. Kawson 369 Noke V. Awder explained 373 CHAPTER XL THE OPEEATION OP COVENANTS FOE TITLE BY WAT OE ESTOPPEL OB REBUTTEB. Effect of warranty by way of rebutter 375 Statutes of Gloucester and Henry VII 376 Effect of statute of 4 Anne upon collateral warranty 378 Its partial re-enactment in the United States 379 Difference between liability of heir to respond in damages upon his ances- tor's warranty and its effect as an estoppel 382 Nature of warranty as an estoppel 383 Operation of a feoffment, fine, common recovery or lease in passing after- acquired interests by estoppel 384 This result not caused by a grant or release 385 Nor by conveyances taking effect under the statute of Uses 386 Estoppel by recitals 389 Early New York decisions that such estoppel would be caused by deed without covenants . . .' 389 Subsequent decisions denying this 390 In United States, to pass estate by estoppel, deed must contain covenants 390 Statutory provisions in different States 391 Grounds upon which the doctrine is based 393 When no right of action on the covenants exists, no estoppel arises . . 393 In Maine and New York, no estoppel caused by covenant of non-claim . 393 Limitations of doctrine of estoppel 393 When covenants are restrained by the estate conveyed 393 satisfied by the possession transferred 395 extinguished 395 limited to acts of grantor 396 to specified claims 398 discharged by statute of limitations 398 When deed does not pass estate 399 After-acquired estate must be held in same right . .■ 399 Doctrine generally based on preventing circuity of action 401 Exceptions : 1. When question arises between the assignees of the differ- ent titles 401 2. In cases of married women 401 3. In grants from States 402 Contrary doctrine in North Carolina 403 4. When covenantor is bankrupt 403 CONTENTS. Xlll In Massachusetts, after-acquired title vests, though action on covenants barred by statute of limitations 404 What covenants will produce this effect of estoppel 404 Covenant of warranty 404 But not when implied from partition 406 Nor where estoppel is mutual 407 Nor when prohibited by statute 407 Covenant for further assurance passes estate in Illinois and Wisconsin . 407 Contra in Missouri and Minnesota 408 Covenant of good right to convey and quiet enjoyment pass subse- quent title 408 So of covenant of good right to convey and seisin 408 Covenant of non-claim creates no estoppel of itself 409 Nor when joined to covenant against incumbrances 410 In Illinois, covenants implied from "grant, bargain and sell" transfer after-acquired title 410 Contra in Missouri 410 Effect of transferring subsequent estate given to other covenants than technical covenants for title ^ . . . . 411 Doctrine reviewed and criticised 412 Passages of Littleton and Coke upon which it has generally been based . 413 Their explanation 413 Decisions can be rested on two grounds — 1. That covenants operate as personal rebutter 418 2. Or that effect is as if particular recital had been introduced . . . 418 Result of actually transferring after-acquired title 419 1. Between purchaser and grantor 419 Subsequent estate relates back to original conveyance .... 421 And would deprive vendee of option of recovering damages . . 424 Tucker v. Clarke 424 . Between purchaser and subsequent purchaser from the grantor . , 427 Is opposed to registry acts 428 Correct doctrine in Georgia and Minnesota 429 Doctrine in Pennsylvania 430 In England 437 Davis B. ToUemache ■ 443 Summary of authorities 445 Purchaser not estopped by covenants in his mortgage for purchase-money . 447 Estoppel by consideration clause 461 Estoppel not created by acceptance of estate 464 Sparrow v. Kingman 454 Unless purchaser has himself the valid title 455 Purchaser not estopped from denying accuracy of recital of title . . . 456 XIV CONTENTS. CHAPTER XII. IMPLIED COVENANTS FOR TITLE, AND HOW COVENANTS MAT BE LIMITED OR QUALIFIED. Implied warranty at common law : 457 Altered by statutes of de higamis and of quia emptores 459 Remedy upon implied warranty 460 Implied warranty did not run with the land 460 Express warranty not limited by implied warranty 460 Covenants implied from words of leasing 461 Or from relation of landlord and tenant 462 Unless when altered by statute 463 But covenants not implied in assignment of leasehold 463 -In parol leases, covenant for quiet enjoyment is implied 464 Doubtful if covenant of power to demise is implied 465 Distinction between covenants implied in feoffments and in leases . . . 468 In leases, express covenants restrain implied ones 468 Nokes' case 468 Aliter in feoifmenta 468 Implied covenants in leaseholds endure no longer than estate granted . . 469 Warranty implied from exchange 471 Implied from partition 473 Was implied from writ itself 473 At common law only coparceners had right to partition 474 Extended to joint tenants and tenants in common by statute of Henry VIII 474 Reason why warranty was implied in partition 474 American cases criticised 477 Covenants not implied from recitals 479 Warranty implied from dedi 480 " Statute of 6 Anne, by which certain covenants are implied from the words grant, bargain and sell 481 - Statute of 8 Victoria, prescribing short forms of covenants 482 Statute of Anne, partially re-enacted in Pennsylvania 484 In Pennsylvania, statutory covenants are limited 486 Gratz V. Ewalt ... 486 -■ In New York, no covenants implied by statute 488 Nor in many other States ' 488 Covenants implied by statute in Alabama 489 Arkansas 490 California 490 Delaware 491 Illinois 491 Mississippi. . 492 Missouri 493 Nevada 494 Virginia 494 CONTENTS. XV Effect of general warranty in Georgia 495 Indiana 495 Statutory covenants in Oregon 496 Iowa 496 How covenants may be limited or qualified 497 1. Restrictive words in first of several covenants having same object will qualify subsequent covenants 498 Browning v. Wright 499 But not if unlimited covenants have different object from limited covenants 606 Howell V. Richards 506 Duval V. Craig 507 Nind V. Marshall 609 2. Subsequent limited covenant will not restrain preceding general covenant, unless intention appear, or covenants are inconsistent 614 3. Preceding general covenant will not enlarge subsequent limited covenant 519 4. When covenants are distinct, restrictive words in one do not control generality of others 620 Covenants may be limited by express agreement 520 Reformation of covenants in equity 521 Covenants apply to premises in boundaries, not enumeration of acres . . 523 Covenants restrained by interest conveyed 624 But not unless such intention appears in deed 528 CHAPTER XIII. THE PARTIES BOUND AND BENEFITED BT COVENANTS TOR TITLE. Liability of the covenantor 632 Question when material in marshalling assets 532 How affected by bankruptcy 534 When joint or several 636 Liability of married women upon their covenants 637 When contained i& a fine 537 deed 538 Under statutes of Massachusetts and Iowa 639 New York 640 In equity as to their separate estate 540 Liability of the heir — In United States, mainly depends upon statute 541 At common law — 1. Must be expressly named 641 2. And have sufficient assets by descent 542 Statute of Westminster second 642 Remedy against the heir 543 No distinction between covenants and other specialties 543 Statute of fraudulent devises 544 Wilson V. Knubley 644 XVI CONTENTS. Farley v. Briant ^^ . Difference between English and American law as to liability of lands for payment of debts 5^5 Liability of the devisee — Not bound at common law by debts of testator 550 Statute of fraudulent devises 651 Wilson V. Knubley 661 Kecent legislation in England 552 Cases construing these statutes 552 Liability of the executor or administrator 554 Bound though not named in the covenant 564 And whether covenants are broken before or after covenantor's death . 654 Liability of the assignee 555 Never arises in conveyances in fee 566 But in conveyance of leaseholds, covenants binding upon assignee of reversion 556 Rights of covenantee 566 Depend on nature of covenant 556 Upon covenants broken as soon as made, presumption of satisfaction from lapse of time runs from date of deed 557 Upon other covenants runs from breach 557 Joint and several covenants 657 Construction depends upon interest conveyed 657 , Slingsby's case 657 Preston's opinion, contra 558 Recent cases in Exchequer 569 Result of the authorities 560 Coparceners must sue jointly 560 Tenants in common may sue separately 660 Rights of heir and devisee 661 Upon warranty, heir could not sue unless named 561 Aliter in covenants for title which run with land 661 But not if breach occurs during lifetime of covenantor 662 Rights of executor or administrator 663 Are entitled to benefit .of covenants of which decedent could have taken advantage 563 So of covenants broken before his death 663 Rights of assignee — Could not take advantage of warranty implied from dedi 663 Aliter from words concessi or demisi 663 Can take advantage of covenants without being named 664 CHAPTER XIV. THE PUECHASEK's RIGHT AT LAW TO EBCOVEE BACK OR DETAIN THE PUECHASE-MONEY AFTER TH EXECUTION OF THE DEED. Distinction between executory and executed agreements 565 Connection between purchaser's right to relief and covenants for title . . 566 CONTENTS. ZVU In absence of covenants, purchaser can neither detain nor recover back his purchase-money . 66,7 Except in cases of fraud or concealment 568 Cases in the House of Lords 669 Edwards v. McLeay 669 Small V. Attwood 671 What constitutes fraud . .■ ' . . . . 574 Simplex commendalio non dbligat 676 Distinction between suppressio veri and allegatio falsi 676 Purchaser's right to relief depends solely on his covenants 681 Common-law rules as to settling cross demands 683 How affected by statutes of bankruptcy and set-off 683 Doctrine of set-off 584 Based on ground of preventing circuity of action 585 Common-law rule as to conclusiveness of consideration 585 How modified in the United States ■. 586 Purchaser's rights as plaintiff must be asserted in an action of covenant . 586 As defendant, purchaser sometimes allowed to detain purchase-money . . 587 Purchaser without covenants wholly without remedy 688 What constitutes consideration for the purchase-money 588 Mere absence of title no defence to payment of purchase-money .... 589 Aliter if there has been an eviction 589 Distinction in this respect between covenants for seisin and for quiet enjoy- ment and warranty 690 Early case in New York that purchase-money could be detained before eviction 591 Frisbee v. Hoffnagle 591 This doctrine overruled 692 Greenleaf v. Cook 692 Later New York cases 594 Result of New York authorities 597 Doctrine generally held in United States 698 • In Mississippi 600 In Alabama 603 CuUum ». Bank at Mobile 603 In Wisconsin ' 606 In Minnesota 607 But where eviction has occurred purchaser is relieved 607 So where he is obliged to purchase outstanding title 609 Doctrine in South Carolina 611 Earlier cases modified 611 Furman v. Elmoi-e 611 Gray c. HarMkinson 612 Result of the authorities 612 Doctrine in Texas 613 Distinction between law and equity abolished 613 Cooper V. Singleton 616 Result of the authorities 617 Peculiar doctrine in Pennsylvania 618 Dorsey v. Jackman 618 h XVIU CONTENTS. Not wholly dependent upon presence of covenants 619 Steinhauer v. Witman "1" Result of doctrine . . . _ 620 Purchaser may defend by reason of defect, unless he was to run the risk ""^ Application of rule — 1. Where defect or incumbrance is unknown 623 What must be its character 624 What will be deemed notice to purchase 627 Constructive notice not sufficient • 628 2. Where there is known defect or incumbrance and no covenant 628 In case of defect of title, absence of covenant raises pre- sumption that purchaser assumed risk 629 Although such presumption not conclusive 631 But in case of pecuniary incumbrance no such presumption arises 632 Wolbert v. Lucas 632 This decision explained 635 Does not apply when security is given after notice is acquired 636 3. Where there is covenant against known defect or incumbrance 637 Purchaser cannot detain purchase-money unless covenant is broken 638 Bound to perform his engagements when his knowledge and state of facts continue the same as at time of con- veyance 638 Wilson V. Cochran 641 Result of doctrine 642 Rights of purchaser upon a sale on ground-rent 644 Is entitled to defend from payment so long as incumbrance exists 645 In case of eviction rent apportioned pro tanto 645 CHAPTER XV. THE JURISDICTION OF EQUITY AS TO COVENANTS FOB TITLE. Remedy at law for breach of contracts 648 Remedy in equity 648 Lord Cairns' Act 648 Its construction *. 649 Sir John Rolfs Act 649 Specific performance — Origin of doctrine as to real estate 650 When applied to chattels 651, re. Option of recovering damages should rest with covenantee .... 651 Of covenant to build 652 Of covenant for further assurance 652 CONTENTS. XIX Specific performance — Sometimes enforced on principles of quia timet 652 Ranelagh ». Hayes 662 Cases must not receive too broad an application 653 Relief not granted on mere apprehension of damages 654 Tallman v. Green 664: Of covenant for further assurance 666 Disposition of courts of equity to enforce 666 Illustrations of doctrine 667 Will not enforce covenant when effect is to enlarge grantee's title 668 In administering assets 669 Will enforce covenants whether voluntary or not 659 Williamson v. Codrington 659 Giles V. Roe 660 Hervey v. Audland 661 Grantee is entitled to prove as a specialty creditor .... 660, n. Cox V. Bernard 661 Hales V. Cox 662 American cases 662 But, unless in marshalling assets, equity will not specifically enforce voluntary covenants 663 JeiFerys v. Jefferys '. 663 Ward.!;. Audland 664 Nor in such cases will contribution or exoneration be decreed . . . 665 Averall v. Wade 666 Stock V. Aylward 665 Ker V. Ker 666 Injunction — At suit of covenantee 674 Unless purchaser has present right to damages, equity will not interfere, either — 1. To restrain coUeotion of purchase-money 674 Bumpers v. Plainer , 676 Abbott V. Allen 676 Johnson «. Gere 675 Overruled 676 New Jersey cases 677, re. 2. Or to rescind the contract 681 Noonan v. Lee 681 Local practice in Virginia 682 Knowledge of incumbrance bars relief 683 But where purchaser is entitled to damages equity relieves .... 684 Illustrations of doctrine 684 Statutory provisions in Missouri . . . 688 Prosecution of paramount title combined with insolvency or non-resi- dence of vendor sufficient to grant relief 688 But insolvency or non-residence without prosecution insufficient . . 691 Except when all parties are before the court 693 XX CONTENTS. Reformation — By reason of fraud or mistake """ Difficulty is in sufficiency of proof 697 Coldcot V. Hill 697 Distinction between doctrines enforced in equity and at law .... 702 Illustrations of doctrines 702 Decision under code abolishing such distinction 704 INDEX TO CASES CITED. Abbotts). Allen 58, 63, 82, 83, 84, 263, 667, 676, 677, 683, 693 Abby V. Goodrich 349 Abercrombie v. Baldwin 73 V. Owings 616 Aberdeen v. Blackmar 290 Abernathy v. Boazman 71, 73 Ackerly v. Vilas 268, 606, 607, 681 Adams V. Gibney 466, 469, 556 V. Ross 394,'415 Aiken v. Sanford 40 Aldrich v. Codper 272, 534 Aldridge v. Burlison 538 Alexander v. Crosbie 698 V. Gibson 48 V. McCauley 668 V. Schreibner 281, 348, 361, 358, 360, 493, 497 Alfrey V. Blackamore 203 Allen V. Addington 673, 577 V. Cameron 684 V. Gault 478 V. Holton 526, 627, 528, 631 V. Hopsbn 568 V. Lee 120 121 V. Little 329, 341 V. Pegram 568, 600 V. Roundtree 227 V. Say ward '395, 409, 469 V. Winstow 43 V. Wooley 366 Allison V. Allison 209, 214 Almy V. Hunt 97 Amonett v. Amis 392 Anderson v. Arrowsmith 302 (}. Burnett 675 «. Hill. 576 V. Knox 294 V. Lincoln 681 V. Martindale 668 569 Andrew v. Pierce 364 666 Andrew's Case 467 Andrews v. Beeker 367 V. Eddon 196 Andrews v. McCay V. Paradise «. Wolcott V. Word PAGE 490 144 343, 346 ' 37,41 Anglo-Danubian Co. v. Rogerson 660 Anonymous 99, 128, 197, 619 Anson v. Lee Appleton V. Binks Archer's Case Armiger v. Purcas Armstead v. Hundley Armstrong v. Darby Arnold v. McNeill Astor V. Miller Athens v. Nale Atherton v. Atherton Atkins V. Bahrett Attwood V. Small Atwood V. Vincent Att'y-Gen. v. Morgan V. Purmort Aufricht v. Northrop Auwerter v. Mathiot Aven V. Beckom Averall v. Wade Averill v. Wilson Ayer v. Austin B. 68 49 17 364 573 200, 494, 669 349 337 215 647 42 307, 571, 576 697 44 515 122 622 43, 50 439, 533, 665 160, 464 86 Babcock». Case 676, 577 J). Wilson 42 Baber v. Harris 264, 462 Bacchus V. McCoy 57, 237, 329 Bach V. Miller 310 Bacon v. Lincoln 79, 82, 85 Badeley v. Vigurs 338 Bailey v. Miltenberger 103, 141, 186 V. Moore 635 V. Scott 293 Bain v. Fothergill 234 Baker v. Bulstrode 196 V. Corbett 293 V. Dewey 268 V. Hunt 84, 86, 641 xxu INDEX TO CASES CITED. Baldwin v. Munn 252 289 293 Ballard v. Ballard 108 V. Child 527 Bally V. Wells 181, 189 Bandy v. Cartwright 464, 466 Banister v. Henderson 378 Bank V. Mersereau 282, 405, 427 Bank of United States v. Bank of Georgia ' 567 Banks v. Ammon 627 V. Walker 679 V. White 464, 467 V. Whitehead 154 Barber ». Backus 591 Barclay v. Raine 201 * Barkhamsted v. Case 681 Barley ». Walford 573 Barlow v. McKinley 100, 117 Barnard v. Duncan 43, 46 Barnett v. Montgomery 154, 310, 655 Barney v. Keith 462 Barns v. Learned 260 Barrow v. Bispham 41 Bartlett v. G-reenleaf 27 V. Tarbell 600 Barton v. Fitzgerald 511, 512 V. Morris 392 Bartram v. Whichcote 473 Basford v. Pearson 79, 539 Bashore v. VVhisler 622 Bass V. Ware 142 Basten v. Butter 583, 593 Batchelder v. Sturges 98, 99, 116, 119, 251, 288, 291, 292, 293 Bates V. Delavan 679 V. Foster 459, 527 V. Norcross 380, 381 V. West 535 Bath V. Bradford 543, 660 Batterman v. Pierce 684, 591 Bauskett v. Jones 624 Baxter v. Bradbury 57, 266, 267, 278, 392, 404, 421, 423, 427 V. Ryerss 341, 463, 467 Bayard v. McLane 68 Beach v. Miller 100, 106 V. Packard 258 V. Steele 41 V. Waddell 682, 683 Beale v. Seiveley 668, 681, 682 Beall «. Taylor 542 Bean v. Herrick 576, 576, 577 V. Mayo 96, 289 V. Welsh 393, 411, 423 ■ Bearce v. Jackson 56 Beardsley v. Knight 366 Beauohamp v. Damory 287 Beaupland v. McKeen 286, 623, 625, 627 Beaurdaux». Cave Beck V. Simmons Beckmann v. Henn Beddoe v. Wadsworth 615 682 84 58, 321, 367, 368, 369, 371, 563 Beebe v. Swartwout 134, 148, 168, 456, 682, 689 Beidelman v. Foulk 630 Belcher v. Sikes 614 Belden v. Seymour 50, 259, 624 Belding v. Pitkin 70 Bell V. Henderson 575 V. Higgins 213 V. Twilight 397 Bellas V. McCarty 433, 549 Bellel V. Bellel 233 Belmont v. Coman . 122 Bemis v. Smith 164 Bender v. Fromberger 82, 219, 227, 234, 235, 238, 242, 281, 486, 487, 506, 617 Benner v. Evans 248 V. Phillips 547 Bennett v. Bartlett 635 V. Jenkins 242, 300, 309 V. Waller 392, 407 V. Womack 39 Bennett's Case 196 Bensley v. Burdon 386, 389, 437 Benson v. Benson 643 Benton v Reeds 803 Bergin v. McFarland 549 Bermingham v. Burke 652, 653 Bertram v. Curtis 101 Betts V. Union Bank 258 Bickford v. Page 88, 114, 321 Bigelow V. Finch • 160 V. Hubbard 97 V. Jones 240 Biggus V. Bradly 613 Bingham v. Weiderwax 258, 269, 276, 424, 425, 426 Bird V. Smith 83, 360, 567 Birney v. Haim 634 V. Hann 353 Birtwhistle v. Vardill 73 Biscoe V. Perkins 42 Bissell V. Erwin 240 Bitner v. Brough 234 Bivins V. Vinzaut 429 Black B. Barton 621 V. Grilmore 469, 462 Blaokmore v. Shelby 425 Blaekwell v. Nash ■ 360 Blain v. Taylor 98 Blair v. Claxton 609 V. Rankin 463 u. Smith 455 Blake v. Burnham 281, 303 INDEX TO CASES CITED. xxin Blake v. Everett 100, 114 t). Tucker 392, 404 Blakely v. Brady 664 Blanchard v. Blanchard 97, 154, 285 V. Brooks 892, 394, 525, 527, 528 V. Ellis 271, 277, 281, 422, 425, 426 V. Hoxie 82, 84, 192, 283, 285 Blasdale v. Baboock 227 Blatchford u. The Mayor of Plym- outh .132 Bledsoe v. Rogers 68 Blicke V. Dymoke 202, 203 Blight V. Rochester 160 Blin V. Pierce 357 Bloss V. Kittridge 465 Blossom V. Knox 243 v. Van Court 97 Blydenburgh v. Cotheal 148, 214, 321 -Board of Commissioners u. Younger 574 Bodlcy V. MeChord 37 Bole V. Horton 9, 11 BoUes V. Beach 451 Bolton V. Johns 258 Bond V. Bond 271 ^ V. Ward 227 Boniton v. Chester 451 Booker v. Bell 209, 219, 227, 228, 230, 243 Bool V. Mix 80 Boone v. Eyre 597 Booth V. Starr 94, 145, 323, 339, 367, 549 Boothby v. Hathaway 57 Bordeaux v. Cave 612, 615 Bordewell v. Colie 167 Boston K. Worthington 218 Bostwick V. Williams 215, 216 Bottorf V. Smith 281, 332 Boulney v. Curteys 198 Bowen v. Thrall 38, 685, 689 Bowman v. Taylor 389, 447 I). Wathen 68 Bowne v. Potter 453 Bowyer v. Ravitt 548 Boyd V. Armstrong 547 V. Bartlett . 115 V. Bopst 618 0. Whitfield 219, 221 Brackenridge v. Dawson 43 Bradburne v. Botfield 658, 659 Bradford v. Long 655 V. Potts 640 Bradley v. Chase 578 V. George 534 V. Georgia 668 Bradshaw's Case 82, 202, 320 Brady v. Spurk 84, 289, 297, 321 Bragg V. Wiseman 470 Braman v. Bingham 289 Brandt v. Foster 63, 293, 300, 568, 584, 609, 611 Branger u. Manoiet 135 Breck v. Young 60, 63 Breckenridge v. Moore 68, 71, 72, 73 Bree v. Holbeck 567, 570, 619 Brice v. Brice 577 Brick V. Coster 134, 625 Bricker v. Bricker 208, 212, 460, 509 Bridger v. Piersou 150 Brigham v. Smith 396 Bright V. Boyd 246 Brimmer v. City of Boston 108, 141 Brinley v. Whiting 68 Briscoe v. King 205 Bristow V. Bristowe • 203 Britton v. Turner 684 Brocas' Case 139, 320, 327 Brook V. Southwiok 600, 617 Brooks D. Fowle 678 ■0. Hamilton 573, 575 V. Moody 115, 289, 290, 293, 691 Broughton v. Conway 504, 506 Brown v. Brodhead 293 t). Brown 497, 621 V. Cannon ' 41 V. Dickerson 160, 162, 168, 172, 177, 242, 644 V. Gammon 41 V. Haywood 458 u. Jackson 394 V. Manning 574, 600 V. McCormick 405, 432, 435 V. Manter ' 418 V. Metz 343, 349, 353 V. Staples 122, 351, 852, 407, 460, 461 u, Starke 41 U.Taylor 219, 220, 222,. 223 V. Tomhnson 496 Browning u. Crisman 673 V. Wright 30, 37, 65, 193, 458, 459, 480, 499, 501, 508, 604, 605, 506, 613, 514, 515, 517, 519, 523, 699 Brundred v. Walker 892 Bryan v. Smallwood 288 Buchanan v. Alwell 682 Buck V. Babcock 68 u. Binninger 556 Buckels V. Mouzon 229 Buckhurst's Case 566 Buckingham v. Hanna 899, 419 XXIV INDEX TO CASES CITED. Buckley v. Nightingale V. Williams Buell V. Tate Bull V. Willard V. Wiott Bullard v. Briggs Bumpus V. Platner Bunny v. Hopkinson Burbank v. Gould V. Pillsbury Burchard v. Hubbard Burdon v. Reeds Burhans v. Van Zandt Burk V, Clements Burke v. Beveridge V. Nichols Burnett v. Lynch Burr V. Todd Burrell v. Jones Burroughs v. McNeill Burrus v. Wilkinson Burton v. Reeds V. Schermerhom Burwell v. Jackson Busby V. Littlefield V. Treadwell Bush V. Bradley V. Cooper V. Keller Bustard's Case 287, Butler D. Gale V. Miller v. Seward V. Slam V, Swinertou Butman ». Hussey Byrnes ». Rich 542 193 599 666 405 258 676, 693 238 258 98, 121, 462 399, 400 425 172 270, 293 266, 423, 430 79 464 300 49 653 165, 535 275 610 42, 567, 676 118 681, 684, 691 155 403, 492, 535 672 458, 472, 474 104, 105, 118 568 32, 418 647 133 567 261 Cabot V. Christie 573 Cadogan v. Sloane 664 Cadwalader v. Tryon 35 Cain V. Henderson 618 Calder v. Chapman 431, 435, 447 Caldwell v. Bower 178 V. Kirkpatrick 39, 154, 215 Calthorp V. Heyton 143 Calvert v. Sebright 32, 127, 625, 629 Campbell v. Whittingham 676 Candler v. Lunsford 403 Cane v. Allen 293 Cannon v. White 668 Carbrey v. Willis 109 Careswell v. Vaughan 14^ Carleton v. Tyler ^ 636' Carlisle u. Blamire 341 Carnahan v. Hall 623 Carpenter v. Bailey 41 V. Parker 128 V. Schermerhom 402 538 V. Thompson 407 Carr v. Roach 566, 567 V. Roberts 94 Carrington v. Goddin 68 Carter v. Carter 612, 615 V. Denman 91, 95 ,97. 115, 321, 384 Carthrae v. Browne 568 Carver v. Jackson 889 402 Carson v. Godley 464 Gary v. Daniel 108 Case V. Boughton V. Erwm 686 96 Casey M. Lucas 682 Cashion v. Faira 477 Caswell V. Wendell 287 240 Catesby's Case 205 Cathcart v. Bowman 101 Catlin V. Hurlburt 61, 69 281 Caulkins v. Harris 300 Cavau V. Pulteney 131 Cave V. Brookesby 185 Cavis V. McClary 341 Cawdor v. Lewis 246 Chace V. Hinman 290 Chairs v. Hobson 68 Chamberlain v. McLurg 688 V. Meeder 403 686 V. Preble 218 223 225 Chambers v. Pleak 169 V. Smith 331, 494 588 657 v. Wright 647, 554 Charaley v. Hawsbury 431 Champion v. Brown 653 Chaniplain v. Dotson 685 Champlin v. Laytin 673 Champness v. Johnson 213 Chandelor v. Lopus 67§ 685 Chandler v. Marsh 610 Chapel u. Bull_ 67, 270, 298, 297, 298 Chaplain v. Briscoe 600 V. Southgate 140 Chapman v. Derby 683 V. Holmes 88, 210, 219, 821 V. Robertson 73 Chase V. Weston 340, 348, 699 V. Woodbury 584, 668 Chastain v. Staley 43 Chauvin v. Wagna 878, 397, 402, 408, 411 Chegan v. Young 462 Cheiney v. Langley 469 Chesterman v. Gardiner 679 Chew V. Barnet 418, 431, 438 Childs V. McChesney 402 Chipman v. City of Hartford 670 INDEX TO CASES CITED. XXV Christine v. Gotwalt 480 V. Whitehill 459, 623 Christmas v. Oliver 384 Christy v. Ogle 293, 312 V. Reynolds 634, 642 Chudleigh's Case 17 Church V. Brown 23, 31 Churchill j>. Hunt 94 City of St. Louis v. Bissell 219, 293 Claggett V. Hall 258 Clanch V. Allen 216, 490 Clanrickard v. Sidney 601, 524 Clanton v. Burges 681 Clapp V. Coble 159, 171 V. Tirrell 268 Clark V. Baker 388, 889, 392, 447 V. Carrington 227 V. Cleghorn 690 V. Conroe 78, 154 V. Hardgrove 683 V. Johnson 349 V. Lyons 38, 40 V. Martin 434 V. Parr 237, 242, 300 V. Perry 98, 289 V. Redman 38, 41 V. Scudder 534 V. Snelling 699 V. Swift 290, 321, 334, 358, 360, 557 Clarke v. Baird 675 V. Faux 666 V. McAnulty 69, 76, 82, 147, 184, 214, 259 V. Samson 458 Claycpmb v. Hunger 164, 231 Clee V. Seaman 466 Cloak V. Harper 464 Cloake v. Hooper 151 Clowes V. Dickinson 272 Clute V. Robinson 40, 41 Coakley v. Chamberlain 640, 648 Coates V. Collins 512 Coble V. Wellborn 145 Cockell V. Taylor 68 Coe V. Harahan 31 V. Persons 396 V. Talcott 50 Coger V. McGee 269, 700 Coit V. McReynolds 68, 63, 81, 321 Colby V. Gadsden 578 V. Osgood 198, 329 Colcord V. Swan 401, 538 Coldoot V. Hill 621, 697, 698, 699 ' Cole V. Albers 258 V. Hawes 516 V. Justice 605 V. Lee 164, 169, 180, 217, 524 V. Raymond 381, 404 Coleman v. Coleman V. Hart I). Rowe V. Sherwin Coles V. Kinder 173 566 681 537 202 Collier v. Gamble 58, 282, 358, 493 Collingwood v. Irwin 119, 219, 224, 229, 260 Collins V. Blantern 71, 585 V. Crouch ■ 555 V. Evans 573 V. Stutely 649 V. Torry 453 Colvin V. Schell 311, 566, 631 Colwell V. Hamilton 41, 625 Combs V. Tarlton 279, 303 Comer v. Chamberlain 225 Comings v. Little 289, 293, 536, 558 Commissioner v. Pearson 616 V. McClanachan 568 Commonwealth v. Andre 52, 402 V. Pejebscut 52, 402 Comstock V. Comstock 62, 78 V. Smith 392, 394, 396, 398, 406 Concord Bank v. Gregg 574, 679 Condrey v. West 667, 610 Conner !). Beam 290 V. McMurray 399 Connor v. Eddy 451, 600 Cook V. Coombs 120 V. Field 68 V. Jackson 617 V. Mix 587, 591 Cooke V. Towns 55, 56, 530 Cooley V. Rankin 682 Cooper V. Bigly 533, 668 V. Denne 42 V. Cranberry 349 V. Singleton 616 V. Watson 219 Copeland v. Copeland 122 Coras V. 206 Corbin v. Healy 415, 526 Cordwent v. Hunt 350 Cornell v. Jackson 67, 64, 285, 356, 422, 423, 618 Cortelyott v. Van Brundt 80 Coster V. Manufacturing Co. 61 V. Monroe 686, 687 Cotton V. Ward 269, 423 Cottrell V. Cottrell 47 Coughron v. Swift 672, 673 Cowan V. Shields 857 V. SilUman 265 Cowdrey v. Coit 166 Cox V. Barnard 661 V. Henry 242, 269, 297, 801, 311, 566 XXVI INDE? TO CASES CITED. Cox M. King 544 V. Strode 219, 230, 235, 237, 243, 305, 310 Crabtree v. Levings 45 Craddock v. Stewart 50 Cragg V. Richardson 220, 221 Craig V. Hopkins 667 Crawford v. Murphy 625 Crayford v. Crayford 520 Cresson v. Miller 35, 68 Cripps V. Read 32, 567 Crisfield V. Storr 237, 243, 311, 557, 561 Crist V. Hodges 152 Crittenden v. Craig 574 Crooker v. Jewell 348, 357 Cross V. Robinson 343, 449, 451 V. Noble 99 Crosse V. Young 99, 135, 136 Crossfield v. Morrison 513 Crouche v. Fowle 213, 464 Crowder, Ex paHe 45 Crowninshield v. Robinson 584 Crum V. Loud 614, 616, 523, 701 Crump V. Lord 497 Crutcher v. Stump 214 Cuddee t). Rutter 649, 651 Culler V. Motzer 624 CuUum V. Bank at Mobile 603, 606, 691 Cully V. Doe . 75 Cumber v. Wane 350 Cumming v. Cumming 533, 668 Cummins.M. Kennedy 164, 237; 267 Cunningham v. Fithian 579 V. Knight 348, 349, 360 V. Sharp 41 Curd V. Dodds 538 Curry v. Lyles 258 Curtis t>. Deering 137, 138, 139, 154, 186, 410, 461, 609 V. Hutton 73 V. Spitty 337 Cushman v. Blanchard 67, 64, 239 Cuthbertson v. Irwing 367, 373 Cutler V. Bower 598 V. Davenport 73 Cutter V. Powell 585 V. Waddingham 455 D. Dale V. Roaevelt Dalzell V. Crawford Danforth v. Streeter Daniel w. Mitchell Davenport v. Bartlett Davie v. Sacheverell Davies ». Churchman V. Tollemache 673 42 68 673 163 137 543 199, 200, 443, 656, 668 Davis «. Atkins 524 V. Darrow 453 V. Heard 219, 224, 227, 673, 574 V. Henderson ' 41 «. Keller 392, 404 V. Logan 165, 230, 696 V. Lyman 289, 293, 321, 355, 502 V. McVickers 610 V. Sims 135, 243, 245, 644, 575 V. Tarwater 28, 490 Davy V. Pepys ' 642, 544, 643 Dawson v. Dyer 27 Day V. Brown 57, 489 V. Chism 152 V. Nix 584 Deakins v. Hollis 459 Deal V. Dodge 587 Dean v. Shelly 472, 473, 538 Dearborn v. Cross 360 Dearth v. Williamson 41 Decharms v. Horwood 560 Decker v. Caskey 889 Deering v. Farrington 469 De Forest v. Leete 114- Delavergne v. Norris 288, 289, 293 Delmer v. McCabe 525, 530 Demaret u. Bennett 617, 684 Den V. Brewer 389 V. Desmarest 538 • V. Forsythe 415 V. Geiger 71 V. Young 415 Denio v. Heath 609 Denn a. Cornell * 402 Dennett ». Atherton 129, 143, 469 Dennis v. Heath 148, 154, 230, 601, 602 Denny v. Wickliffe 696 Denston u. Morris 679 Dentler v. Brown 626 Derby u. Jones 395 Desha v. Robinson 584 Detroit R. R. Co. v. Criggs 688 Dexter v. Manley 132, 194, 264, 268, 269, 291, 462, 464 ». Nelson 68 Devin v. Hendershott 345 Devore ». Sunderland 67, 330 Devour v. Johnson 230 Dewitt V. Eldred 10 Dewolf u. Haydon 392 Dickens v. Shepperd 285 Dickerson u. Talbot 392, 427, 404 ' Dickinson u. Hall 6O8 V. Hoomes 37, 337 357, 367, 369, 372, blO, 642, 662 INDEX TO CASES CITED, XXVU Dickinson K. Voorhees 172, 178, 628 Diclison V. Desire 242, 294, 330, 370, 494 Dimmick ». Lookwood 296, 296, 297, 298 Dix V. Sohbol District 600 Doane v. Willcutt 395, 397, 401 Dobbins v. Brown 103, 141, 178, 182, 186, 188, 190, 191, 216 Dobell V. Stevens Dodd V. Seymour Dodds V. Toner Dodge V. Tileston Doe V. Barton V. Cassidy V. Errington V. Evans V. Hays V. Hiscooks V. Hull V. Jones V. Keeling V. Lynes v. Martyn V. Oliver V. Pott M. Prestwidge V. Scarborough V. Stanion V. Whitehead Dominick v. Michael Donaldson v. Donaldson Donelson v. Weakly Donnell v. Thompson Donohoe v. Emery Dorchester v. Coventry Doremus v. Bond Dorr V. Fisher Dorsey v. Cassaway V. Dashiell ■0. Jackman Dougherty v. Duvall Doughty V. Bowman Douglass V. Scott Doupe V. Genin Dow V. Lewis Downer v. Smith Doyle V. Coburn V. Knapp V. Peerless _ Drake v. Baker Drew V. LoM V. Towle Drinker v. Byers Drury v. Improvement Co. V. Shumway V. Tremont Duchess of Kingston's Case 675, 576 41,48 609 684 159 349 889, 447 68 73 697 75 384 484 54 68,75 386, 389 888 438 385 42 415 399, 402, 638 664 574 97, 119, *164, 165, 260, 265 58, 271, 536 248 610 584 403 94 620, 626 337 666 420, 427, 429 136, 137, 463 44, 51, 460 78, 300 405 667 448 234 442- 147, 303, 309, 600 631, 632 350 216, 239 122 67,68 Dudley v. CadweU 392, 404, 427 V. FoUiott 136, 142 Duff V. Wilson 218, 227, 231, 307, 464 Duke of Somerset v. Cookson 661 Dummer v. Birch 114 Duncan v. Blair 120 V. Lane 601 V. McCuUough 638 Dunklee v. Wilton 95, 109 Dunn V. Snell 357 V. White 117, 121, 603, 604, 605 Dunnica v. Sharp 88 Dunseth v. Bank Dupuy V. Roebuck Durell V. Pritchard Durham v. Day Duval V. Bibb 248 149, 164 649 430 258 V. Craig 50, 82, 114, 164, 163, 507, 609 665 34, 38, 41 43 410 103, 141 543 DuvoU V. Wilson D wight V. Cutler Dwinel v. Veazie D'Wolf V. Hayden Dyer v. Wightman Dyke v. Sweeting E. Eardley v. Owen Earl of Bath v. Earl of Earl Poulett v. Hood Earle v. De Witt 667 V. Middleton Earley v. Garrett Eastman v. Wright Eaton V. Lyman ». Tallmadge Eby V. Eby Eccleston «. Clipsam Eddington v. Nix Eddleman v. Carpenter Eddy V. Traver Edwards v. Appelbee V. Bodine V. Brown V. McLeay u. Morris V. Roys Ela V. Card Elder v. True Elliott V. Boren V. Heath V. Merryman V. Thompson Ellis V. Nimmo ». Welch Ellison V. Ellison 644 Bradford 643, 660 47 ', 568, 586, 600 241 576, 577 357 224 293, 606 41 568 682 398 532 656 678, 679 594 669, 571, 580 681 71 283, 300 270, 272, 298 349 584 47 241, 681 664 140, 162, 397 664 xxvm INDEX TO CASES CITED. Elysville Man. Co. v. Okisko Co. 268 Fitch V. Seymour Emerson v. Proprietors 215 Fite V. Doe Engel V. Fitch 234 Fitzer v. Fitzer English V. Benedict 574 Fitzhugh V. Croghan Ennis v. Leach 43 V. Tyler Eshelman v, Hoke 378 Fitzpatrick v. Hearne Espy V. Anderson 35 Fleming v. Gilbert Estabrook v. Hapgood 333 V. Harrison V. Smith 96 164, 260, 608, 621 Fletcher v. Button V. Coleman Evans V. Dendy 612 Flight V. Cook V. Sanders 637 Flint V. Steadman V. Vaughn 127 , 194 Floom V. Beard Eveleth v. Crouch 462 Flureau v. Thornhill Everson ». Kirtland 40 Flynn v. Williams Everts V. Brown 216 Foley V. Addenbrooke Ewins V. Calhoun 673 V. Cowgill Exall V. Partridge 179 Follettu. Grant FoUiard v. Wallace Folts V. Huntley F. Foord V. Wilson Foote V. Burnet 67, 64, Fain v. Ayers 201 210, 213, 242, 289, Fairbanks u. Williamson 216,217, 361, Ford V. Walsworth 392 ,393 ,409 447 Forster v. Gillam Fairbault v. Sater 673 V. Fuller Faircloth v. Jordan • 430 Fortescue v. Barnett Falconer v. Clark 567 Foss V. Stickney Falls V. Dickey 691 V. Strachn Falmouth v. Tibbatts 638 Foster v. Kennedy Fanning v. Stimpson 462 V. Mapes Faries v. Smith 213 489 V. Pierson Farley v. Briant *5U 552 653 , V. Thompson Farnham v. Hotchkiss 697 698 V. Woods Earns worth v. Garrard 684 Fowle V. Welsh Farrer v. Nightengal 286 Fowler v. Poling 68, Farrington v. Barr 268 Farrow v. Mays 611, 612, 613, 614 V. Shearer Fox V. Frensch Fausset v. Carpenter 439 443 V. Mackreth Feather v. Strohoecker 474 V. Widgery Feemster v. May 41 601 610 Franchot v. Leach Fergus v. Gore 543 660 Franciscus v. Eeigart Ferguson v. Dent 524 Franklin v. Carter Feriss v. Harshea 148 230 V. Dorland Ferrar v. Ferrar 698 Frazer v. Skey Ferrell v. Alder 220 V. Tunis Field V. Snell 322 349 853 669 Freeman v. Foster Fielder v. Studley 522 699 V. Lomas Fields V. Hunter 230 French v. Spencer . V. Squires 196, 337, 371, 398, Friedley v. Scheetz . 496 537 658 Frink u. Bellis 332,591, Finley v. Simpson V. Steele 462 ' 486 491 Frisbee ». HofFnagle Finn V. Sleight 454 Fritz V. Evans Fisher v. Salmon 609 Frontin v. Small V. Worrall 94 Frost V. Earnest Fitch V. Baldwin 63, 81, 108, 281, 456, 466 V. Raymond 458, Fuhrman v. Loudon 108, 449 68 121 60, 63, 74, 80 389 103, 142 350 37 42 401, 638 653 300 82 234, 253 381 558 675 67 134 141 499, 603 116, 163, 207, , 296, 330, 336 349 35, 634 49 664 271, 281 404, 408 674 139 114, 144, 193 242, 303 122 140 147, 167, 177, 216, 369, 687 401, 638, 587 622 574, 677, 638 396, 454 694 644, 645 169 398 193, 464 643 122 683 389, 447 61, 622 , 594, 595, 597, 699 603, 606 547 468 140, 193 462, 468, 667 628, 631, 639 INDEX TO CASES CITED. XXIX Fuller V. Seymour 48 V. Wright 97 Fulweiler v. Baugher 311 Funk V. Cresswell 146, 160, 176, 180, 192, 218, 496 V. Newcomer 392 V. Voneida 114, 116, 117, 118, 293, 487 Furguson v. Dent 480 Furman v. Elmore 212, 213, 241, 613 Furness v. Williams 466, 696 ' G. Gadsden v. Bank of Georgetown 811 Gainsforth v. Griffith 497, 498, 499, 605, 614 Gale V. Edwards 98, 122, 621 V. Gale 42 V. Reed 604 Galton V. Hancock 643 Gamble ». Collier 296 Gannard v. Eslava 648 Gano V. Vanderveer 467 Gans V. Renshaw- 671, 626 Garard v. Lantz 626 Gardner v. Keteltas 134, 136, 154 V. Greene 455 V. Niles 94 Garfield v. Williams 68, 266, 321 Garlock v. Closs 367 Garrett v. Cresson 627 V. Stuart ' 268 Garrison v. Moore 645, 646 V. Sandford 321 Garson v. Godley 464 Gartman v. Jones 681 Gaunt V. Wainman 464 Gay V. Hancock 682 Gayle v. Price 463 Gazley v. Price 40, 41, 42 Gee V. Moore 396 V. Phan 451, 459, 489 George v. Putney 150, 159 V. Wood 634, 668 Gervis v. Peade 500, 605 Gibbs V. Thayer 216, 392 Gibson v. Bell 683 V. Choteau 389, 411, 447, 494 «. Colt 48 V. D'Este- 671, 679 !>. Goldsmid 653, 657 Gifford V. Ferguson 600 Gilbert v. The Turnpike Company 221 V. Wiman 290 Gilchrist v. Buie 39, 41 Giles V. Comstock 169 V. Dugro 101, 285, 291 Giles V. Roe 543 660 Gilkeson v. Snyder 624 Gillam V. Briggs 611 Gillespie v. Moon 697 Gillett V. Rippon Gilman v. Haven 307 461 Ginn V. Hancock 101 107 Ginnette v. Chouteau 259 Glasscock v. Minor 679 Gleason ». Smith 135 Glenn v. Thistle 608 V. Whipple 678, 681, 687 Glinniston v. Audley • 82 Gochenour v. Mowry 393, 404 Goddin v. Vaughn 37, 41, 43 Godley v. Taylor 60, 549 Godson V. Smith 265 Good V. Good 645, 646 V. Mylin 636 Goodel V. Barnett • 353 Goodhill V. Brigham 24 Goodright v. Forester 64 Goodson ». Beacham 395, 418, 430, 432 Goodtitle v. Alker 80 V. Bailey 386, 389 V. Morse 886 V. Morgan 886, 388 Goodwin v. Morse 584 Goodwyn v. Taylor 227 Gore V. Brazier 146, 209, 239, 247, 274, 646, 609 Goucher ». Helmbold 623 Gough V. Bell . 392 V. St. John 673 Gould V. Boston' 109 Gouldsworth v. Knights 364 Gouverneur B. Elmendorf 667, 679, Graff V. Smith 646 Gragg V. Richardson 810 Graham v. Alsopp 159 u. Meek 401 V. Tankersly 219, 230 Granger v. Collins 465, 468 Grannis v. Clark 213 462, 464 Grant v. Tallman 297 Grantland u. Wight 43, 683 Gratz V. Ewalt 486, 488, 489 490, 492 Graves v. Mattingly 50 V. Leathers 71,72 Gray v. Briscoe 66, 63, 205, 234, 283, 287 V. Cox 593 V. Handkinson 612, 614 Great Falls Co. v. Worster 428 Green v. Biddle 246 V. Campbell 691 V. Clark 392 V. James 864 XXX INDEX TO CASES CITED. Green v. McDonald 681 u. Tennant 248 Greene v. Creighton 29, 90, 91, 291 Greenleaf w. Cook 692, 593, 601 V. Queen 682 Greenly v. Wilcocks 63, 134, 145, 319, 821, 831 Greeno v. Munson 159 Greenvault v. Davis 145, 147, 148, 150, 156, 214, 259, 351 Greenwood v. Ligon 41 V. Tiber 537 Gregory v. Mayo 56 V. Scott 610 Grenelefe v. W 205 Grice i>. Scarborough 91, 98, 99, 117, 119, 121 Gridley v. Tucker 587 Griffin V. Fairbrother 67, 214, 341 «. Orman 668 V. Reynolds 285 ». Sheffield 402 Griffith V. Harrison 91 V. Kempshall 666, 576, 677, 679 Grimes w. Redmond 473, 525 Grist V. Hodges 145, 321, 563 Griswold ». Allen 182 V. Bigelow 646, 550 Grout V. Townsend 402 Guerard v. Rivers 236, 241 Guild V. Guild 311 Guion V. Knapp 633, 668 GuUey «. Grubbs 258 Gunter e. Williams 164, 349, 541 Guthrie v. Pugsley 288, 300 Gwynn «. Thomas 197, 203 H. Hacker v. Blake 263 ». Storer 320 Hadduck v. Wilmarth 68 Hadley v. Baxendale 291 Haffey v. Birchetts 148 164, 241, 662 Hagler v. Simpson 128, 145 149 Haight V. Hayt 569 Hains v. Gardner 453 Haire v. Baker 116, 118 704 Hale V. James 248 249 V. New Orleans 240 Hales ■«. Cox 662 Hall V. Chaffee 395 V. Dean 91 180, 289 293 V. Gale 78, 263 606 v. Martin 642 647 550 V. Plaine 329 v. Priest 681 Hallett V. Middleton 201 Ham V. Ham 393, 409 Hamblin v. Bank of Cumberland 453 Hamilton u. Cutts 146, 148, 149, 150, 162, 170, 219, 227 V. Elliott 63, 280 «. Wilson 276, 321 Hammatt v. Emerson 673 Hammond v. Hannin 234 ■0. Toulmin 534 Hamond v. Hill 131 Hancock v. Carlton 451 Hand v. Armstrong 108, 142 Hannah v. Henderson 165 Hanson v. Buckner 147, 280, 243 Harbert's Case 642, 543 Hardey v. Nelson 239 Harding v. Larkin 164, 309, 819, 372 Hardy v. Nelson 451 Hare ». Burges 44 u. Cater 837 Harlow v. Thomas 107, 117, 119, 121, 259, 291, 294 Harmer v. Morris 398 Harper v. Burgh 461 V. Jeffries • 624, 626 V. Perry 845, 346 Harriman 8, Gray 361, 393, 409 Harrington v. Long 68 V. Stratton 584 Harris v. Goodwyn 350 V. Morris 567 V. Newell 265 V. Ransom 681 V. Tyson 677 Harrold v. Whittaker 560 Hart V. Baylor 237, 305 V. Porter 621, 623, 625, 629, 680 V. Thompson 642 Hartley v. McAuulty 268 Hartman v. Lee 382, 642, 647 Harvey «. Alexander 268 V. Doe 73 Harwood v. Benton 110; 111 Haskill V. Sevier 103, 142 Hassam v. Dompier 692 Hastings v. Webber 63 Hatcher v. Andrews 97, 98, 691, 696 Hatton V. Waddy 653 Haverington's Case 97, 99 .Hawk V. McCuUough 491 Hawkes u. Orton 153 Hawkins v. Freeman 683 Hayden v. Mentzer 268 Hayes v. Bickerstaff 27, 76, 134, 192 V. Tabor 392 Haynes v. Colvin 547 V. Stevens 104, 309, 449, 460 Hazard v. Irwin 673 INDEX TO CASES CITED. XXXI Heath V. Newman 601, 609 u. Whidden 820, 360, 557 Hedges v. Kerr 37,48 Hellier v. Gaspard 461 Helps V. Hereford 884, 386 Helvenstein v. Higgason 605 Hempsted v. Easton 402, 538 Henderson v. Hackney 430 V. Hay 89 V. Henderson 97, 258, 293 V. Overton 418 Hennicker v. Turner 560 Henning v. Withers 241 Henry v. Elliott 681, 684 Herbert v. Ford 584, 588, 599 Heron v. Treyne 196 Herrick v. Moore 104, 289 Herrin v. McEntyre 341 Herrod v. Blackburn 528 Herron u. De Bard 617 Hersey v. Turbett . 643 Hertzog v. Hertzog 244, 246 Hervey v. Audland 544, 661 Hesom u. Smyth 610 Hesse v. Stevenson 497, 498, 514, 517, 518, 523 Hext u. Morgan 615 Hiern v. Mill 565 Higdon V. Thomas 258 Higginbotham v. Cornwell 543 Higgins V. Johnson 663 Hill V. Butler 600 V. Davison 678, 681 V. Hobart 41 V. Eessegieu 33, 42, 47 v. West . 401 Hinde v. Gray 464 Hinds u. Allen 219 Hines D. Robinson 398 Hingen v. Payn 203 Hiscotks V. Hiscoc^s 697 Hitchcock V. Harrington 453 u. Giddings 673 Hitchins v. Lander 68 Hoag V. Ratbbun 679 Hobbs V. King 353, 407, 588 Hobein v. Drevvell 609 Hobson V. Middleton 45 Hodges V. Connor 612 V. Saunders 43, 666 Hodgson V. East Island Co. 198 Hogan ». Calvert 94 Hogins V. Plympton 465 Holden V. Fletcher 404 V. Pike 272 Holder V. Taylor 151, l62, 212, 213, 464, 468 Holeridge v. Gilespie 172 Holman v. Creswell 33 Holman v. Johnson 73 Holmes «. Sinnickson 241,810 Homer v. Purser 605 Hooker v. Folsom 599 Hoot V. Spade 284 Hope V. Stone 395, 408 Hopkins w. Grazebrook 234 Hopkinson ». Lee 243, 558, 569 Hopper V. Demarest 402 V. Lutkins 686 Hoppes V. Cheek 135, 680, 689, 692 Hopps V. King 402 Horback v. Gray 688 Hosford V. Nichols 78 V. Wright • 289 Houghtaling v. Lewis 566 Howard v. Doolitle 134, 464 B. Witham 699 Howe V. Harrington 48 ». Walker 120 Howell V. Richards 61, 55, 63, 77, 126, 497, 506, 609, 511 Howes V. Bai-ker 259, 666 V. Brushfield 130, 131 Hovey v. Newton 555 Hoy V. Taliaferro 148, 230, 591, 600, 609 Hoyt «. Dimon 392, 404 V. Thompson 66 Hubbard v. Apthorp 528 V. Jasinski 672 V. Norton 104, 117, 283, 291, 451 Hughes V. Bennet 520 V. Williams 666 Hulfish V. O'Brien 678, 681 Hulme V. Tenant 31, 540 Hulse V. White 241 Humphrey v. Phinney 248 Humphrys u. Knight 283 Hunt V. Amidon 148, 166, 167, 177, 179, 337, 586 V. Danvers 143 V. Moore 576 V. Orwig 851 V. White 660 Hunter v. Daniel 68 V. Graham 611, 614 V. Jameson 48 V. O'Neil 41 Hunting v. Sheldrake 551 Huntingdon v. Grantland 674 Huntly V. Waddell 459, 524 Hupp V. Hupp 693 Hurd V. Gushing 415, 626 ■«. Fletcher 126, 127 V. Hall 293 Hurn V. Soper 268 Hutchins ». Moody 91, 97 xxxu INDEX TO CASES CITED. Hutchinson ». Stiles 647 Hyatt ». Seeley 33, 47 Hyde V. Canons of Windsor 470 I. Iggulden V. May Ingalls V. Cooke V. Morgan IngersoU v. Hail V. Sergeant Ingram v. Morgan Innes v. Agnew V. Jackson Ireland v. Bircham Irish V. Johnston Irvine v. Irvine Ischam v. Morrice Island R. R. v. Conklin Ives V. Niles 219, V. Van Epps 461, 499 129, 451 690 144 314, 644 683, 689 489 198 126, 503 462 393, 408 390, 397 448 281, 638, 642 585 Jack V. Dougherty Jackson v. Barringer V. Bradford 393, 258 623 404, 410, 433 u. BuU 389, 390, 397 V. Defendorf 623 V. Demont 71 ■u. Given 430 V. Hathaway V. Hoffman 399 80 400, 528 V. McConnell 523 V. Marsh 226 V. Mills 399 V. Murray V. Sassaman 389 390, 397 98 V. Turner 241 V. Vanderheyd V. Waldron 3n 402, 538 420 V. Winslow 392, 404 V. Wright Jacock V. Gilliam 211 390, 405 212, 418 James v. Emery V. Litchfield 560 100, 112 V. Lawrensburg V. McKernon 691, 699 693 V. Patterson 160 Janes v. Jenkins 111 Jaques v. Esler 121 677, 693 Jarvis v. Aikens 427, 429 V. Buttrick 98 Jeffereys v. Jeffereys Jeffers v. Johnson 663, 664 290 Jefferson v. Morton 545, 662 Jefferys u, Bucknell Jemison v. Blowers Jenkins «. Briant V. Hopkins 168, V. Robertson Jenness v. Parker Jennings v. Norton Jerritt v. Weare Jeter u. Glenn 91, 97, Jewell V. Porter Joeckel v. Easton Johnson v. Farlow V. Gere 676, V. Houghton V. Irby V. Johnson V. Jones V. Long V. Monell V. Nyce V. Proctor V. Purvis V. Simpson V. Smock V. Veal V. Viscon V. Wyatt Johnston v. Piper Johnstone v. Hall Joice V. Taylor Jones V. Barkley V. Brodie V. Clark V. Davis B. Gardner V. Kearney 419, V. King 318, 326, V. Ryde V. Stanton i). Waggoner ». Ward V. Worly Jordan v. Twells Jourdan v. Jourdan Joslyn V. Taylor Judson V. Wass Juvenal v. Jackson 885 535 643, 652, 653 289, 299, 360, . 557 462 688, 599 94 64,75 213, 310, 334, 489, 612 392, 404 466 398 , 677, 678, 687 668 357 667 ' 681 617 122 164, 174, 175 460, 480 612, 616 280 41 613 213 649 88, 673 484 573 350, 499 549 169 96 40 432, 439, 440 392, 404, 406 567 688, 691 219, 689 258 136 193 210, 379, 380 41, 42 40 640, 644 K. Kane v. Sanger Kaye v. Waghorne Kean v. Strong Keeler v. Wood Keenan v. Gibson Keith V. Day 388, 339 360 468, 480, 608, 520 308, 309 547 121, 356, 628 INDEX TO CASES CITED. XXXUl Kekewich ». Manning 664 Kelley v. Jenness 399 Kellogg V. IngersoU 101, 102, 103, 104, 106 V. Robinson 98 V. Wood 351, 392, 451, 524 Kelly V. Allen 689 V. Low 115, 164 V. The Dutch Church 134, 193, 219, 228, 242, 252 Kemp ». Sober 484 Kenada v. Gardner 160 Kendall v. Brown 415 Kennebeck v. Call 155 Kennedy v. Gouveia 49 V. McCartney 393, 404, 407 V. Newman 85, 114 V. Skeer 385, 433 Kennison v. Taylor 309 Kent V. Welsh 460 V. Chalfant 49 Ker V. Ker 533, 666 V. Kitchen 618, 628, 640 Kercheval v. Triplett 399, 413 Kerr v. Shaw 145, 146, 155, 156 Kerrison v. Cole 71 Key t). Henson 600 Kibler v. Cureton 611 Kidder v. West 144 Kidney ». Stoddard 577 Kilmer v. Wilson 448, 624 Kimball v. Schoff 216, 392, 395, 404, 407 Kimpton v. Walker 461 Kincaid v. Brittain 63, 267, 280 King V. Kerr 163, 164, 174, 831, 242 V. Gilson 266, 267, 392, 410, 422 V. Gunnison 622 V. Jones 198, 202, 203, 219, 298, 318, 324, 335, 361, 562, 667 V. Norman 230 V. Pile 242, 286 Kingdon v. Nottle 264, 318, 3"24, 326, 331, 561, 562 Kingman v. Sparrow 454 Kingsbury v. Smith 309 Kingston v. Preston 499 Kingston's Case 265, 375, 423, 465 Kinnear v. Lowell 122 Kinney v. McCuUough " 187 V. Watts 242, 244, 252, 463 Kinsman v. Loomis 389 Kip V. Brigham 227 Kirby v. Hansaker 193 Kirkendall v. Mitchell 38, 57 Klopp V. Moore 50 Knapp V. Lee 587, 699, 607 Knapp ». Marlboro 193, 462 Kneightley v. Watson 658, 559 Knepper v. Kurtz 148, 167, 178, 487 Knickerbocker v. Killmore 525 Knipe v. Palmer 44, 49 Knox V. Jenks 67 Koger V. Kane, 682 Kolls V. De Leyer 541 Kortz V. Carpenter 145, 162, 153, 156, 163, 368 Kruse v. Scripps 523 Kunckle v. Wynick 461 Kutz V. McCune 110 Kyle V. Fauntleroy 300, 301, 310, 663 V. Kavanagh 36, 48 Lamar v. Simpson 388 Lamb v. Danforth 107, 560 Lamerson v. Marvin 691, 696, 698 Lampet's Case 66, 313, 385 Lampon v. Corke 258 Lancaster v. Dolan 432 Landman v. Ingram 121 Landes v. Perkins 465 Landydale v. Cheyney 463 Lane v. Berry 377 . V. Drinkwater , 558 Langworthy v. Smith 350 Lanier v. "Hill 674 Lanig v. Fidgeon 693 Lansing v. Van Alstyne 146 Large v. Penn 623 Lassels v. Catterton 202 Latham v. Morgan 681, 691 Lathrop v. Atwood 94 Lattin v. Vail 691, 594 Laughery v. McLean 568 Lawless V. Collier 262, 281, 282, 294, 300, 302, 368 Lawrence v. Dole 41 V. Montgomery 321, 491, 561 ». Senter 349 V. Stonington Bank 610 Lawry v. Williams 392, 404 Leary v. Durham 39, 146, 148, 164, 165 Leather v. Poulteney 219, 227 Leavitt v. Savage 360 Lee V. ColehiU • 71 V. Dean 234, 246, 285, 686, 627 V. Foard 41 !>. Rook 653 Leffingwell v. Elliott 169, 289, 309 Legge V. Croker 580 Leggett V. McCarty 678, 679, 682 XXXIT INDEX TO CASES CITED. Legh V. Legh 357 Leland v. Stone 119, 260, 285, 423 Leonard v. Bates 610 Le Ray de Chaumont v. Forsyth 341 Lethbridge v. Mytton 94, 323, 653 Levintsky v. Canning 28 Levit V. Witherington 117 Levitzky v. Canning ' 135, 309 Levy V. Bend 136 Lewers v. Earl of Shaftesbury 649 Lewis V. Baird «. Campbell ». Cooli V. Jones V. Lewis V. Morton V. Kidge V. Smith Liber v. Parsons Liddell v. Sims Lienow v. Ellis Lighty V. Shorb 395, 418 194, 235, 364 334, 348, 369 80 80, 165 682 319, 321, 322, 323 134 236, 241 610 534 618, 620, 622, 630, 631, 632, 634, 635, 638, 639, 683 Linderman v. Berg 2] 9 Lindley v. Dakin 78 Line v. Stephenson 213, 464, 468, 492 Linsey v. Ramsey 430 Little V. Bishop 68 V. Paddleford 41 Littlefield v. Getchell 349, 354 Littleton v. Richardson * 218 Livingston v. Peru Iron Co. ' 71 V. Proseus 71 Lloyd V. Parrell 35, 622 V. Jewell 687, 588, 591, 695, 699, 608 ». Lloyd V. Quimby 32, 437 117, 270, 346 V. Tomkies 135, 136 Lobdell V. Baker 673 Lock ». Furze 234, 253, 254, 255, 256 Lockridge v. Foster Lockwood V. Gilson 574, 579 60 V. Sturdevant 32, 61, 283, 345 Logan V. Moore V. Moulder 392 237, 243, 321 V. Steele 392, 404 Lomas v. Wright London Bridge Acts, In 544, 553 re 46, 47 Long V. Allen V. Israel 610 682, 683 V. Moler 97, 119, 121 Long Island R. R. v. Conklin 524 Loomis V. Bedel 147, 154, 163, 169, 170,, 172, 242 V. Pingree 361, 393, 397, 409, 410 Lord V. CoUey 673 Lord V. Goddard Loriek v. Hawkins Lot V. Thomas 82, 281: Lothrop V. Snell Loudon V. Robertson Lougher v. Williams Lovell V. Sherwin Lovering v. Lovering Lowell V. Daniels V. Parker Lowry ». Brown V. Hurd Loyd V. Griffith Luckett V. Triplett V. Williamson Lucy V. Levington 318, Ludlow V. Gilman Ludwell V. Newman Ludwick V. Huntzinger Lukens v. Jones V. Nicholson LuU V. Stone Lyde v. Mynn Lytle V. State M. 673 624 , 321, 449, 451 217, 600 61 561 543, 660 462 402, 638 229 36, 568 607 33,45 685 41 319, 321, 322, 323 681 152 566, 622, 624, 625, 629 636 138, 186 531 417 68 McAllister v. Reab 684 McAlpin V. Lee 97, 176, 262, 284, 293, 309, 584 McBurney v. Cutler McCall 1). Coover McCarthy v. Leggett 63 McCleanachan ». Curwin McClowry v. Croghan McClure v. Gamble 242, 337 McConnell v. Downs McCoy V. Lord MeCrady v. Brisbane McCrea' v. Purmort McCullough V. Cox McDaniel v. Grace McDonald v. Green McDowell u< Hunter McFerran v. Taylor McGary v. Hastings McGehee v. Jones McGinnis v. Noble McGoodwin u. Stephenson McKay v. Carrington McKee v. Pfout McKennan v. Doughman 119 McKenzie v. City of Lexington 385 McKinney v. Watts 282, 669 389 433 266, 276, 321, 422 103 242, 470 338, 555, 561 164, 219 179 333, 334 179, 258 595, 698 609, 611 681, 682 148, 230 673, 674 164, 243, 293 682, 689 626 342, 343 610 417 INDEX TO CASES CITED. XXXV McKleroy v. Tulane 89 McKnight V. Kellett 586 McLean v. Barton 679 McLeUan v. Hill 649 McLemore v. Mabson 606, 689 McMullaii V. Wooley 100, 154 NcMurphy v. Minot 341 McNear v. McComber 284, 300, 627 McWilliams v. Nisly 431 Mabie v. Matteson 50 Mace V. Wells 536 Mack V. Patchm 242, 255, 256, 463 Mackey v. Collins 82, 165, 213, 241, 611, 613 Macklot V. Dulreuil 465 Maeder v. City 138, 186, 462, 465 Magaw V. Lothrop 625 Magee v. Hallett • 402 V. Mellon 60 Magill V. Hinsdale 169 Magwire v. Riggin 380, 494, 635, 636 Maigley v. Hauer 269 Major V. Brush 699 V. Dunnavant 286 Maner v. Washington 611, 682, 692 Maney v. Porter 568 Manifee v. Morrison 61 Mann v. Lent 684 V. Pearson 624 V. Ward 458 Manning v. Cox 367 Manser's Case 196 Markham v. Middleton 265 Marklaud v. Crump 834, 341, 367 Mario w v. Smith 42 Marsh V. Rice 400 Marshall v. Craig * 350 Marston v. Hobbs 56, 57, 82, 83, 84, 114, 209, 237, 257 Martin v. Atkinson 169, 243 V. Baker 63, 331, 332 V. Cowles 219 V. Dwelly 402, 588 V. Foreman 600 V. Gordon 259, 351, 353, 367, 370 V. Long 287 V. Martin 143 V. MeNamara 601 V. Pace 68 Mason v. Caldwell 60 V. Crosby 678, 574 V. Ham 60 V. Muncaster 893 Massey v. Craine 80 Massie v. Sebastian 892, 401, 404, 427 Masson v. Bovet 679 Master v. Miller . 867 Mather v. Trinity Church 166 Maule V. Ashmead 462, 464 V. Weaver 462 Maundrell v. Maundrell 24 Maxfield v. Bierbauer 681 May V. Taylor 350 V. Wright Mayfield v. Barnard 241 142 Mayo V. Babcock 116 Mayor of New York v. Mabie 136, 136, 463, 464 Mayor of Poole v. Whitt 169 Mead v. Fox 40, 41 V. Johnson 48, 673 Means v. Brickell 616 Mecklem v. Blake 84, 332 Medbury v. Watson 117, 120, 856, 573 Meeker v. Meeker 258 Meeks v. Bowerman 134, 135 Mellen v. Boarman 50 Melley v. Casey 122 Menard v. Massey 402 Mercer v. Hall 584 Mercerow v. Dowson 387 Merrill v. Frame 462, 468 Merritt v. .Closson 469 V. Hunt 681 Messent v. Reynolds 465 Metcalfu. Putnam 118,523,703 Metcalfe v. Archbishop of York 417 Michael v. Nutting _ 68 Middlebury College v. Cheney 892, 404 Middlekauff u. Barrick 567, 681 Middlemore v. Goodale 198, 348, 352, 363 Middleton v. Arnolds 68, 71 V. Thompson 150, 219, 224, 227 Midgett V. Brooks 28 Midgley v. Lovelace 560 Mildmay's Case 6 Miles V. Williamson 667 Miller v. Argyle 682 V. Avery 230, 678, 679 V. Ewing 216, 894, 410, 586 V. Fraley 36 V. Halsey 154, 270 V. Heller 602 V. Long 681 V. Owen 681 V. Parsons 196, 203 Mills V. Auriol 461, 462, 634 u. Bell 241 V. Catlin 61, 78, 114, 283, 291, 293, 629, 685 V. Ladbroke 560 Milner v. Plorton 516, 617 Milnes V. Branch 314 Miner v. Clark 160, 219, 221, 222, 223 XXXVl INDEX TO CASES CITED. Misner v. Granger 677 Mitchell u. Hazen 41, 50, 237 V. Petty 392 41. Pillsbury 97 V. Smith 70 V. Warner 95, 100, 107, 181, 182, 321, 326 V. Woodson 393 Moak V. Johnson 252 Mobley v., Keyes 41, 610 Moens v. Heyworth 573 Moffat V. Strong 159 Moggridge v. Jones 584 Monahan v. Colgin 259 Mondel «. Steel 684, 586, 596 Monte Allegre, The 51 Moore v. Bank 41 V. Lanham 213 V. McKie 259 I). Magrath 526 V. Parker 381 V. Bake 392, 404 V. Shelly 625 V. Vail 149, 164, 157, 158 V. Weber . 134 Morgan v. Boone 172 V. Hunt 117, 143 V. Richardson 684, 591, 593 V. Smith 41, 101, 107, 114, 122, 589, 610, 685 Morrice's 'Case 318, 477 Morris v. Buckley 642 V. Edgington 144 V. Harris 460, 477 V. Leake 71 V. Owens 624 V. Phelps 63, 281, 282, 284, 286, 287, 627 V. Rowan 219, 241, 310 v. Smith 646 Morrison v. Beckwith 678, 693 V. Jewell 688 V. McArthur 79, 283 V. Wilson 392 Morse v. Faulkner 438, 439 V. Goddard 159 V. Shattuck 259 V. Tucker 553 Mortimer v. Shortall 698 Moseley v. Hunter 115 Mosher v. Mosher 248 Moss V. Gallimore 159 Mostyn v. Fabrigas 634 Mott V. Palmer 63 Mountford v. Catesby 133, 142 Moyer v. Shoemaker 586 Munroe v. Pritchett 573 Murphy v. Lockwood 39 V. Price 50, 164 Murphy v. Richardson 628, 629, 638, *^ 640 Murray v. Jayne 188, 858 Muscot V. Ballet ; 82, 206 Musser v. Oliver 556 Musson V. May 543 Myers v. Craig 381 N. Naglee v. Ingersoll 160, 193 Nance v. Elliot 668 Napier v. Elam 676 Napper v. Allington 201 Nash V. Ashton 80, 87, 88, 197 V. Palmer 139 ■V. Spofford 401, 638 Nelson V. Harwood 402, 538, 657 V. Mathews 241, 286 Nervin v. Munns 65 500 Nesbit V. Brown 243, 366 V. Montgomery . 365 V. Tredennick 172 New Barbadoes Co. v. Vreeland 42 Newcomb v. Presbrey 216 Newkirk v. Cone 68 Newton v. Osborn 461 Nichol V. Alexander 277 Nicholas V. Jones 51 Nichols V. Nichols 72 V. Walter 237 Nick V. Edwards 890 Nieto V. Carpenter 402 Nind V. Marshall 509, 610, 511, 513 Nixon V. Carco 448 V. Hyserott 48 Noke V. Awder 206, 862, 365, 370, 371, 372, 873, 374 Nokes V. James 134 Nokes' Case 451, 468, 460, 492 Noonan v. Hsley 263, 275, 426 V. Lee 68, 135, 154, 681, 693 Norcum v. Gaty 392 Norman v. Cunningham 192, 819, 382 V. Foster 506 Norton v. Baboock 96, 240, 270, 272, 298 V. Herron 49 V. Jackson 600 Nosier v. Hunt 268, 265, 600 Nunnally v. White 402, 538 Nutting V. Herbert 260 Nyce V. Obertz 176, 283 o. O'Bannon v. Paremour 893 INDEX TO CASES CITED. XXXVll Obbard v. Betham 593 Ogilbie V. Foljambe 124 Ohling V. Luitjens 682 O'Keefe v. Kennedy 135, 136 Oldfield V. Stevenson 699 Oliver v. Piatt 36 O'Neil V. Vanderburg 402 Onslow V, Londesborough 39 Ormrod v. Huth 673 Osborn v. Nicholson 103 142 Osborne v. Atkins 334 634 V. McMillan 48, 60 Osgood V. Osgood 290 Osterhout v. Shoemaker 160, 454 Oswald V. McGehee 574 Otter V. Lord 442 Outram v. Moorewood 265 Overhiser v. McCoUister 282 332 Overstreet v. Dobson 97 Owen V. Thomas 194 P. Page V. Broom 44, 46 V. Hill 160 Pakenham's Case 814, 315, 316, 317 Palmer v. Ekins 364, 373, 390 V. Sparshott 660 Pargeter v. Harris 342, 364 Parham v. Randolph 574, 576 Parish V. Whitney 98, 104 Park V. Bates 164, 219, 220, 239, 268 V. Cheek 258, 282 Parker v. Brown 60, 62, 280 V. Dunn 145 V. Harvey 543, 660 V. Parmalee 40, 41, 42 V. Richardson 126 Parkins v. Williams 684 Partridge v. Bere 343 V. Hatch 300 V. Patten 217, 361, 393, 409, 410 V. Strange 66 Pate V. Mitchell 265, 294 Patterson v. Arthurs 102, 103, 104, 106, 112 V. Hulings » 584 V. Lanning 478, 479 V. Moore 321, 415, 436 V. Pease 392, 399 V. Stewart 289, 300 V. Taylor 682 Patton V. England 606 u. Kennedy 140 V. McParlane 147, 176, 179, 214 V. Taylor 693 Paul V. Frost 349 V. Witman 167,184, 219, 221, 222, 226, 229, 230, 238, 660, 661 Paxson V. LefFerts 214, 379 Payne v. Craft 547 Peabody v. Phelps 667, 600 Pearson v. Davis 241 D. Morgan 576 Pease v. Christ 99 Pecare v. Chouteau 524 Peck V. Hensley 160, 630 V. Smith 80 Peden v. Moore 684, 603 Peirsoll v. Elliott 670 Pelletreau v. Jackson 390, 418 Pember u. Mathers 653 Pence v. Duvall 140, 243, 321, 663 Penfield v. Clark _ 42 Penn v. Lord Baltimore 542 V. Preston 624 Penning v. Plat 206 Pennsylvania v. Simms 625 People V. Society 403 Peques v. Mosby 610 Perall Brocas' Case 139, 320, 327 Percival v. Hurd 681, 682, 689 Perkins v. Webster 523 V. W'illiams 117 Porley v. Baloh 684 Perrot v. Austin 564 Perry v. Cotes 616 V. Edwards 140 Pet V. Gaily 197 Peters v. Earnsworth 48 V. Grubb 182, 189, 507, 514 V. McKeon 242 V. Myers 97 Pettee v. Hawes 334 Petts V. Gaw 523 Phelps V. Decker 71, 73, 516, 587 V. Kellogg 411 V. Sawyer 69, 74, 164, 168, 228 Philips V. Everard 44 V. Smith 242 Phillips V. Clagett 357 V. Evans 103, 141 V. Mayor 468 V. Reichert 261, 284, 287, 288 Phoenix Ins. Co. v. Eiquet 591 Piatt V. Oliver 413 Pickering v. Bush 48 Picot V. Page 477 Pierce v. Brew 97 V Emery 442 V. Johnson 58, 321, 360, 567 V. Milwaukee 393, 407, 418 Piggot V. Earl ■ 390 Pike V. Galvin 217, 361, 392, 393, 404, 409, 410, 427 xxxvm INDEX TO CASES CITED. Pike V. Goodnow Pillsbury v. Mitchell 451 114, 116, 289, 321, 332 Pimm V. Insall 546 Pinoombe v. Rudge 16, 185, 208, 209, 210, 212 Pintard v. Martin 579 Pitcher v. Livingston 24,34, 171, 211, 234, 236, 238, 246, 289, 309 Pitkin V. Leavitt 219, 220, 227, 229, 308, 309 121 550 568, 678, 679, 680 135 643, 654 544, 550 343 624, 626, 634 63, 81, 82, 85 212, 382, 418 289, 599 Pitman v. Conner Flasket v. Beeby Piatt V. Gilchrist Playtor v. Cunningham Plumer v. Marchant Plunkett J). Penson Poillon V. Martin Poke V. Kelly Pollard V. Dwight Pollock V. Speidel Pqmeroy v. Burnett V. Drury 42 V. Partington 218, 305 Pomfret v. Ricroft 181, 213 Pool V. Pool 32 Poole V. Hill 560 Pope V. Biggs 169 Porter v. Bradley 99, 291, 393, 638 V. Hill 280, 281 V. Noyes 41, 97, 260 V. Ralston 142 V. Sullivan 217, 455 0. Swetnam 461 Portington's Case 7, 10 Potter V. Kitchen 84 V. Potter 392, 448 V. Taylor 122, 321, 628 Poulett V. Hood 47 Poulton V. Lattimore 584 Powell V. Clark 523 V. Edmunds 120 V. Lyles 489 V. Manufacturing Co. 248, 249, 250 V. Monson 96 Power V. Standish 653 Powers V. Dennison 79 Powis V. Smith 660 Poyas V. Wilkins 68 Poyntell v. Spencer 147, 167, 168, 642, 643 Preble v. Baldwin Prescott V. Hobbs V. Trueman V. White V. Williams Prettyman i>. Wilkey 452 828, 348 58, 59, 95, 289, 291, 321 100 101, 108 491 Prevost V. Gratz Prewit ». Kenton Price V. Ayres V. Neale Pringle v. Witten Pritohard v. Atkinson Proctor V. Johnson V. Newton V. Thrall Prosser v. Edmonds Pryor v. Wood Puckett V. McDonald Pudsey v. Newsam Pugh V. Chesseldine Pulsifer v. Hotchkiss Pusey V. Pusey Pye V. Daubuz Q. Quarles «. Capell Quesnele v. Woodlief Quivy V. Baker 682 219, 230 683 667 63, 213 104 555 193 359 68 343 678 202 41 684 651 656 543 624 398 E. Radcliff V. Ship 147, 148 Raines v. Calloway 285 Ralston v. Miller 682 Randall v. Rigby 314, 664 Randell v. Mallett 289 Randolph v. Kinney ' 866 V. Meeks 154, 214 Ranelagh v. Hayes 662 Rant V. Cock 460 Rantin v. Robertson 134 Rathbun v. Rathbun 392, 404 Rawlins v. Timberlake 681, 692 Rawlyn's Case 385, 390, 418 Raymond v. Fitch 318, 662 V. Holden 402 V. Raymond 67, 58, 60, 621 V. Squire 357 Rayner v. Watford 549 Rea V. Minkler 164, 216 Read v. Fierce 289, 291 Reasoner v. Edmundson 80, 165, 289, 331 Receivers v. Faterson Gas Co. 583 Rector v. Waugh 416, 417, 436, 477 43, 334, 341, 666, 671 293, 536 584 393 667, 684, 600 243, 300 Redwine v. Brown Reed v. Fierce 1). Prentiss Reeder v. Craig Reese v. Gordon V. McQuilkio INDBZ TO CASES CITED. XXXIX Keese v. Smith 266, 267, 275, 418, 422, 423 424 427 Refeld ». Woodfolk 12l', 684', 693 Register v. Rowell 415, 436 Reichert v. Snyder 8.09 Renshaw v. Gans 625, 626 Reynolds v. Gathers 398 V. Davies 203 Rhea v. White 460 Rhines v. Baird 849 Rhode V. Alley 38 V. Green 230, 231 Ricard v. Williams 646 Rice V. Goddard 687, 607, 608 V. Spotswood 321 Rich u. Johnson 300 V. Rich 520 Richardson v. Boright 577 V. Clfesen 115 V. Dorr .61, 289 V. Horton 546 V. Williams 691 Richmond v. Tibbies 540 Rickert v. Snyder 82, 146, 283, 292, 309 Rickets v. Dickens 209, 321, 459, 489, 524 Ricketts v. Weaver 318, 562 Riddell ». Riddell _ 357, 358 Rigby V. Great Western Railway Co. 519 Rigg V. Cook 892, 404 Right V. Bucknell 437, 447 Rindskopf J). Farmers' Loan Co. 168, 214 Risner v. Dugan 574 Roat V. Puff 624 Robards v. Cooper 600 Robb V. Lefevre 849 Roberts v. Levy 98, 829, 358 V. Woolbright 682 Robertson v. Gaines 393 V. Lemon 809, 310 Robinson v. Bafcewell 122, 811 V. Bland 73, 584 V. Harman 284 V. Neil 82, 489 V. Wilson 584 Rockfeller v. Donelly 290 Rocksell.!!. Allen 61 Roe V. Hay ley 562 Roebuck v. Dupuy 489 Rogers v. Challis 649 V. Colt 686 V. Cross 674 V. Horn 61, 612 V. Payne 350 Roland v. Miller 624, 627 Roll V. Osborn 14 Rolph V. Crouch 218, 254, 255, 258, 286, 288, 807, 312 Romig V. Romig 41 Root V. Crock 889, 434 Roscorla v. Thomas 465 Rose V. Hart 583 V. Swezey 647 Rosewell's Case 196 Ross V. Dysart 169, 464 V. Turner 821 Row V. Dawson 66, 348, 857, 360 Rowe V. Heath 309, 514 Rowley V. Bent 44 Rowntree ». Jacob 258 Royce v. BurreU 547 Royer v. Ake 461 Rucker v. Lowther 37, 48 Rufner v. McConnel 623, 541, 702 Ruggles V. Barton 392, 404 Rundell v. Lakey 97, 129 Runlet V. Otis 400 Runnells v. Webber 97 Russ V. Perry 97, 881 V. Steele 100, 154, 216 Russell u. Clark 673 Ryder v. Jenny 48 Sacheverell v. Froggatt Salmon v. Hoffman Salstonstall v. Gordon Sanborn v. Woodman Sanders v. Betts 561 600 576 122 627 V. Hamilton 220, 227 Sandford v. Handy 575 V, Kernan 488 V. Travers 463 Sargent v. Gutterson 117, 118, 849 Saunders v. Johnson 558 Savage v. Whitehead 123, 124 Sawyer v. Cator 478 V. Little 588 Scales V. Maude • 664 Schaffner v. Grutzmacher 402, 538 Sohermerhoru v. Vanderhayden 259 Schlencker v. Moxsy 468 Schofield V. Iowa 84, 85, 883, 337 Schuylkill R. R. v. Schmoele 134, 141 Scott V. Alworthy 73 V. Douglass 392 v. Godwin 568 V. Lunts 814 V. Rayne 649 V. Scott 139, 435 Scribner v. Holmes 104 Scudder v. Andrews 693 Seabourne v. Powell 199, 888 xl INDEX TO CASES CITED. Seaton v. Barry 478, 622 Seddon v. Senate 136 V. Tutop 265 Sedgwick v. Hollenbeok 80 , 185, 136 V. Stanton 68 Seitzinger v. Weaver 487 , 666, 631 Selby V. Chute 143 Servante v. James 660 Seton V. Slade 42, 682 Severn v. Clerk . 479 Seymor's Case 413, 415, 416, 417, 436, 526 Seymour v. Lewis 111 Shackelford u. Handley 674 Shanklin v. Cooper 599 Shannon v. Marselis 677, 696 Shapland v. Smith 42 Share v. Anderson 623, 640 Sharp V. Carter 68 V. Conkling 660 Shaw V. Arden 684 V. Galbraith 415, 436 V. Hurd 360 V. White 248 V. Wilkins 241 Shearer v. Ranger 96, 97 Shears v. Uusenbmy 122 Shelby v. Marshall ( 85 Sheiton v. Codman 322 V. Pease 114, 177 , 493, 536 Shepherd v. Temple 584 Sherry v. Frecking 68 Sherwood v. Barlow 392 V. Vandenburgh 463, 464 V. Waller 68 Shirtz v: Shirtz 248 Shober v. Robinson 220 Shontz V. Brown 43, 50 , 486, 666 Shreck a. Pierce 41, 42 Siboni u. Kirkman 564 Sidden v. Riley 119. 121 Silk V. Prime 645, 552 Simers v. Saltus 159 Simpson v. Hawkins 263, 681, 683, , 693, 696 V. Lord 670 Sinclair v. Jackson 399, 400 Singleton v. Allen 213 Sisk V. Woodruff 219, 230 Sisson V. Seabury 379 Skinner v. Kilbys 193 V. Starner 121, 434 Skip V. Hook 203 Slack V. McLagan 602, 629 V. Thompson 37 Slater v. Rawson 68, 60, 147, 368, 371, 373 Slingsby's Case 669, 660 Sloper V. Fish 42 Small V. Attwood 570, 571, 577 V. Proctor 464 V. Reeves 154, 263, 668, 599 Smith V. Ackerman 289, 599 V. Addleman 248 V. Babcock 673 V. Baker 199, 408, 419, 432, 438, 657 V. Cannell 97, 450 V. Compton 218, 231, 305, 497, 617, 618 V. Evans 623 V. Howell 94 V. Jefts 289, 290, 321 V. Low 386 V. Mercer 667 V. Mitchell 673 V. Montes 398 V. Newton • 681 V. Pendell 389 V. Richards 574, 676 V. Shepard 146, 169 V. Sillyman 630, 636, 639 V. Simonds 318 V. Sprague 100 V. Strong 58, 237, 257, 261 B. Swearingen 477 Snow V. Chapman 623 Snyder v. Lane 117, 293 Soames v. Edge 649 Solomon v. Turner 693 Somerset v. Cookson 651 Somerville v. Hamilton 230, 265 Somers v. Schmidt 219, 221, 222, 224 Somes V. Skinner 278, 392, 404, 405, 422 Soper V. Stevens 567 Sorsbie v. Park 558, 569 Souter V. Drake 42 South V. Hoy 321, 563 Spackman v. Timbell 546 Sparrow v. Kingman 392, 404, 464 Speakman v. Forepaugh 632 Spear v. Allison 184, 623, 644 Spencer v. Durant 558 V. Howe 115 V. Marriott 129 Spencer's Case 182, 316, 316, 317, 372, 467, 458, 461, 463, 464, 564 Sprague v. Baker 146, 148, 162, 171, 177, 178, 333 Spring V. Chase 293, 301 V. Tongue 97, 98 Spruill V. Leary 370, 381 Spurr V. Andrew 101, 119 Squire v. Harder '' 453 St. John V. Palmer 152, 165 Staats V. Ten Eyck ■ 234, 236, 236, 257, 300 INDEX TO CASES CITED. xli Stack V. Eoyse 668 Stafford V. Van Rensselaer 343 Staines v. Morris 48 Stanard v. Eldridge 289, 293 Stanley v. Goodrich 118, 623, 703 V. Hayes 126 V. Jones 68 Stannard v. Forbes 604, 605 V. Ullithorne 23 Stapylton v. Scott 42 Starke v. Hill 605 Starkey v. Neese 668, 699 State V. Crutchfield 52 V. Gaillard 614 V. Hollo way 676 Stearns v. Hendersass 898 Steele v. Adams 269 V. Mitchell 87 V. Richardson 142 Stehley v. Irvin 627 Steigleman v. Jeffries 684 Steiner v. Baughman ■ 147, 418, 482, 624, 630 Steinhauer v. Witman 619, 620, 621, 622, 628, 629, 642 Stephen v. Bagwell 67 Stephens v. Hotham 44 Sterling v. Peet 60, 51, 147, 237, 239, 245 Stevens v. Cooper 694 V. Jack 230 Stevenson v. Lambard 337 V. McReary 466 Stewart v. Anderson 403, 536 V. Drake 145, 163,»164, 241, 270, 289, 293, 309 V. Noble 243 V. West 39, 144, 186, 214, 217, 360, 567 Stileman v. Ashdown 543 Stiles V. Hobbs 330, 600 Stimpson v. Thomaston 454 Stinchfield v. Little 50 Stinson v. Sumner 280, 3S8 Stock V. Aylward 666, 667 Stockton V. Cook 689 Stoddart v. Smith 626 Stoever v. Witman 68 Stokes V. Jones 407 Stone V. Buckner 681 V. Denny 573 V. Fowle 610 V. Hooker 147, 148, 150 V. Patterson 159 V. Peake 610 Story V. Richardson 560 Stout V. Jackson 210, 241, 249 Stow V. Stevens 41 Stowell V. Bennett 329 Strachn v. Foss 405 Strawbridge v. Cartledge 269 Strawn v. Strawn 402, 538, 689 Streaper v. Fisher 314 Street v. Blay 584, 588 Streeter v. Henley 699 V. Streeter 464 Stroheoker v. Housel 478, 689 Strong V. Peters 675 Stronghill v. Buck 466 Stuart V. Kissam 647 Stubbs V. King 594 V. Page 237 Sturgeon v. Schaumburg 547 Style V. Hearing 457, 468 Summerville v. Jackson 637 Sumner v. Bernard 449, 461 V. Wentworth 638 V. Williams 43, 49, 240, 300, 309, 344, 462, 507, 5f)8, 614 Sumter v. Welch 218 Surget V. Arighi 185 Susquehanna Coal Co. v. Quick 364 Sutton V. Sutton 668, 578 Suydam v. Jones 117, 119, 260, 341, 350 367 Swafford v. Whipple 84, 237, 248! 259 Swaine v. Great Nor. R. R. 649 Swan V. Drury 40, 41 V. Searles 469 V. Stranshan 655 Swazey v. Brooks 110, 132, 227 Sweet V. Brown 627, 681 Sweetser v. Lowell 410 Swenk v. Stout 2i9, 228 Swett V. Patrick 239, 310, 660 Swift V. Hawkins 594 Symmes v. Smith 196 Tabb V. Binford Taggert v. Stanbery Talbot V. Bedford Tallmadge v. Wallis Tallman v. Green Taltarum's Case Tankersley v. Graham Tanner v. Livingston Tapley v. Lebeaume Tapscott V. Williams Tarpley v. Poage Tarwater v. Davis Taul V. Bradford Taylor v. Ashton V. Brodrick 210 48 214 688, 591, 595, 696, 601 676, 664 9, 10, 14, 414 605 283 237, 257 560, 563 616, 617 41 88 678 248 xlii INDEX TO CASES CITED. Taylor v. Dabar 199, 419, 432, 436 V. Fleet 675 V. Fulmore 614 V. Oilman 117, 118, 672, 700 u. Horde 10, 53, 54, 74, 75, 155 V. Needham 386 V. Shufford 403 Temple v. Partridge 383, 448 Templer v. McLachlan 584 Terrett v. Taylor 393 Terry v. Drabenstadt 284, 311 Thacher v. Dinsmore 49 Thackeray v. Wood 31, 87, 88, 129 Tharin v. Fickling 40 Thayer v. Clemence 290, 321, 334 V. Wendell 51 V. White 41 Thomas v. Harris 628, 632 V. McCann 573 V. Maddan 349 V. Perry 59, 63, 68, 74 V. Powell 567 V. Stickle 148, 150, 392, 404 Thompson v. Christian 605 V. Mansfield 588 V. Morrow 247, 248, 249 V. Sanders 341 V. Shattuck 340 Thorndike u. Norris 392, 404 Thornton v. Court 342, 346, 357, 858, 359 V. Wynn 584, 592 Threlkeld v. Fitzhugh 241, 249 Thursby v. Plant 556 Tibbets v. Ayer_ 598, 609 Tioknor v. Harris 547 Tillotson V. Boyd 322, 323 V. Grapes 586, 687, 610 V. Kennedy 393, 397 Timms v. Shannon 681 Tindall v. Conover 41 V. Harkinson 575, 579 Tinney v. Ashley 40 Tisdale v. Essex 134 Tod V. Baylor 248 Todd V. Gallagher 634, 642 V. Todd 4, 376 Tone V. Brace 462, 463, 679 Tong V. Matthews 243 Tooker v. Grotenkemper 128, 469 Tourle v. Rand 666 Tourville v. Nash ' 620 Toussaint v. Martinnant 586 Town V. Needham 334, 343 Townsend v. Morris 209, 210, 321, 563 V. Weld 119, 260 Trask v. Vinson 687, 608 Traster v. Snelson 78, 82 Traver v. Halstead 41 Tremain v. Liming 38 Trenchard v. Hoskins 460, 519 Trevivan v. Lawrence 385, 386, 390, 405, 418 Trinity Church v. Higgins 654 Triplett V. Gill 59, 69, 88 True V. Haley 272 Trull V. Eastman 216, 392, 394, 397, 410 V. Granger 256 Trumbo v. Lockridge 681, 689, 692 Tryon v. Whitmarsh 573 Twambly v. Henley 69 Twynam v. Pickard 337, 661 Tucker v. Clarke 274, 275, 424, 426, 427 V. Cocke 524 Tufts V. Adams 114, 169, 271, 274, 289, 293, 333, 341, 609 Tuite V. MiUer 80, 164, 166, 174, 176, 655 Turnbull v. Gadsden 574 Turner v. Harvey 574, 576, 582 <;. Goodrich 171, 219, 309 V. Scott 434 Tuscumbia R. R. Co. v. Rhodes 693 Tuthill V. Babcock 574 Tye V. Gwynne 584, 591, 693 Tyler v. Young 610 Tyson v. Passmore 434 u. United States v. Howell 219, 230, 360 University of Vermont v. Joslyn 154 Upton V. Barrett 71 Urmston v. Pate 667, 669 Urquhart v. Clarke 882, 642 Vail V. Railroad Co. 242 Valle V. Clemence 395 Van V. Lord 9i Van Brunt v. Schenk 165 Van Buren v. Digges 584, 592 Van Epps v. Harrison 575 Van Eps v. Schenectady 48 Van Doran v. Relfe 331 Van Hoesen v. Benham 71, 73, 349 Van Home v. Crain 337 V. Fonda 406 Van Lew v. Parr 671, 611, 612, 682 Van Nostrand v. Wright 80 Van Rensselaer v. Hays 314 INDEX TO CASES CITED. xliii Van Rensselaer v. Kearney 122, 389, 446 V. Stafford 343 Van Riper v. Williams 677 Van Waggoner v. McEwen 263, 677 Van Wagner v. Van Nostrand 78, 79, 98, 117, 118, 119, 213 Vanada v. Hopkins 37, 48 Vance v. House 682, 689, 690 Vancourt v. Moore 341, 370 Vancouver v. Bliss 42 Vanderkarrs.Vanderkarr 145, 177, 214 Vane v. Lord 91, 93, 288, 566, 630 Vanmetre v. Griffith 172, 173 Vardeman «. Lawson 41, 43 Vaugbn V. Stuzacher 80 Venable v. Beauchamp 173 Vernam v. Smith 189, 463, 464 Vibbard v. Johnson 591 Vick V. Percy 681, 689, 691 Vigers v. Pike 578 Vining v. Leeman 609 Vroonian v. Phelps 585 Vyvyan v. Arthur 189, 461 W. Waoe V. Bickerton 283 WaddiloVe v. Barnett 169 Wade V. Comstook 138, 242 V. Halligau 464, 467 V. Lindsey 71, 392 V. Merwin 258 Wadleigh v. Glines ' 402, 638 Wailes v. Cooper 608, 681, 684, 691 Wait V. Maxwell 57, 82, 192 Wakeman v. Duchess of Rutland 45, 667 Walden v. Bodley 160 Waldo V. Hall 464 V. Long 227, 293, 309 Walker v. Gatliu 103, 142 V. Gilbert 681 V. Hall 407, 474, 478, 479 V. Physiok 462 V. Renfro 473 V. Schuyler 248 B. Wilson 78, 263, 606 Waldronu. McCarty 145, 155, 156, 157, 161, 162, 163, 165, 170, 177, 368 Wallace v. Maxwell 403 V. Muier 399 V. Talbot 241, 286 Walton V. Bonham 691 Ward V. Audland 661, 664 V. Bartholemew 48 V. Grayson 683 a. Packard 576, 577 Ware v. Houghton 601 V. Weathnall 241 Wark V. Willard 392, 404, 427 Warn v. Bickford 197, 203 Warner v. Daniels 674 Warrick «. Nairn 684 Washburn v. Pioot 593 Waterhouse v. Stansfield 73 Waters v. Dean of Norwich 71, 210, 240 V. Mattingley 673 Watkins v. De Lanoey 143 V. Holman 160, 646, 649 V. Owen 656 Watson «. Blaine 258 V. Parker 643 Watts V. Parker 58 V. Waddle 41 V. Wellmau 122 Waugh V. Land 45 Way V. Arnold 68, 429 Wead V. Larkin 372 Weale v. Lower 385, 418 Weatherbee ». Bennett 100 Weaver v. Wilson 681 Webb V. Alexander 145, 166, 230 V. Astin 385 V. Russel 461 Webber v. Webber 360, 547, 667 Webster v . Conley 44, 460 Weeks v. Burton 673 Weems v. McGaughan 492 Weiser v. Weiser 460, 477 Weiting v. Nissley 237 Welch V. Adams 159 V. Mandeville 367 Weld V. Traip 99 Wellborn v. Finley 404 Wellesley v. Wellesley 417 Wellman v. Hiokson 68 Wells V. Tydell 556 Wendel v. North 219 Wentworth v. Cock 554 V. Goodwin 688, 598 West V. Blakeway 350 V. Spaulding 129 V. Stewart 79, 182 Westbrook v. McMillan 612, 615 Wetherbee v. Bennett 251, 288, 291, 292 Whallon V. Kauffman 601, 624 Wheat V. Dotson 686, 600 Wheatley v. Lane 554 V. Purr 664 Wheeler v. Hatch 66, 57, 69, 74 V. Sohier 339, 340 V. Wheeler 367 Wheelock v. Henshaw 407 V. Thayer 182, 321 xliv INDEX TO CASES CITED. Whisler v. Hicks 289, 699 Whitbeck v. Cooke 80, 102, 104, 106, 538 White V. Brooaw 394 V. Erskine 217, 361 V. Poljambe 44 V. Lowry 627 V. Patten 427, 428, 429, 431 V. Sanborn 684 V. Whitney 164, 240, 271, 334, 337, 339, 341, 344 V. WiUiams 220 Whitehead v. Carr 34 Whitehill V. Gotwalt 459, 480, 487, 623 Whiting V. Dewey 60, 301, 639 Whitmore v. Casey 227 Whitney v. Allaire 579, 584 V. Dinsmore 163, 334 V. Lewis 591, 594, 595 Whittaker v. Cone 70 Whitton V. Peacock 364 Whitworth v. Carter 103; 142 V. Stuckey 611, 681, 682 Wickenden v. Webster 484 Wicks V. Hunt 649 Wiedler v. Farmers' Bk. of Lan- caster 622 Wiggins V. McGimpey 610 Wight V. Shaw 396, 398, 402 Wightman v. Reynolds 393, 408 Wilde V. Gibson 571, 579 Wilder v. Ireland 78, 126, 134, 164, 220, 230 Wildridge v. McKane 556 Wiley V. Fitzpatrick 692, 695 Wilford V. Rose 82 Wilhelm v. Firnple 248 Wilkins V. Fry 43 V. Hogue 681 Willard v. Twitchell 60, 63 Willets V. Burgess 289 Williams v. Beeman 300 V. Burrell 207, 209, 252, 268, 264, 256, 364, 462, 470, 499, 565 V. Claiborne 389 V. Hathaway 465 V. Hogan 70, 73, 563 V. Maus 73 V. Presbyterian 389 V. Shaw 220 V. Thurlow 392, 404 V. Wetherbee 165, 215, 219, 229, 321, 340 Williamson v. Codrington 206, 210, 659, 661 V. Raney 568 V. Test 259 Willis V. Astor 48 V. Haliburton 103, 142 Wills V. Cowper 73 Willson V. Willson 88, 237, 242, 244, 271, 289, 290, 291, 293, 297 Wilson V. Baptist Society 586 V. Cochran 100, 104, 114, 182, 242, 634, 638, 641 V. Forbes 59, 74, 237, 257, 265, 321 V. Getty 41 V. Jordan 603 V. Knubley 544, 561, 552, 563 V. McElwee 150, 169, 219, 227 V. Shelton 258 V. Short 68 V. Taylor 335, 341 V. Widenham57, 329, 345, 348, 370 V. Wood 39 Wilt V. Franklyn 258 Wimberly v. Collier 219, 309 Winne v. Reynolds 41 Winslow V. McCall 300 Winstead v. Davis 601 Winston v. Gwathmey 574 V. Vaughan 487, 490 Winterbottom v. Ingham 160 Withers v. Atkinson 626, 634 V. Baird 35, 625 V. Bircham 560 V. Green 684, 585, 592 V. Morrell 679 Witherspoon v. Anderson 241 Withy V. Mumford 340, 367 Witty V. Hightower 148, 160, 154, 166, 214, 682 Wivel's Case 386, 387 Wolbert V. Lucas 632, 634, 635, 637, 642 Wolfe V. Hauver 258 Wood V. McGuire 68 Woodbridge v. Banning 406 Woodburn v. Renshaw 463 Woodfolk V. Blount 35 Woodruff u. Bunce 679, 682, 690 V. Greenwood 118, 131, 140, 205 Woods ». North 63,424,426,591, 678, 683 Woodsworth v. Janes 70 Woodward v. Allan 147, 173 V. Rodgers 617 Woolam V. Hearn 120, 697 Worley v. Frampton 43, 44 Worthington v. Curd 117, 684, 692 Worthy V. Johnson 43, 60 Wotton V. Cooke 196 INDEX TO CASES CITED. xlv Wotton V. Hele 134, 135, 136, 193, 537 Wray v. Furniss 691 Wright V. De Groflf 51 V. Herron , 415 V. Meek 68 V. Sperry 345, 346, 358 V. Wright 417, 419, 432 Wyche V. Macklin 594 Wye V. Throgmorton 202 Wyman v. Ballard 289, 293, 356 V. Brigden 273, 609 Wynn v. Harmau 395, 627 Wyse V. Snow 656 Yancey v. Lewis 134, 683 Yelverton v. Yelverton 229 259, 417 Yokum V. Thomas 311 Young V. Adams 567 V. Bumpass 676, 577 V. Butler 681, 682 683, 691 V. Covell 573 V. Hargrave 469 V. Harris 571 V. McClung 682 V. Raincock 65 ,63, 114, 318, 456 612, 562 Youngman v. Linn 623, 626, 630, 634, 638 Zouch V. Swaine 669 COYENANTS FOR TITLE. COVENANTS FOE TITLE. CHAPTER I. WARRANTY AND THE INTRODUCTION OP COVENANTS FOR TITLE. The introduction into general use of the " covenants for title " towards the close of the seventeenth century, in place of the feudal warranty, was one of the natural incidents of the change from the ancient to the modern system of law, which, having its rise aVwut the end of the reign of Henry the Seventh, had, towards the latter part of that of Charles the Second, assumed something of a regular form. It is familiar that the principal features of this change, effected partly by statute and partly by gradual alteration of the common law, were the restoration of the right of devise, the aboli- tion of military tenures, the disuse of real actions, the introduction of conveyances to uses, of the mode of trying title to land by eject- nlent, of the statute of frauds and perjuries, and the establishment of a regular system of equitable jurisdiction. With the di&use of real actions, fell the law of warranty, which, from peculiar causes, had grown to be one of the most difficult subjects in the ancient system. And yet, less than a century ago, it was truly said by a learned writer : " Abstruse, and, in most respects, obsolete as the learning respecting it unquestionably is, it continues to deserve the attention of every person who wishes to obtain accurate notions of those branches of our law which are more immediately connected witla the doctrines which respect the alienation of landed property." ^ If this be true as to the English student, it is more emphatically true as to the American student. For although it would seem evident that the absence with us of the law of primogeniture would of itself forbid the application of many of the incidents of ' Butler's note to Co.. Litt. 366 a. 1 2 WARRANTY AND THE INTRODUCTION the law of warranty, yet it will be found that to that law there has been, and is to this day, attached a practical importance on this side of the Atlantic which is denied at its home. A sketch of the law as it formerly existed cannot, therefore, be considered unnecessary. By the feudal constitution, homage and warranty were reciprocal. Long before the introduction of deeds, it was the law that while the vassal should render homage to his lord for the fief received at his hands, the lord should protect the vassal in its enjoyment.^ If, therefore, its title were disputed, and the lord, called on to warrant or insure it, failed so to do and the fief were lost, he was bound to furnish another of equal value.^ This warranty was originally created without express contract of any kind, — it was simply a natural incident of tenure, and its effect was twofold : not only did it thus protect the vassal from the paramount title of others, but, what was perhaps of scarcely less consequence in those rude times, it protected him against any attempt of his lord to take back what he had parted with ; in other words, the warranty operated as a rebutter, as it was termed, by barring the warrantor and his heirs from claiming any portion of the land. When, subsequently, it became usual to authenticate the transfer of land by charters or deeds, whether the latter did or did not con- tain the technical word warrantizo^ a warranty was implied from the word of feoffment dedi, and this was termed a warranty iu law.* As early as the year 1276, the statute de higamis '° was declaratory of the effect attached by the common law to the use of this word. ' Gilbert's Tenures, 139 ; 1 Kee-ves's History of the Common Law (ed. 1869) , 423. = Sir Martin Wright, in his Introduction to the Law of Tenures, pp. 27-32, &c., seems to think this could only have been so in the case of improper feuds, so- called, viz., those which were sold or granted free of all service, and that it was unlikely that where a feud was generously given, the lord should be held to make good its loss ; the question has been much discussed by the civilians, but the weight of authority seems to be as stated above ; see Butler's note to Co. Litt. 365. And Bracton, Littleton and Coke, are more reliable on this subject than Wright or Butler, who got many of their ideas from continental sources, which late researches have shown to be of questionable accuracy. ^ " And no other verb in our law," says Coke, " doth make a warranty, but loarranfeo only ; " Co. Litt. 384 a. ^ " Because in judgment of law they " (that is, the words from which warranty is implied) " amount to a warranty, apart from the word warrantizo ;'''' Co. Litt. supra. 6 4 Edw. I. c. 6. OP COVENANTS FOR TITLE. 3 " In deeds where is contained dedi et concessi without liomage, or without a clause that containeth warranty, and to be holden of the givers and their heirs by a certain service, it is agreed that tlie givers and their heirs shall be bound to warranty ; " — " and even if there be," says Coke in his exposition of this statute,^ " an ex- press warranty in the deed, yet that taketh not away the warranty that is wrought by force of the word dedi, but the feoffee may take advantage either of the one or the other at his pleasure." ^ The warranty, therefore, which naturally flowed as part of the reciprocal consequences of feudal tenure, could not be modified by an express warranty.^ The second clause of the statute, however, modified the common law, by declaring that " where is contained dedi et concessi, to be holden of the chief lords of the fee or of others, and not of feoffors or of their heirs, reserving no service, without homage or without the foresaid clause, their heirs shall not be bounden to warranty, notwithstanding the feoffor during his own life by force of his own gift, shall be bound to warrant ; " in other words, where no tenure between the grantor and grantee was created by the gift, the word dedi implied a warranty merely by the donor during his life, and not one which would impose an obligation on his heirs. This was the first alteration by statute of the law of warranty. The second came but two years after. Every warranty which de- scended upon the heir of the warrantor was, as has been seen, operative to prevent the latter from recovering back the land against the warranty of his ancestor, and this, whether he had or had not inherited from the latter other lands wherewith to meet the claim ; in other words, whether he had or had not assets by descent.* Hence, if a tenant by the curtesy should alien his wife's land witli ' 2 Institutes, 275. " This is the earliest instance of statutory enactment bestowing a certain sig- nification to the words of conveyance, and doubtless afforded the precedent for the statute of 6 Anne, c. 35, giving a certain effect to the words " grant, bargain, and sell," an act adopted, in substance, in many of our States. See Ch. XII. ^ That is to say, " if a man make a feoffment by dedi, and in the deed doth warrant the land against J. S. and his heirs, yet dedi is a general warranty during the life of the feoffor ; " Co. Litt. 384 a. * " And it is to be understood, that, before the statute of Gloucester, all war- ranties which descended to them which are heirs to those who made the warranties, were barres to the same heirs to demand any lands or tenements against the war- ranties, except the warranties which commence by disseisin." Litt. § 397. 4 WABEANTT AND THE INTEODCCTION warranty, this warranty would descend upon the eldest son, — for the law of warranty and the law which gave the inheritance to the eldest son were coeval, — and bar him from claiming the inheritance which he would otherwise have derived from his mother, and this, though without assets from the father.^ To remedy this flagrant injustice, the statute of Gloucester^ was passed, which provided that " if a man alien a tenement that he holdeth by the law of England, his son shall not be barred by the deed of his father (from whom no heritage to him descended) to demand and recover, by writ of mort d'ancestor, of the seisin of his mother, although the deed of his father doth mention that he and his heirs be bound to warrant." ^ And it then went on to say : " And if any heritage descend to him of his father's side, then he shall be barred for the value of the heritage that is to him descended ; " in other words, the warranty of a tenant by the curtesy would not bar the sou, unless the latter had inherited other lands from the father, in which case he would be barred to the extent of- their value. In every other case, however, warranty barred with or without assets by force of the common law.* ' 2 Institutes, 292. = 6 Edw. I. c. 3, A.D. 1278. ' It may be here mentioned, as showing the connection in this country between the law at the present day and the old law thus attempted to be sketched, that a late case in Kentucky arose under an old statute there, which provided that '' If the deed of the alienor doth mention that he and his heirs be bound to warrant, and if any heritage descend to the demandant on the side of the alienor, then he shall be bound for the value of the heritage that is to him descended." A hus- band seised in right, of his wife joined with her in the conveyance of her land by a deed which contained a covenant of warranty, but which, by reason of defective acknowledgment, was inoperative to pass her estate. After her death, the husband married again and died intestate ; there were children of the second marriage, dnd his estate descended equally to both sets of children. The 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 full value of the land which he had conveyed with warranty. They then brought suit against the per- sonal 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, and in this they were finally successful ; Todd v. Todd, 18 B. Monr. 144 ; infra, Ch. XI. * On this subject, Blackstone says : " But though without assets the heir was not bound to insure the title of another, yet in case of lineal warranty the heir was perpetually barred from claiming the land himself, for if he could succeed in such claim he would then gain assets by descent (if he had them not before), and must fulfil the warranty of his ancestor;" 2 Black. Com. 302. To prevent mis- OF COVENANTS FOB TITLE. 5 The third statutory alteration came twelve years after, by the passage, in the year 1290, of the statute of quia emptores,^ which, prohibiting subinfeudation, by declaring that it should be lawful for every freeman to sell his lands at his own pleasure, and that the feoffee should hold the lauds of the chief lord of the fee, by such service and customs as his feoffor was bound to before, put an end to homage as an incident of tenure ; and this having been the consideration of implied warranty, it hence resulted that the word dedi, in a conveyance in fee, thenceforward implied a warranty during the life of the donor and no longer.^ As this statute thus took away that incident of tenure on which warranty depended, it was natural that express warranties which, though sometimes employed before that time, were by no means generally used, should become almost universal.^ But, a few years before, in the year 1285, had been passed the celebrated statute de donis, which had, for the next two hundred years, a greater effect upon the law of warranty than has been generally considered, indirectly raising it to a height, and giving to it an in- fluence, which probably it would never have otherwise attained. construction of this sentence, it must be borne in mind that Blackstone is here speaking of the common law ; and in the first instance given, is evidently referring to the case of an eviction of the feoffee by paramount title. The latter example, of course, is a plain case of rebutter, though the meaning would have been clearer if the word " lineal " had been omitted, as at the time of which he was writing, there was but one species of warranty — collateral warranty being then un- known. ' 18 Edw. I. 0. 1. ' If, however, the conveyance left any reversion in the donor, the implied warranty still subsisted, since the donee still held of the donor as before the statute, and consequently the warranty bound not only the donor, but also his heirs, and, therefore, " if a man make a gift in tail, or a lease for life of land by deed, or 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 : " Co. Litt. 384 6 ; Fitzh. Nat. Brev. 134 ; and the burden of this war- ranty bound the heirs of the grantor and the assignees of the reversion, and its benefit enured to the assignees of the grantee. ' The form of which, as given by Bracton, was " Et ego et haeredes mei war- rantizahimus tali et haeredibus suis tantum vel tali et haeredibus et assignatis et Jiaeredibus assignatorum, vel assignatis assignatonim et eorurn haeredibus et ac- quietabimtis et defendemus eos iotam terram illam cum pertinentiis, contra omnes gentes:'''' Co. Litt. 383 b ; and, as will be hereafter seen, this exact form is, with the addition of words of covenant, the form of the American covenant of warranty at the present day. 6 WAREANTT AND THE INTRODUCTION Reciting that, " when lands had been given to a man and his heirs begotten, upon condition that if he should die without such heirs, it should revert to the giver or his heir, and that, after issue born, such feoffees had theretofore had power to alienate the lands so given and to disinherit their issue contrary to the minds of the givers, and contrary to the form expressed in the gift," it was de- clared " that the will of the giver according to the form in the deed of gift manifestly expressed shall be from henceforth observed, so that they to whom the land was given under such condition, shall have no power to alien the lands so given, but that it shall remain unto the issue of them to whom it was given after their death, or shall revert to the giver or his heirs." ^ And hence arose those estates known thenceforward, and at this day, as estates tail. The effect of this statute, by removing the estates of the greater lords beyond the penalties of forfeiture, and beyond liability for debts and incumbrances, swelled them to a height, and gave them an immunity, which was as hateful to the crown as it was to the trad- ing and industrious classes. Nor was it less distasteful to the younger sons, who, in consequence of the inalienable nature of the estates thus created, were compulsorily without provision from their fathers, the tenants in tail, and it is common history that in every successive Parliament from Edward the First to Edward the Fourth, — a period covering eight reigns, and nearly two hundred years, — bills, "which," says Coke, "I have seen," ^ were introduced to repeal the statute de donis, and were invariably rejected. But although there may have been cases in which tenants in tail were well satisfied that their estates should be inalienable, there were others who desired to part with them, and the question soon arose, how could this be done ? and the judges, being the nominees of the crown, were willing enough to lend themselves to expedients. An analogy to the statute of Gloucester was soon found, for although the statute de donis had expressly said that the tenant in tail should " have no power to alien the lands so given," it came to be held, upon what they called " the equity of the statute of Gloucester," that a warranty of tenant in tail, with assets in fee- simple descending upon the issue in tail, barred the latter, and, of ' 13 Edw. I. 0. 1. " Mildmay's case, 6 Rep. •40, where an interesting account of this subject is given. OP COVENANTS FOR TITLE. ( course, passed a good title,^ for it was considered that, although the statute had forbidden the alienation of the tenant, it had not taken away the force of the warranty.^ But it was not every ten- ant in tail who had another estate in fee-simple, or, if he had, might die seised of it, and this risk the purchaser was obliged to run, for if no assets should descend to the issue in tail he might be evicted by the latter. In every case, therefore (and there must have been many), in which the tenant in tail had no other estate than the one warranted, the warranty was powerless to help him. But the statute of Gloucester, though it had said that a warranty from a father to a son, or, as it came afterwards to be called, a lineal warranty, would not bar the son without assets, yet was silent as to a warranty descending from any collateral ancestor, and there- fore a warranty of a collateral ancestor, whose heir the issue in tail might be, descending upon the latter, would bind him without assets by force of the common law. Consequently if a brother of the tenant in tail, who had nothing to say to it, and who was col- lateral in respect of it, joined in this alienation with warranty and ' " And by the equity of this statute, the warranty of tenant in tail is no bar unless there be assets in fee-simple descended ; " 2 Institutes, 293, implying, of course, conversely, that when there were such assets, the warranty would bar. And see the cases cited by Coke in Mary Portington's case, 10 Reports, 37 6, 38; Litt. § 712; 2 Reeves's History, 200, 339. The word "analogy" should rather have been used than " equity," for the statute, being in derogation of the common law, should, according to the general rules of interpretation, have been construed strictly. ^ 2 Reeves's History, 340. Mr. Butler s'ays, in his note to Co. Litt. 373 6 : " At common law the operation of a warranty to rebut the heir could hold in no case where the heir claimed the estate warranted from the ancestor by descent ; for at the common law, whenever the ancestor had the inheritance, he could alien it from the issue ; therefore the warranty, as to the purpose of rebutter, was perfectly inoperative. The statutes have made no alteration in these respects. The consequence is, that without assets the ancestor's warranty never did and does not now bind the heir in any case, except where he takes by purchase." The meaning of this is sufficiently obvious when considered in connection with the former part of the same note. When the ancestor was seised in fee and conveyed with warranty, the latter was useless — or, to speak more cor- rectly, superfluous — to rebut an heir who took by descent, for the conveyance, for that purpose, was as effectual as the warranty, and if the ancestor were seised for life or years, it would, in most cases, have been a warranty commencing by dis- seisin, and therefore void ; but though useless as a rebutter, a warranty bound the heir to insure the title warranted, to the extent of the assets descended ; though, of course, without assets, he was not so bound. WARRANTY AND THE INTRODUCTION died without issue, so that the son of the tenant in tail became his heir, this wari-anty bound, as at common law, the issue of the ten- ant in tail ; therefore^ by getting a collateral relation, whose heir the issue in tail was to be, to concur in the alienation and bind himself and his heirs to warranty, in particular c^ses the statute de. donis was successfully evaded.^ This is believed to be the true origin of collateral warranty, and to explain what is meant when it is spoken of as " a mode of common assurance." It is true that all this was not done without opposition, for about a century after the statute de donis had been passed, we find a petition of the Commons complaining that the warranty of a collat- eral ancestor was a bar, though nothing descended from the ances- tor, " which is a great damage and disinherison of many," and it prayed that no such warranty, thenceforward to be made, should be a bar in any action unless tenements to the value had descended on the demandant from such ancestor, according as it had been ordained by the statute of G-loucester,^ but the application was not successful, and collateral warranty continued as before. If the learning of collateral warranty has been called difficult and unsatisfactory, it is simply because the law of warranty, which, in its origin, partook of the simplicity of the early common law, came to be, at a time when the alienation of property was fettered by a statute whose repeal could not be effected, turned from the purpose of its introduction, — that of protection and defence, — and fashioned into a remedy to meet an entirely different purpose. But the time came when collateral warranty ceased to be used for the purpose of barring estates tail. Their use could never have been a universal one, for the obvious reason that it was not ' Litt. § 709. The reason given by Coke why the warranty of the uncle, who himself had nothing to do with the estate, should bar the issue in tail, is that " the law presumeth that the uncle would not unnaturally disinherit his lawful heir, being of his own blood, of that right which the uncle never had, but came to the heir by another meane, unless he would leave him greater advancement. And, in this case, the law will admit no proof against that which the law presumeth. And so it is of all other collateral warranties, for no man is presumed to do any thing against nature." 2 60 Edw. III. Parliament Rolls, No. 68, Cotton's Ab. p. 126, 2 Reeves, 341. Coke thus refers to this: " It has been attempted in Parliament, that a statute might be made that no man should be barred by a warranty collateral, but where assets descended from the same ancestor, but it never took effect, for that it should weaken common assurances ; " Co. Litt. 873 6. OP COVENANTS FOR TITLE. 9 every tenant in tail who had collateral relations who could or would be used for that purpose, and the need of a more effective mode of common assurance was sufficiently evident. It may be un- necessary here to inquire particularly whether common recoveries were or were not used for this purpose before the decision in Tal- tarum's case in the reign of Edward the Fourth.' The theory of the validity of a common recovery to bar an estate tail depended in its origin on the law of warranty, for the tenant in tail, although judg- ment was recovered against him for the land, yet himself had judg- ment against a fictitious warrantor, — or rather a real warrantor with fictitious means, — to recover a recompense in lands of equal value, which, assuming their existence to be real, would go to the tenant in tail and his issue, in lieu of those recovered from him.^ Such was the decision, or rather the dictum, in Taltarum's case,^ 1 Year Book, 12 Edw. IV. 19, A.D. 1473, translated in Tudor's Lead. Cas. Real Prop. (2d ed.) 605 ; and see Mr. Tudor's notes. ^ That great lawyer, Lord Holt, said, in 1701 (Anonymous, 12 Modern, 513) : " The true reason of collateral warranty was the security of purchasers and for their encouragement, as also for the establishing and settling the estates of such as are in by title or descent cast, and this was the only security such persons could have at common law. And because the estate of such persons as are in by title are much favored in law, these covenants that were for strengthening of them were favored likewise ; " and he is reported to have added, " And in those days there was no need of a lineal warranty ; but, however, the force of that is taken away by the statute de donis, and common recovery is not upon the supposition of recompense in value, and never was within the statute, but always as much out of it as if it were so mentioned in express words." This sentence has gone through all the editions of Modern Reports, has been frequently quoted, and been passed sub silentio, even by very learned writers (see Butler's note,. Co. Litt. 373 6) . But, as thus reported, it is both contrary to the law, and, in a measure, insensible; for, first, the " recovery in value " was of the essence of a common recovery, as is everywhere shown, from the opinion of Littleton, J., and Brian, C. J., in Taltarum's case, down ; (see Co. Litt. 372 6, &c. ; Fearne's Posthumous Works, 449, &c.) ; and, secondly, no one ever supposed that the statute de donis, in its origin, ever had any thing to do with common recoveries. It has, therefore, been suggested by Mr. A. T. Freedley (my former student, to whose assistance I am so much indebted in the preparation of this edition) , that the words "common recovery" have been incorrectly copied instead of "col- lateral warranty,'' which, truly, was " not upon the supposition of recompense in value, and never was within the statute, but always as much out of it as if it were so mentioned in express words ; " as must clearly appear from considera- tion of the opinion in Bole v. Horton, Vaughan, 375. ^ Notwithstanding it has often been said in a general way, that common recov- eries were invented to bar estates tail, or were first applied to that purpose from the decision in Taltarum's case, yet the first of these suggestions is clearly wrong, 10 WARRANTY AND THE INTRODUCTION and from that time, at least, this certain, universal and effective device, thus judicially recognized, became frequent, — before long, it was openly acknowledged that the warranty and recompense in value were mere fictions, — and common recoveries assumed the position which, in England, they have held until forty years ago, and which, in many of our States, they hold to this day, among the common assurances of the law.^ But nearly two centuries elapsed between the statute de donis and the decision in Taltarum's case, and it is easy to imagine that the doctrine of warranty, thus perverted from its original and sim- ple purpose, should, in the course of these years, become involved and the second seems almost equally so. There is every reason to believe, and little reason to doubt not only that the device of common recoveries was applied to bar estates tail, long before Taltarum's case, but that that decision, instead of inventing a new remedy, was merely made for the purpose of confirming what had been more than once done before. The device itself was confessedly of ancient origin. So early as the statute of Gloucester it was (c. 11.) expressly forbidden to a landlord as against his tenant ; and in the statute of Westminster the Second, it was expressly forbidden to religious men thus to evade the statutes of mortmain. And Coke, in Mary Portington's case, 10 Reports, 37 6, says expressly, " the opinion that a recovery against a tenant in tail with voucher, would bar an estate tail and was not restrained by the statute de donis, was not newly invented in 12 Edw. IV., but often affirmed for law by the most knowing of the law that ever were." When, then, it is said that Taltarum's case was the origin of this practice, it is more correct to say (and this is no doubt what many learned authors mean) that that decision first judicially sanctioned it. See Pigot on Kecoveries, 9 ; Reeves's History of the Common Law (ed. 1869), c. 21 ; and in particular Mr. Finlason's Notes to Reeves, pp. 75, 552, &c. (the value of this edition is seriously diminished by the want of a proper index) . Taltarum's case was, as Pigot says, " cunningly managed," for it seemed to be an adverse judgment, being against the recovery, and it was only from the argu- ment of the judges that it appeared that they all thought that if, in the case at bar, the tenant had heen actually seised (which he was not), the recompense would have descended, and the issue in tail been barred. " Such a piece of sol- emn juggling," says a very able modern writer, " could not long have held its ground had it not been supported by a substantial benefit to the community ; " Williams on Real Property (9th ed.), 44. And the case itself was but part of what was, even then, beginning to be an old story : the contest between the crown and its nominees, the judges, on the one side, and the lords on the other. ' So that it has long been settled that the right to suffer a common recovery is a privilege inseparably incident to an estate tail, and one which cannot be re- strained by condition, limitation, custom, recognizance, statute, or covenant. See the argument of Mr. Knowles in Taylor v. Horde, 1 Burrow, 84 ; Dewitt v. Eldred, 4 Watts & Serg. (Pa.) 421. OP COVENANTS FOR TITLE. 11 in subtlety, for the rules which were held to apply in a fictitious case, or were applied for a particular purpose, must, of course, logically be held to apply in all cases.^ And as to its illegitimate offspring, collateral warranty, which was a thing unknown in the earlier days of the common law, it was, said Chief Justice Vaughan, " an extraction out of men's brains and speculations many scores of years after the statute de donis;" ^ and, he continues, " If Littleton had taken the plain way of resolving his many excel- lent cases in his chapter of warranty, by saying, the warranty of the ancestor does not bind in this case, becaixse it is restrained by the statute of Gloucester or the statute de donis, and it doth bind in this case as at the common law because not restrained by either statute, his doctrine of warranties had been more clear and satis- factory than it now is, being intricated under the terms of lineal and collateral ; for that in truth is the genuine resolution of most if not all his cases ; for no man's warranty doth bind, or not, directly and d priori because it is lineal or collateral, for no statute restrains any warranty under those terms from binding, nor no law institutes any warranty under those terms." The next statute which restrained the operation of warranty was that of 11 Hen. VII. c. 20, passed in 1494, which declared that cer- tain alienations made by the wife of the lands of her deceased husband should be void ; that is to say, that all warranties by a ten- ant in dower, or for term of life, or in tail, jointly witli her husband, or only to herself, or to her use in his lands, made by her after the husband's death, should be void unless with the consent of those entitled after his death, and such conveyance, moreover, worked a forfeiture of her estate. The next and last restraining statute was that of 4 & 5 Anne, c. 16, which provided that all warranties made by any tenant for life of any lands descending or coming to any person in reversion or remainder sliould be void, and all collateral warranties by any ancestor who had no estate of inheritance in the same should be void against the heir.^ ' And hence the origin of the doctrine that a warranty commencing by dis- seisin was void ; Co. Litt. 366 6. Otherwise, a tenant for years or at will might have passed a good title by force of the warranty to the exclusion of the rever- sioner. ° Vaughan's Rep. 375 6. It will be remembered that Littleton wrote about the year 1475, when the doctrine of collateral warranty was at its height. ^ § 21. This was the familiar statute " for the amendment of the law and the 12 WARRANTY AND THE INTRODUCTION And, finally, by an act in our own time, passed in 1834, based upon the recommendation and report of the Real Property Commis- sioners, warranties, with all other real actions, were abolished.^ But although the organic doctrines of the law of warranty ai-e important to be known, it is hardly so with respect to the remedies by which they were enforced, and a brief reference to them only will be made. It is familiar that these remedies were two: by writ of voucher to warranty, and by writ of warrantia chartce. There were certain real actions ^ in which if one who had received a warranty were impleaded, he had the right by a " summoneas ad warrantizandum" to bring in his warrantor as the real party to the action, and thus make him defend the title, and the process itself was called " voucher." The effect of this was that the same judgment which deprived the warrantee of that which had been conveyed to him, was also a judgment in his favor against the warrantor, giving him a right to other lands of equal value to those which had been lost. But there were other real actions in which the warrantee had not the right thus to vouch,^ and in these cases he brought his writ of warrantia cliartce, whereby in effect the same end was reached.* better advancement of justice," A.D. 1705. It was the first statute in which the words " collateral warranty " were used. As will be hereafter seen, this section has been re-enacted in many of the United States. 1 3 & 4 Will. IV. c. 27, § 39 ; id. c. 74, § 14. The evidence taken before this commission is very interesting and instructive. The repoi-t itself said, " Before we ventured to recommend so important a measure as the entire abolition of real actions, we made diligent inquiries into the practical operation of this system of law, and from the result, we have every reason to think that it would have been beneficial to the community if real actions had been abolished from the time when the modern action of ejectment was devised." ^ Such as moi't cfancestor, writ of right of an advowson, writ of admeasure- ment of pasture, writ in right of ward, &c. Viner's Abr. Voucher, Q. And the summons always mentioned the form of action in which the defendant was impleaded. ^ Such as a writ of dower, a writ of assize, a writ of entry in the nature of an assize, a quare impedit, a scire facias, or a fine, &c. ; and when one might vouch and did not, he was not allowed a warrantia cliartm; Viner, supra ; Fitzh. Nat. Brev. 314, 412 ; and see also both as to voucher and warrantia chartce, 1 Reeves's History, 422, 430. ■* The form of this writ was thus : — " The King to the Sheriff, Health. Summon, by good Summoners, W., so that he be before me or my Justices, there on a certain day to warrant to R. one Hyde of Land, in such a Vill, which he claims as his Gift, or the Gift of M. OF COVEN ANTa FOR TITLE. 13 Nor in the case when warrantia chartce was the proper remedy, ■was it necessary that the warrantee should have been impleaded. The action could be, and often was brought quia timet impladtaj-i, as a mere precautionary measure, as soon as there was reason to fear the loss of the land through a defect of title ; ^ and the judg- ment then obtained, called a judgment fro looo et tempore, bound all the lands of the warrantor,^ and when the loss actually did his Father, if he will warrant it to hiin, or to shew wherefore he ought not to warrant it to him ; and have the Summoners and this writ. Witness, Ranulph, &o." Granville (Beames's ed.), 7.5. Kanulph de Granville, the reputed author of this treatise, was, it will be remembered, Chief Justice in Henry II.'s reign and the writs ran of course in his name. The publication of the Fines by the Record Commission in 1835, has cast some additional doubt as to this authorship ; see Preface to Book of Fines, p. 16. ' " And a man may sue forlh this writ of warrantia cliartce before he be im- pleaded in any action, but yet the writ doth suppose that he is ijnpleaded ; and if the defendant appear and say that he is not impleaded, by that plea he confesseth the warranty, and the plaintiff shall have judgment to recover his warranty, so as if the defendant be after impleaded and vouch him to warranty, and he entereth into the warranty and pleadeth and loseth, and that the defendant recover in value, the defendant shall have in value of the lands against the vouchee, which he had at the time of the purchase of his warrantia chariw ; and therefore it is good policy to bring his warrantia chartce against him before he be sued, to bind the lands of the vouchee which he had at that time ; " Year Book 24 Edw. HI. 35 ; Fitzh. Nat. Brev. 184. In the first sentence of this passage, the defendant first referred to means the warrantor, that is, the defendant in the warrantia chartce. Afterwards, it means the warrantee, the defendant in the action brought to recover the land. The judgment jji'o loco et tempore was at first, and until exe- cution after scire facias, no more than a lien on the warrantor's land. '' The following case from 2 Hen. IV. pi. 14, shows that a mere warranty did not bind the other lands of the warrantor, but that a judgment jjro loco et tempore did: " A question was moved between the Justices of the Common Bunch, of what effect judgment in warrantia chartce pro loco et tempore is, and it was moved that a warranty was no more than a covenant, and that by such covenant a man should not bind land to be bound in value afterwards in whosesoever hands they might come by purchase or otherwise, without judgment in any action, for this would be too great a mischief . . . but otherwise it seems by the special judg- ment above." The case is not quite correctly copied into Brooke, Warr. Ch. pi. 8, and is therefore somewhat differently rendered in the translation in Viner, Warr. Ch. M. pi. 3. It is much to be regrttted that some patient industry has not as yet achieved a translation of the Year Books, as they are, even at this late day, frequently 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 contrarieties which they present, which would doubtless be to some extent explained, could the contents of these volumes be presented in a more familiar shape. And since these remarks in the previous editions of this treatise, 14 WARRANTY AND THE INTEODTTCTION occur, then, by means of a scire facias on this judgment, the warrantee was entitled to have execution of all the lands and tene- ments which the defendant had at the time of the judgment,^ pro- vided, however, that in case of a suit brought after the judgment pro loco et tempore, the warrantee had, as by analogy to voucher, notified the warrantor and requested him to defend it.^ Beyond this merest outline of the process and pleadings applicable to warranty it is not necessary to go, nor to notice particularly the train of writs and returns, of false vouchers and foreign vouchers, essoins and casting essoins, the magnum cape ad valentiam, the parvum cape ad valentiam, the defaults and continuances which clustered round these remedies.^ Nor would they have been here referred to, save that, as will be hereafter seen, an analogy to some of them is not unfrequently, in some of our States, sought at the present day in actions on the covenants for title. it has been observed by the editor of the " Leading Cases on Real Property," " In any other country but this, a series of Reports, spreading over nearly three centuries, from the beginning of the reign of Edward I. to nearly the end of the reign of Henry VUI., and of so great interest as illustrating the history of the law and of the country generally, would not have remained accessible only to a few, in black letter and Norman French;" (Note to Taltarum's case.) Since then, this reproach has been partly removed, and three volumes of the translated Year Books have been published in England, extending, however, as yet, only to 33 Edward I. The last, however, was published in 1864. It certainly seems strange that when private authors have at their own expense illustrated or corrected history by the contents of archives hitherto unrevealed, a government should have forborne to throw open those volumes to the student. And although the reproach may be suggested to the latter that he has not mastered the uncouth and abbreviated language in which the Year Books are written, yet, however true it may be that few lawyers before the beginning of this century were unable to read these books with ease, it may safely be said that still fewer now are able to read them at all, and the number is not likely to be on the increase. > Viner, Warr. Ch. M. 4 ; Roll v. Osborn, Hobart, 25. = Per Markham, C. J., in Year Book 8 Edw. IV. 11. "If I recover from my warrantor a judgment ^to loco et tempore, and then am impleaded in an action in which I cannot vouch, as for example, an assize or scire facias, it is proper for me to request him from whom I have thus recovered, to put in a plea for me, and thus give him notice of the action that is pending, as otherwise I shall not be allowed to have execution on my judgment." ^ The learning as to this subject may be found in Viner, tit. Voucher & Warr. Char., and the notes to Careswell v. Vaughan, 2 Saunders, 32 ; Fitzh. Nat. Brev. 314; Roll V. Osborn, Hobart, 206 ; Booth on Real Actions, 242 ; and 1 Reeves's History, 422, 430 ; 2 id. 35. OP COVENANTS FOK TITLE. 15 There remains to be noticed the " recompence in value," as it was termed, for a loss of the land warranted. As to real actions in general, it is familiar that by the common law no damages were recoverable. 1 But at as early a date as the statute of Merton,^ Parliament began to allow damages in real actions, and this innova- tion was materially increased by the provision of the statutes of Marl- bridge and of Gloucester.^ Unless, however, in cases excepted by statute, the common-law rule remained.* But the remedy upon a warranty was not strictly a real action. It is spoken of as a mixed action wherein one recovered land and damages ; ^ that is to say, land so far forth as the warrantor could render another feud of equal value, and damages whereby to make up the deficiency.^ The measure of value, however, was always that of the land at the time of the warranty made.'' The remedy upon warranty savored, however, so much of the realty that it could in tlie earlier days of its history be employed only when the estate which it accompanied was that of freehold, and only when the paramount claim was that of freehold. Yet as time wore on the common law underwent some change as to this. ' Because, as has been said, "the court could not give the demandant that which he demanded not, and the demandant in real actions demanded no damages, neither by writ nor count;" 2 Institutes, 286. This reason is questioned in Booth on Keal Actions, 75, " for in some mixed actions at common law, the de- mandant never counted to damages, as in assize, writs of entry in nature of assize, and in attaint, and yet damages were recoverable in those actions at common law." » 20 Hen. III. c. 1, A.D. 1235. ' 52 Hen. III. c. 16, A.D. 1267, and 6 Edw. I. c. 1, A.D. 1278 ; and see the reading of Coke on these statutes in 2 Institutes. ■* Until the recent act of 3 & 4 Will. IV., already referred to,which, " at one blow, swept away sixty-two real actions with barbarous names ; " Mayne on Damages, 2. The Real Property Commissioners, in their report which led to the passage of this statute, referring to the evils attendant upon the existence of real actions at the present day, said: " They have generally originated in schemes of unprincipled practitioners of the law to defraud persons in a low condition of life of their sub- stance, under pretence of recovering for them large estates, to which they had no, color of title. In many instances ruin has been the consequence to the de- mandants ; and, in all, much vexation and expense have been occasioned to the tenants, who, however groundless the claim may be, by a strange caprice of the law, are not allowed any portion of the costs which they have incurred in defeat- ing it, when brought forward in this peculiarly harassing form." ° Fitzh. Nat. Brev. 135, H. « Viner, Abr. Warr. Ch. M. ' See infra, Ch. IX. on the Measure of Damages. 16 WARRANTY AND THE INTRODUCTION In the reign of Henry the Sixth, we find a case in which a warranty- contained in a lease for years was allowed to be used as a covenant.^ And in a remarkable case in the time of James the First, when the modern system of law was fully getting into use, we find a war- ranty contained in a conveyance of a freehold, allowed to be used as a covenant, when the adverse claim was under a term for years.^ Such is an outline of the law of warranty before it was super- seded by the covenants for title. When, exactly, and how these covenants first crept into use, cannot now be precisely determined. But it may not be impossible to at least conjecture their origin. So long as livery of seisin was necessary to the validity of the transfer of land, so long did warranty, which was essentially a covenant real, accompany the deed of feoffment. A personal cove- nant would have been an inappropriate element of such a form of conveyance. But the passage of the statute of Uses, towards the latter part of the reign of Henry the Eighth, introduced the con- veyances familiar at the present day, which, taking their effect 1 Year Book 32 Hen. VI. 32, A.D. 1517, cited in Brooke, Covenant, pi. 38; " If a man lease for years with warranty, and the lessee is ousted by title, action oi covenant lies against the lessor, and against his heir also if the ancestor had bound the heir to warranty.'' = Pincombe v. Rudge, A.D. 1609 ; Hobart, 3 ; Noy, 131 ; Yelverton, 139, af- firmed in Exchequer Chamber, 1 RoUe, 25. 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 war- ranty, and demanded damages from the warrantor, who pleaded a warrantia cliartm brought against him by them, which was still undetermined. On demur- rer to this plea, the question arose whether upon the clause of warranty annexed to a freehold, an action of covenant would lie, which was decided affirmatively, because, although the warranty was annexed to the freehold, yet the breach was not of a freehold, but of a chattel (viz., the lease for years, which had been the first estate created) , for which there could be neither a voucher, rebutter, nor warrantia chartce. See this case more particularly noticed, infra, Ch. VIII. This case must not be understood, as some have thought, as deciding that the remedy on a warranty was optionally covenant, but decided that when warranty failed as a covenant real, the courts would mould it into a covenant personal. In other cases, if used at all, the use was the ancient one. In Booth on Real Actions, 242, of which the first edition was published in 1701, he says: "This action, (warrantia chartce,) is brought rarely, though sometimes at this day it may be, for I remember one about twenty or twenty-two years ago before the justices at Chester. I conceive it was about 15 or 16 Car. II. Another there is, the last session at Chester Assizes, April 10, Will. III." OP COVENANTS FOR TITLE. 17 under that statute, passed the freehold without livery of seisin, and in a deed of bargain and sale or lease and release, a warranty, in its proper sense, would have been just as inappropriate as would have been a personal covenant in a deed of feoffment ; while the latter was eminently fitting. And hence it may be that we find, all through the reports of the time of Elizabeth, cases in which some of the covenants for title — generally, a covenant for seisin or of good right to convey — are used in conveyances taking effect by virtue of the statute of Uses. They are, however, generally couched in the briefest terms, and unaccompanied by other cove- nants. And by common consent it is considered that it was not until the time of the restoration of Charles the Second that the modern covenants for title were, in their present form, introduced into general practice, " being advised," we are told, by " the father of modern conveyancing," ^ Sir Orlando Bridgman, " during the time of his practice, when the unhappy circumstances in which the kingdom stood afforded no other means of safety to persons of his « loyalty and constancy than a strict retirement from public affairs." ^ These covenants were five in number, — first, that the grantor was seised of the estate which he purported to convey, called the covenant for seisin ; second, that he had a good right to convey it ; third, that the grantor should quietly possess and enjoy the premises without interruption, called the covenant for quiet enjoy- ment ; fourth, that such should be the case free and clear from all incumbrances, called the covenant against incumbrances ; and fifth, that such other assurances should be thereafter executed as might be necessary to perfect or confirm the title, called the covenant for further assurance. There is no evidence that the covenant in ' Preface to Bridgman's Precedents of Convey ancing. ' See an interesting article by Mr. Joshua Williams, " On the origin of the present mode of family settlements of landed property," in 1 Juridical Society Papers, 53, where he says that it was Bridgman who also introduced the prac- tice of limitations to trustees to preserve contingent remainders, which was done to provide against forfeitures in the time of Cromwell, and to guard against the effect of the decisions, in the previous century, of Chudleigh's case and Archer's case, 1 Coke, 66 6, 120. It is rather singular that Lord Campbell says nothing of Bridgman's labors in this field ; we hear only that he was eminent as a com- mon-law judge, though narrow-minded, and that, according to the judgment of some of his cotemporaries, he made a bad Chancellor; 3 Campbell's Lives of the Chancellors, 234. See, however, the preface to Bridgman's Judgments, and Foss's Judges of England, 123, &c. 2 18 WARRANTY AND THE INTRODUCTION such general use in this country, called " the covenant of warranty," ever had a place in English conveyancing.^ If the form in which these covenants for title was originally ex- pressed was short and simple, they soon lost this virtue ; and, as remuneration to the draftsman came to depend upon the length of the instrument, these afforded ample scope for redundancy of words ; and for nearly two hundred years " the luxuriant growth to which their verbiage had attained " ^ was the subject of great and just complaint. An attempt was made by statute, early in the present reign, to give to short forms all the effect of the covenants as usually expressed at length,^ but practically the act has remained a dead letter. But within the last ten years, refoi-m has reached the covenants for title, and in the most modern conveyances and books of precedents, they are. expressed with reasonable brevity.* The principal emigration to the American colonies took place dur- ^ing the latter half of the seventeenth century, and the settlers brought from their mother country so much of its laws and the mode of their administration as was deemed suitable to their new home. The more careful the study, not only of the early colonial convey- ances, the opinions of counsel, their commonplace books, &c., but also, and especially, of the colonial legislation, the more satisfac- tory is the proof that those of the settlers who were lawyers, added to great knowledge of their profession a comprehensive view of jurisprudence as a science. The skill with which so much of the common law — the growth of centuries — as was adapted to new institutions was retained or modified, was not more remarkable than some of the improvements of that law introduced by legislation, which was, as to some of these, a century and a half in advance of the mother country. Unfortunately, history has left little record of the early colonial lawyers, but the work they did tells its own story. Even if, at this time, warranty had not been superseded in England, its application would have been found impossible in a country in which primogeniture was not a part of the law of descent. For warranty descended only upon the heir at common ' See infra, Ch. VIII. ^ Williams on Real Property (9th ed.), p. 427. ^ 8 & 9 Vict. c. 119, one of the statutes known as " Lord Brougham's acts." * See infra, Ch. II. OP COVENANTS FOB TITLE. 19 law, — it operated as a rebutter on him alone, — it bound him alone to render other lands of equal value. In those parts of England where the peculiar tenures of gavelkind and borough-Bnglish pre- vailed, the hardship 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 exclu- sively by the youngest of them.^ In the earliest conveyances which remain of record in our colonial times are to be found some or all of the covenants for title, more or less simply or elaborately set forth, togetlier with, in general, a clause of warranty, literally translated, sometimes with and sometimes without the addition of words of covenant, from the warranty in use during feudal tenure. In this form, it has been preserved to the present day, and although there may be no distinct connecting link between the warranty of feudal times and the American covenant of warranty, it is impossible to deny that, in many of the United States, the latter has at times been clad with the mantle of the former, and considered to possess a certain potency altogether denied to the other covenants for title. A few scattered notes by reporters and an occasional chapter in a text-book, form the sum of what, apart from decisions, has been given to the profession upon the law of covenants for title, and the subject has never hitherto received a connected and separate ex- amination. In England, this is of less consequence, not only because, as will be hereafter seen, it has less practical importance than here,^ but because the number of its courts of concurrent jurisdiction is very small and the decisions extend througliout the breadth of the country, while upon this side of the Atlantic, where each State is, as to its courts, independent of the other, and, save in a certain class of cases, independent of any federal court of last resort, the difficulty of harmonious decision as to subjects not purely local, is, of course, enormously increased. Hence it is not strange that it should have 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 ^ Brooke's Abr. tit. Garranties, pi. 11 ; Assize, pi. 22 ; Litt. § 735, 736 ; Robinson on Gavelkind, 127. * See infra, p. 22. 20 WARRANTY AND THE INTRODUCTION OP COVENANTS FOR TITLE. rules which govern them, were and are less reduced to order, and less understood as a system, than almost any other similar branch of learning. Yet it will be found that far less practical contra- diction exists than might have been supposed. The cases admit of distinct, and in general, harmonious classification, and it is hoped that this attempt at their arrangement will show that, although lines of difference will occasionally be found somewhat strongly marked, yet that the law is not less satisfactory in this branch than in many others of equal importance.^ ' These remarks have been fully verified since the first edition of this treatise was published. THE " USUAL COVENANTS," ETC. 21 CHAPTER II. THE " USUAL COTENANTS," AND WHAT COVENANTS THE PURCHASER HAS A RIGHT TO EXPECT. Ant one who considers attentively the law of covenants for title must be struck with the disparity in number between the English and the American cases on the subject, — the latter being so much more numerous than the former. The reason is obvious. When warranty was first introduced in England, and for centuries after, such a thing as an ex|mination of the title, in the present meaning of the term, was unknown, and the vassal relied chiefly on the warranty of his lord for his protection. Hence the Year Books and the early treatises swarm with the law of warranty ; and when the illegitimate doctrine (for so it may fairly be termed) of collateral warranty was introduced, the cases increased in number and intricacy. ^ But towards the close of the seven- teenth century, with the comparative cessation of civil warfare and the steady improvement and increase in value of real estate, the law of vendor and purchaser began to assume that form which it has since substantially preserved. And as land became more the subject of transfer, its muniments of title were more readily yielded to the examination of the purchaser, and the latter came to depend rather upon that examination of the title than upon the covenants which were to assure it. This, of course, les- sened their practical use for the purpose for which the old war- ranty was at first intended and employed, viz., as a means of redress against loss of the land ; and as for its later use, the cove- nants for title were never suffered in England, as has been to some extent the case in America, to be applied to the purposes for which collateral warranty was used. .Hence the more careful the examination of the title, the less the use of the covenants, until, as was said by an eminent writer, " Purchasers, in general, attach ' See supra, p. 6 et seq. 22 THE " USUAL COVENANTS," AND WHAT COVENANTS more value to covenants for title than they deserve ; " ^ and hence, of course, the small number of cases to be found in the English reports.^ On this side of the Atlantic it is different. Apart from the obvi- ous reasons springing from the settlement of a new country, the English system of conveyancing, in its present advanced state, is by no means generally adopted ;^ lands are sold more frequently, and with less examination of the title ; * and sometimes, as when for example taken in payment of a debt, with no examination at all ; and then, too, an effect has here been, to some extent, given to the covenants, or some of them, in their operation by way of estoppel, which is altogether denied to them in England.^ Prom all these causes, the American reports are proportionally as full of ' 3 Preston on Abstracts of Title, 57. " Considering the property of parties, the chance of eventual insolvency, &c., covenants rarely produce the benefit which is expected from them," and he adds* " And when the property is sub- divided by sales, it seems to follow from a maxim of law, that the purchasers lose the benefit of the former covenants, on the ground that the remedy cannot be apportioned; or, in more correct terms, the covenantor cannot be subjected to several actions." But as to this, the law is now differently considered; see infra, Ch. X. ' As an illustration of this, it is seldom, on either side of the Atlantic, that a tenant, in the case of what are called " common leases" (i.e. where the terra is not a long one), examines his landlord's title; and for many years past, and at this day, of the small number of cases on covenants for title to be found in the English reports, by far the greater number — indeed nearly all — are cases on covenants contained in leases. ' Thus, even in large cities, where property is more valuable and the ex- amination of titles a matter of course, it is rare to find in an abstract of title, those accompanying afiidavits to substantiate ordinary recitals of pedigree, &c., which in England are almost universal ; see Moore on Abstracts of Title, 105, n. ; 2 Preston on Abstracts, 455; 3 id. 279; Dart on Vendors, 321. Thus Sugden says, speaking as a matter of course, " So, certificates of marriages, births and baptisms should be required to verify a pedigree, and certificates of burial to prove the death of parties, and the last receipt or other sufficient evidence of the payment of an annuity or jointure which has recently ceased by the death of the party entitled;" Sugden on Vendors (13th ed.), 344. * Even in 1809, when New York had been settled for a century and a half, Spencer, J., said in Pitcher v. Livingston, supra: "From my observation and knowledge of the sale of lands, I think the defect of title is a matter generally, and almost universally, in the knowledge of the vendor. It is a rare case for a purchaser to investigate the seller's title, and, in most cases, it is impossible." This, though, was said in a dissenting opinion. * See infra, Ch. XI. THE PURCHASER HAS A RIGHT TO EXPECT. 23 cases upon the subject of covenants for title as the Year Books were with cases upon the subject of warranty. But even in England, however rigid the examination of the title, and however willing courts might be to carry out the doctrine which, before the consummation of the contract by execution of the deed, protects the purchaser's right to a title clear of defects and incumbrances, yet, while so doing, they also continued to rec- ognize and enforce liis right to covenants for the title. ^ As to this, therefore, — the general and abstract right of the purchaser to receive, covenants for title^ from his vendor, — there is no dif- ference in the law of tile two countries. It is proposed, then, to consider, first, what are the usual cove- nants on both sides of the Atlantic, and, secondly, the extent of those covenants relatively to the different classes of vendors. And, first, wliat are " the usual covenants." The very use of the word " usual " excludes, of course, that which is universal, and it is only possible, therefore, to give a general idea of what is customary as to this. In England tlie modes of assurance in which covenants for title are contained, are for the most part — 1. Sales, in the popular sense, that is, sales of an estate in fee- simple. 2. Mortgages. ' "If," said Lord Eldon in Church v. Brown, 15 Ves. 263, "a man cov- enants to sell a fee-simple estate, free from all incumbrances, and says no more, it is clear that covenant carries in gremio, and in the bosom of it, the right to proper covenants. Why? Because that sort of engagement has in all times been carried into execution in a form and mode which alter most materially, sub- stantially, and importantly, the effect of the mere conveyance." Davidson observes, "Although it seems to have been formerly held that the right to covenants for title was not implied by the mere agreement to sell, yet the contrary is now established by the practice of conveyancers and the authority of the courts ; " 1 Davidson's Conveyancing (3d ed.), 113. " " The covenants for title," says Mr. Dart, " are that part of the draft upon which disputes and questions of difficulty most frequently arise ; they are of considerable, although, perhaps, to a purchaser, of rather over-estimated impor- tance ; to the solicitor, they are important, inasmuch as he will be responsible to his client for permitting him unknowingly to enter into improper covenants, or for not securing to him those to which he is entitled from the other party ; " Dart on Vendors, 498, citing Stannard v. Ullithorne, 10 Bingham, 491, in which case the attorney was held liable, although the vendor was, at the time, aware of the fact in respect of which the liability on the covenant was incurred. 24 THE " USUAL COVENANTS," AND WHAT COVENANTS 3. Assignments or tranfers of leasehold interests. 4. Common leases. And the covenants are dififerent in each of these classes. 1. As to sales of an estate in fee-simple. — To a layman, it would seem plain that if one were to undertake to convey an estate in fee-simple which he professed to hold in his own right and not fiduciarily, he must himself be seised of such an estate ; and yet, until recently, it was a common practice of conveyancing in England, for the purpose of saving the expense, upon a resale, of levying a fine whereby to bar the dower of the wife, to cause property, upon its purchase, to be conveyed to such uses as the purchaser should appoint, and in default of appointment, to the use of the purchaser and his heirs. ^ And it has been, perhaps, owing to this custom that the covenant for seisin has been, for more than half a century, generally omitted in England, and in its place substituted the covenant for good right to convey. And although by a recent act of Parliament,^ the estate of the wife is now passed, as with us, by a simple separate acknowledgment, yet it seems to be customary, in the most modern conveyancing, to omit the covenant for seisin.^ ' It was once held by Chief Justice Eyre, in Goodill u. Brigham, IBos. & Pull. 192, that a power was inconsistent with an estate in fee-simple, the latter being of 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 Maundrell v. Mauudrell. But on the argument of that case before Lord Eldon (10 Vesey, 264), he said that the case of Goodill v. Brigham was not the law ; that it had always surprised him, and was contrary to the experience of practical conveyancers, who were 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. ^ 8 & 4 Will. IV. c. 74. ^ When used, however, the covenant for seisin is said to be thus expressed : " And the said (grantor) doth hereby for himself his heirs executors and administrators covenant with the said (grantee) and his heirs and assigns that he the said (grantor) is now seised to him and his heirs of a good sure sole lawful absolute and indefeasible estate of inheritance in fee-simple of and in the said messuage &c. hereby released or otherwise assured or intended so to be and every part and parcel of the same with the appurtenances without any con- dition trust power of revocation or of limitation to use or uses or any other power restraint cause matter or thing -ffhatsoever to alter change charge defeat revoke make void abridge lessen incumber or determine the same THE PURCHASER HAS A EIGHT TO EXPECT. 25 The usual covenants then, in the case of a sale, are those of good riglit to convey, for quiet enjoyment, against incumbrances,^ and for further assurance ; and they are generally expressed as follows : ^ And the said (vendor) doth hereby for himself his heirs executors and administrators covenant with the said (purchaser) his heirs and assigns that [notwithstanding any thing by him the said (vendor) or any of his ancestors or testators done omitted or knowingly suffered^] he the said (vendor) now hath power to grant all the said premises hereinbefore expressed to be hereby granted to the uses hereinbefore declared And that the said premises shall at all times remain and be to the use of the said (purchaser) his heirs and assigns and be quietly entered into and upon and held and enjoyed and the rents and profits thereof received by the said (purchaser) his heirs and assigns accordingly without any interrup- tion or disturbance by him the said (vendor) or any person or persons whomsoever [claiming through or in trust for him (or any of his ances- tors or testators)*] And that free and discharged from or otherwise by him the said (vendor) liis heirs executors or administrators sufficiently indemnified against all estates incumbrances claims and demands [created occasioned or made by him the said (vendor) or any of his ancestors or testators or any person claiming through or in trust for him them or any of them] And further that he the said (vendor) and any persons hav- ing or claiming any estate right title or interest in or to the said premises or any of them through or-in trust for him or any of his ancestors or tes- tators will at all times at the cost of the said (purchaser) his heirs or assigns execute and do every such assurance and thing for the further or more perfectly assuring all or any of the said premises to the use of the said (purchaser) his heirs and assigns as by the said (purchaser) his heirs or assigns shall be reasonably required/ estate or any part or parcel thereof; " Piatt on Covenants, 306. This form is somewhat long, but so are all those given by Piatt. In the more modern books, there is no form of this covenant given. ' In American conveyancing, the covenant against incumbrances usually pre- cedes that for quiet enjoyment. ^ It is scarcely necessary to observe that in all well-ordered conveyancing the covenants for title are almost universally inserted at the end of the deed, immedi- ately before the attestation clause. ' The words within brackets [ ] in the preceding and succeeding forms are those limiting the covenants to the acts of the vendor, &c., a subject which will be presently considered. ' It was customary until quite lately, and perhaps is still so, to add here the words, "or by or with his or their acts means consent default privity or procurement.'' For the construction given to these words see infra, Ch. VI. ° This and most of the English forms here given are taken from " Davidson's 26 THE " USUAL COVENANTS," AND WHAT COVENANTS 2. In cases of mortgages, it is said to be usual in England to insert the covenants for title used in cases of sales, except, how- ever, as will be hereafter seen,i that the covenants are not re- stricted to the acts of the mortgagor, but are against the acts of all claiming by title. 3. In the assignment or transfer of a leasehold interest, the usual covenants are, that the lease is a valid and subsisting one, that its covenants have been hitherto performed by the assignor (though this is not strictly a covenant for title), and for quiet enjoyment, and they are generally thus expressed: — Precedents and Forms of Conveyancing " (3d ed. 1860), which is an approved modern standard work. Reference may also be had to Jarman's Conveyancing by Sweet; 2 Hughes's Practice of Sales of Real Property, 9, Appendix; Hous- man's Handbook of Precedents in Conveyancing (London, 1861) ; Clayton's Elements of Conveyancing (London, 1855) ; and the forms in the statute of 8 & 9 Vict. c. 119, which were intended to be supplied by the short forms given in the opposite column. In the last named work, the following very concise form of all the covenants is given : " And the said (grantor) for himself and his heirs but for and against the acts and defaults only of himself and his ancestors and all persons claiming or to claim through under or in trust for him them or any of them covenants with the said (purchaser) his heirs and assigns that he the said (grantor) hath power hereby to convey the said purchased premises in manner aforesaid free from incumbrances and that the said premises shall henceforth be held and enjoyed accordingly and shall at any time -or times at the costs of the person or persons requiring the same be further and more effectually or satisfac- torily assured to the use of the said (purchaser) his heirs and assigns in manner aforesaid or otherwise as he or they shall direct by such acts deeds or other assur- ances as he or they shall reasonably require and tender to be executed," p. 206. As a contrast to this conciseness, and as evidence of the improvement in this respect in English conveyancing, a single specimen — that of the covenant against incumbrances — ■ is given of the form in. use when Piatt's treatise was published, in 1829: "And that free and clear and freely clearly and absolutely acquitted exonerated released and discharged or otherwise by him the said (vendor) his heirs executors and administrators at his and their costs and charges in all things well and sufficiently protected defended saved harm- less and kept indemnified of from and against all and all manner of former and other gifts grants feoffments leases mortgages bargains sales jointures dowers right and title of dower uses trusts wills entails annuities legacies rents arrears of rent fines issues amerciaments statutes recognizances judgments executions extents suits decrees debts of record debts to the king's majesty or any of his predecessors sequestrations estates titles troubles liens charges and incumbrances whatsoever ; " Piatt on Covenants, 330. In conveyances, as in drafts of statutes, there should be no punctuation, " for no one would wish the title to his estates to depend on the insertion of a comma or semicolon ; " Williams on Real Property, 188. ' Infra, p. 31. THE PUECHASER HAS A RIGHT TO EXPECT, 27 " Doth hereby covenant with the said (purchaser) his executors admin- istrators and assigns that [notwithstanding any thing by him the said (vendor) done omitted or knowingly suffered] the hereinbefore recited indenture of lease of the day of is now a valid and subsisting lease of the said premises hereinbefore expressed to be hereby assigned and is in no wise void or voidable And that [notwith- standing any such thing as aforesaid] all the rents covenants and con- ditions in and by the said indenture of lease reserved and contained and on the part of the lessee his executors administrators and assigns to be paid performed and observed have been paid performed and observed up to the date of these presents And that [notwithstanding any such thing as aforesaid] he the said (vendor) now hath power to assign all the said premises hereinbefore expressed to be hereby assigned unto the said (purchaser) his executors administrators and assigns for the term for which the same are hereinbefore expressed to be hereby assigned. And that it shall be lawful for the said (purchaser) his executors administra- tors and assigns at all times during the said term quietly to enter into and upon and hold and enjoy the said premises." * 4. In " common leases,^' as they are called, that is, where the term is a short one, the usual covenant, and the only one generally enaployed, is that for quiet enjoyment, and as the title is, in general, not examined by the tenant, the covenant is not limited to the acts of the vendor.^ These, then, are the " usual covenants for title," and the forms in use at the present day in England. As to those upon this side of the Atlantic, of course the local habit and usage varies not only more or less widely between the different States, but sometimes indeed between different parts of the same State ; but it may, perhaps, in general be said that what are here often called " full covenants" are the covenants for seisin, for right to convey, against incumbrances, for quiet enjoyment, sometimes for further assurance, and, almost always, of war- ranty, — this last often taking the place of the covenant for quiet ' 2 Davidson, 192. ° See infra, p. 32. And the form of the covenant generally is, " that he the said (lessee) paying the said rent hereby reserved shall at all times quietly enjoy " &c. ; but it has been held that this does not amount to a condition precedent, and that the covenantor will be held liable on the covenant, even although the rent should be in arrear; Hayes u. Bickerstatf, 2 Modern, 35; Dawson v. Dyer, 6 Barn. & Adolph. 684; Bartlett v. Greenleaf, 11 Gray (Mass.), 98. 28 THE " USUAL COVENANTS," AND WHAT COTENANTS enjoyment ; ^ and the following form of these covenants is perhaps more generally used than most others : — " Doth hereby covenant for himself his heirs executors and administra- tors that [notwithstanding any act matter or thing by him done] he the said (vendor) is now lawfully seised ^ of the said premises And hath good right to convey the same That the same are free from all incumbrances [done suffered or committed by him] And that the s^id (purchaser) his heirs and assigns shall and may at all times hereafter freely peaceably and quietly enjoy the same without molestation or eviction of him the said (ven- dor) or any person or persons whomsoever [lawfully claiming or to claim the same by from or under him them or any of them ** ] And that he the said (vendor) shall at all times hereafter at the request and expense of the said (purchaser) his heirs and assigns make and execute such other assurances for the more effectual conveyance of the said premises as shall be by him reasonably required And that he the said (vendor) and his heirs all and singular the messuages and tenements &c. hereby granted and mentioned or intended so to be with the appurtenances unto the said (purchaser) his heirs and assigns against him the said (vendor) and his heirs and against ' There are many States in which the covenants for title, or some of them, are, by statute, impUed from the words of grant of the conveyance, at least so as to assure the estate to the purchaser as far as the acts of the vendor are con- cerned (as to which see Chapter XII) ; and where such is the case, the covenant for seisin, being usually one of those thus implied, is often entirely omitted in express words, and the only covenant expressed is that of warranty. ^ In Hagler v. Simpson, Buzby's Law R. (N. C.) 384, the grantor cove- nanted that he was " signed " (in mistake for " seised ") of an indefeasible estate, which the court held to be fatal to the grantee's recovery thereon, as it had no power in that form of action to correct the mistake. ' The covenant for quiet enjoyment as generally expressed in ground-rent deeds in Pennsylvania, is, " that the said (grantee) his heirs and assigns paying the said yearly rent and taxes or extinguishing the same by purchase and per- forming the covenants and agreements aforesaid shall and may at all times here- after forever freely " &c. It is obvious, however, that any apt words showing the intention of the parties, will amount to such a covenant. Thus " to hold free and clear from me my heirs &c. and from all other persons whatsoever " (Midgett V. Brooks, 12 Iredell (N. C), 147) ; and " to hold and enjoy the said premises peaceably and quietly for the said term " (Levintsky v. Canning, 33 California, 299), were respectfully held to be covenants for quiet enjoyment. So with respect to the covenant for further assurance, where a, deed, in itself sufficient as a present conveyance, contained a clause in the habendum that the grantee should hold the premises to his heirs and assigns forever, and a covenant to make a good and sufficient deed with a warranty of title when required, this was held in Davis v. Tarwater, 15 Arkansas, 288, to be a present conveyance of the fee with a covenant for further assurance, and not a mere agreement to convey. THE PURCHASER HAS A RIGHT TO EXPECT. 29 all and every other person or persons lawfully claiming or to claim the same or any part thereof shall and will by these presents warrant and forever defend." ^ There is another covenant sometimes employed, particularly, it would seem, in the New England States, called the covenant of non-claim,^ whose form is generally as follows : — " So that neither'the said (vendor) nor his heirs nor anytother 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 but of and from all such claims and demands shall be utterly debarred and forever excluded by virtue hereof." As a general rule, there is no practical difference between this covenant and the covenant of warranty.^ These, then, are the " usual covenants " in use on both sides of the Atlantic, and we proceed to consider the extent of those covenants relatively to the different classes of grantors. These classes are three. I. Those who convey by sale, mortgage, or otherwise, estates of which they are seised in their own right. II. Fiduciary grantors, such as trustees, executors (whether conveying in exercise of a power or under authority of a decree), mortgagees with power of sale, assignees of bankrupts, insolvents, and the like. ' The following form of the covenants for title is, by a late text-writer of authority, said to be in common use in New England: " I [A B] for myself my heirs executors and administrators do covenant with [C D] his heirs and assigns that I am lawfully seised in fee-simple of the aforegranted premises that they are free from all incumbrances that I have a good right to sell and convey the same to the said [C D] his heirs and assigns forever as aforesaid and that I will and my heirs executors and administrators shall warrant and defend the same to the said [C D] his heirs and assigns forever against the lawful claims and demands of all persons ; "' 3 Washburn on Real Property, *610, n. On the other hand, in the very recent case in Rhode Island of Greene V. Creighton, 7 Rhode Island, 1, the covenant sued on — that against incum- brance — was expressed nearly as fully as in the older English form given supra, p. 26, n. ; and the deed (made in 1854) was said to contain " full covenants of warranty according to the form used in this State.'' ^ This covenant is also used in Pennsylvania in a deed of extinguishment of a ground rent. ' The exception to this rule is noticed infia, Ch. XL 30 THE " USUAL COVENANTS," AND WHAT COVENANTS III. Ministerial grantors, such as sheriffs, marshals, tax-col- lectors, &c. I. Those who convey estates of which they are seised in their own right, and not fiduciarily. When in England the examination of the title became a matter of course, and vendors who brought their estates into the market were forced to comply with certain rules which it was held the pur- chaser had a right to exact, it was naturally thought unreasonable that he should receive covenants against the acts of all persons, and the extent of the covenants which a purchaser had a right to expect, soon became matter of regulation ; and it is now well set- tled, both in point of authority and practice, that a purchaser has no right to demand from his vendor covenants of greater scope than against his own acts. " If a man purchase an estate of inheri- tance," said Lord Eldon,^ " and afterwards sell it, it is to be un- derstood prima facie that he sells the estate as he receives it, and the purchaser takes the premises granted by him, with covenants against his acts. This seems at first to involve a degree of injus- tice, but it all depends on the fact whether the vendor be really putting the purchaser into the same situation in which he stood himself. If he has bought an estate in fee, and, at the time of the resale, has but an estate for life, it must have been reduced to that estate by his own act, and in that case the purchaser will be protected by the vendor's covenants against an act done by himself. But if the defect in his title depend upon the acts of those who had the estate before him, and he honestly but igno- rantly proposed to another person to stand in his situation, neither hardship nor injustice can ensue. What is the common course of business in such case ? An abstract is laid before the purchaser's counsel, and though to a certain extent he relies on the vendor's covenants, still his chief attention is directed to ascertaining what is the estate, and how far it is supported by the title. The purchaser, therefore, not being misled by the vendor, makes up his mind whether he shall complete his bargain or not ; and, if any doubt arise on the title, it rests with the vendor to determine whether he will satisfy these doubts by covenants more or less extensive. Prima facie, therefore, in the conveyance of an estate of inheritance, we are led to expect no other covenants than ' Browning v. Wright, 2 Bos. & Pall. 23. For the connection in which these remarks were made, see infra, Ch. XII. THE PURCHASER HAS A RIGHT TO EXPECT. 31 those which guard against the acts of the vendor and his heirs." ^ It naturally follows that where the Tenders are tenants in com- mon, they covenant severally, and their covenants are restricted to their several undivided shares,^ and though joint tenants some- times covenant jointly, yet this is, with reason, deemed objec- tionable.^ Where a wife's estate is sold by her and her husband, he enters into the same covenants as would be required from her if sole.* ' See, in accordance with this view, Church v. Brown, supra, and two opin- ions in 2 Powell's Conveyancing, 206-209. So it was said in the very recent case of Thackeray v. Wood, 6 Best & Smith (Q. B.), 773 : " The operation of a qual- ified covenant for title is well known, and has been established by a series of cases, and I do not feel justified in departing from the construction established by those decisions. Upon a sale of real property it is for the purchaser to determine what the title of the vendor is, p,nd to satisfy himself that he has a good title. The vendor then makes a conveyance, and usually covenants that he has done no act to affect or derogate from his title. If the vendor had no title at all to the property conveyed, there would be no breach of such a covenant." The following re- mark of Mr. Fearne occurs in his posthumous works : "A vendor who purchased the estate himself should covenant only against his own acts, and the acts of all claiming under him, where the title is well deduced, and the identity of the lands conveyed to hira, and those sold by him, is apparent ; but if the title of the vendor is questionable, he should covenant generally ; and if the lands conveyed, owing to any alteration in them or otherwise, do not evidently appear by the description of them in the purchaser's deed of conveyance to be the same con- veyed to the vendor, the vendor should further covenant that they are part of the estate conveyed to him by his vendor," p. 110, 118. ^ 1 Davidson's Conveyancing, 114. So in Massachusetts, where the ven- dors, tenants in common, were " to give a good and sufficient warranty deed, they made and tendered," said the court, " a deed in which each grantor warranted his several share, but not that of his co-grantors. This is clearly right. The purchaser was to have a warranty of title from him who conveyed, but not also a guaranty from others. If several deeds had been made with several covenants, the terms would have been complied with. The legal effect is the same in a joint deed with several covenants ; " Coe v. Harahan, 8 Gray, 198. ' " Because their so doing makes all liable originally for the acts of each, and leaves the whole burden on the survivors for the time being, and ultimately on the longest liver; " 1 Dav. Con. 114. ■* Sugden on Vendors, 464. There is a familiar class of cases which in Eng- land, as in some of our own States, treat a married woman's liability as to her separate estate, as if she were a feme sole; Note to Hulme v. Tenant, 1 Lead- ing Cases in Eq. 494 ; and Davidson's Conveyancing contains the following form of a covenant by a married woman in a conveyance executed by virtue of a power: "And the said (husband) doth hereby for himself his heirs executors and administrators and she the said (wife) in e-xercise of her aforesaid power and of every or any other power or authority enabling her in this behalf and to the intent to charge and bind her separate estate doth hereby for herself her heirs executors and administrators covenant with the said (purchaser) his heirs 32 THE " USUAL COVENANTS," AND WHAT COVENANTS An exception to the rule that the covenants are thus limited, is in the case of a mortgage, in which, it would seem, a mortgagor always gives unlimited covenants for the title, as those who lend money are accustomed to require every possible security for its repayment,! and to some extent, such would also seem to be the practice on this side of the Atlantic.^ In some of the States, as in Pennsylvania, mortgages contain no covenants for the title.^ It has, moreover, been already said that in common leases, as the title is not inspected, the lessor should covenant against all per- sons whomsoever.* Where, however, the vendor does not claim by purchase, in the popular signification of the term, that is, by way of sale for a valuable consideration, a purchaser is entitled, as a gen- eral rule, to require covenants extending to the acts of the last person who thus claimed by purchase,^ " and this," says Sug- and assigns that notwithstanding any thing by her the said (wife) done " &c. ; 2 Dav. Con. 421. ' Williams on Real Property, 348 ; Cripps v. Reade, 6 Term, 606 ; Sugden on Vendors (13th ed.), 443 ; 1 Dav. Con. 115 ; Houseman's Conveyancing, 52, 207. 2 Lockwood V. Sturdevant, 6 Conn. 384 ; Lloyd v. Quimby, 5 Ohio State R. 262; Butler v. Seward, 10 Allen (Mass.), 466. ^ Except those implied by statute from the words " grant, bargain, and sell ; " see infra, Ch. XII. ■* Barton's Conveyancing, 75, see Calvert v. Sebright, 15 Beavan, 156. "An apparently simple point," says Mr. Dart, "which must be of common occurrence, but upon which the books of precedents were found to differ, arose in practice, viz., whether on a sale of leaseholds by a vendor who claimed by purchase he was bound to covenant generally that the covenants in the lease had been performed up to the time of completion, or whether words should be introduced limiting his liability to breaches of covenant which might have occurred during his own period of ownership. The point being referred by both sides to the writer, he considered that the covenant was in effect merely a covenant for title, and therefore fell within the ordinary rule and must be re- stricted as contended for, on behalf of the vendor ; and this opinion, although at first questioned, was, upon consideration, assented to by eminent conveyancers. And although upon the sale of leaseholds by a vendor who claims by purchase, a covenant that the lease is valid is usually introduced, it is now settled that the covenant is qualified, extending only to his own acts and omissions and those of any testator or intestate through whom he claims ; see 2 Dav. Con. 201 (8d ed.) ; " Dart on Vendors (4th ed.), 603. ' In the old case of Pool v. Pool, 1 Chancery Reports, 18, " the plaintiff being ordered to perform his father's covenants refused, insisting that he is not chargeable with his father's covenants as heir, the land being conveyed to him — nor as executor, having no assets. This court ordered that the said plaintiff shall seal the said covenant according to the said articles of his father, and thereby THE PURCHASER HAS A EIGHT TO EXPECT. 33 den,i " is the universal and settled practice of conveyancers. For instance, if I sell an estate which was devised to me, and the de- visor's father purchased the estate, the covenants for title are extended to the acts of the father," ^ and on this side of the Atlantic the same practice has been often recognized.^ The tlieory of English conveyancers, in thus obtaining cove- nants against the acts of all those not actually claiming by pur- chase, is, that there may be no one in the chain of title against whose acts there is not a covenant.^ covenant to free the premises from leases and incumbrances, or stand committed to the Fleet." In referring to this ease in Hill v. Ressegieu, 17 Barbour (N. Y.), 167, the court said, " no doubt the son had notice, and I suppose these covenants were against his own acts." ' Sugden on Vendors, 463 ; and he adds : "A person claiming under a vol- untary conveyance is considered in the same light as a devisee." Mr. Dart, little inclined, in general, to agree with Sugden, cites the sentence in the text without dissent, and adds : " The courts would probably at the present day be inclined to sanction such practice by decision ; " Dart on Vendors (4th ed.), 500. ' This rule has not, however, been always adopted by the Court of Chancery. Lord Hardwicke once said that he had never heard nor did he know of such a rule; " it would be unreasonable to extend the covenants to the first purchaser, when a family have been for several generations in possession of the estate, for they may have had the benefit of the statute of 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 see this case, infra, p. 45. ^ Hill V. Kessegieu, supra; Hyatt?). Seeley, 1 Kernan (N. Y.), 56; Holman V. Criswell, 15 Texas, 399. '' "Although in theory," says Sugden (Vendors, 464), "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 is entitled to no such thing, but must rest content with the covenants obtained by former owners, whether they run with the land or are collateral to it, and whether they keep up the chain of lia})ility, or leave it altogether broken and disconnected. This observation does not apply to the covenants for title to which a purchaser is entitled from his immediate seller." In " Hum- phrey on Real Property,'' a work not more remarkable for the concise and clear view of the actual law which it contains, than for the deficiency of the code by which the learned author proposed to remedy the evils he so pointedly showed to exist, he remarks : " The professed rule is, that there should be a chain of cove- nants throughout the title, connecting those of the alienor with those of the preceding owner who has last covenanted. To this rule, however, there are the following several objections of expediency and of precedent. First, such a qualified warranty never actually enters the contemplation of the contracting parties. Whoever acquires land at its full value, expects an equally complete 3 34 THE " USUAL COVENANTS," AND WHAT COVENANTS But it is difficult to determine by general and precise rule, what, on this side of the Atlantic, are " the usual covenants," — that is to say, the covenants which a vendor is obliged to give and which a purchaser has a right to expect, — as, owing to various causes, the practice of conveyancing differs widely in the two countries.^ It is obvious that much of the practice which prevails where the state of society has long been permanent, the titles old, and to a greater or less extent carefully examined at every purchase, loses its appli- cation in a comparatively new country, and the same covenants which might satisfy a purchaser in England or Massachusetts might not satisfy a purchaser in Texas or California. As precision of conveyancing increases, a purchaser is less anxious for general covenants than where he buys in comparative ignorance of the title, and relies upon such covenants for his protection.^ Hence, a great difference will be found to exist between the practice on this point, not only on the different sides of the Atlantic, and between different States, but even between different parts of the same State.^ Thus in Pennsylvania it is decisively settled that, as a general rule, a purchaser has no right to expect covenants of greater scope than against the acts of the vendor and those claiming under him, or indefeasible title to it. The notion of concatenated fraction.s of an entire obligation, rendering the alienor answerable for the faults of the first link only, and then referring the alienee, for all prior defects, to the exhausted assets of long-deceased strangers, is too reyolting to suppose it would be accepted, as a guarantee, by any purchaser to whom it was once explained. Should it be urged, you have the title to inspect, he would reply, such are the complications of real property, and the inadequate means of searcli, that with all reasonable dili- gence, defects must often remain undiscovered, and a purchaser is not concluded by latent faults. Under the Roman law, the seller, on the eviction of the pur- chaser, was answerable to him for the loss, under certain qualifications interposed for the protection of the former. The Code Napoleon (1826-1840), in framing which both precedent and principle were fully discussed (and the subject is a gen- eral one), imposes an absolute warranty on a seller, in case of eviction, to be answered in damages, the amount of which is chiefly regulated by the price, and by subsequent permanent improvements ; " Humphrey on Real Property, 77. ' 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. " See the remarks of Huston, J., in Whitehead v. Carr, 6 Watts (Pa.), 369, and Spencer, J., in Pitcher v. Livingston, 4 Johns. (N. Y.) 14. ' The remarks in the text were cited and approved in the case of Dwight v. Cutler, 3 Michigan, 577, infra, p. 38. THE PURCHASER HAS A EIGHT TO EXPECT. 35 and that an agreement to convey " by a warranty deed " means a deed with special warranty/ while at the same time it is considered that no suspicion of the title can properly arise in case the deed should contain general covenants.^ In the large cities of that State, it is believed that in ordinary cases, a covenant of warranty, limited to the acts of the vendor and those claiming under him, and, in some instances, carried back to the last person claiming by purchase,^ is the only express covenant for title inserted in the conveyance. But while this is so, it is believed that outside of the cities, a pur- chaser 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 against his own acts, he must know there is something defective about the prior title. In a somewhat recent case in the Supreme Court of the United States,* Story, J., referred to a deed with special warranty only, as being " a significant circumstance," in affecting a purchaser with notice of a paramount title.^ But there would appear to be equal reason for the opposite argument, that a deed with general warranty was as significant a circumstance, — that unless there had been something wrong about the title, the purchaser would not have demanded a general covenant, and that he intended to run the risk ' Withers v. Baird, 7 Watts (Pa.), 229 ; Espy v. Anderson, 2 Harris (Pa.), 312 ; Cadwalader v. Tryon, 1 Wright (Pa.), 322 ; Lloyd v. Farrell, 12 id. 78. ' Cresson v. Miller, 2 Watts (Pa.), 276; Forster v. Gillam, 1 Harris (Pa.), 343. "General warranties," said Gibson, C. J., in Cresson v. Miller, "are taken ex dbundante cautela, and not because the purchaser had the least reason to suspect that the title was defective. A purchaser taking a deed with a general warranty forms not the slightest presumption that the title he received was doubtful, or that he knew it to be such. The idea seems to be, that if he fails to recover the land, he has his remedy over against the vendor ; and that, therefore, he can be in no better situation than the vendor. It is apparent, how- ever, that in a great majority of instances, a vendee cannot obtain adequate relief. Without insisting upon the occasional insolvency of the vendor, he can- not be compensated for the increased value of the land, arising from his industry and skill, or from the employment of his capital in erecting valuable improvements on the premises." ' Thus, in case of a conveyance by heirs or devisees, it is believed to be cus- tomary to extend the covenant to the acts of the intestate or testator, and some- times, as stated in the text, they are carj-ied back to the last person claiming by purchase in its popular sense ; see supra, p. 32. * Oliver u. Piatt, 3 Howard (U. S.), 410. * Such also seems to have been thought in Woodfolk ». Blount, 3 Haywood (Tenn.), 147. 36 THE " USUAL COVENANTS," AND WHAT COVENANTS of the defect, and rely on the covenant for his protection. In the absence of local usage, it would seem that no presumption of notice can properly arise, either from the absence or presence of unlimited covenants, and where it is, as some of the cases say, the invariable usage in a State to insert general covenants, the pres- ence, in the deed, of limited covenants is only a ground of pre- sumption of mutual knowledge, or, at least, of suspicion, of some defect of title.^ In Massachusetts, there are two kinds of deeds in general use, — a " warranty deed," and a "quitclaim deed," — the form of which, as given by the latest authorities, is exactly similar, with the exception of the covenants for title. In the " warranty deed," these are that the grantor is seised in fee-simple ; that tlie prem- ises are free from incumbrances ; that he has good right to sell and convey them ; and that he and his heirs, executors and admin- istrators will warrant and defend them to the grantee and liis heirs and assigns forever against the lawful claims and demands of all persons, — in other words, the covenants are general or unlimited : in the " quitclaim deed," the covenants are that the premises are free from all incumbrances made or suffered by the grantor, and that he and his heirs, executors and administrators shall warrant and defend the same to the grantee, his heirs and assigns, against the lawful claims and demands of all persons claiming by, through or under him, but against none other, — in other words, the cov- enant for seisin and right to convey are omitted, and the covenants* against incumbrances and of warranty are limited or qualified.^ ' Miller u. Fraley, 23 Arkansas, 748; Lowryu. Brown, 1 Coldwell(Tenn.),469. ^ Crocker's Notes on Common Forms (2d ed.), 4, 90. Without this explana- tion, the case of Kyle v. Kavanagh, 103 Mass. 359, might mislead, as it was there said by the court: "The plaintiff, requested the court to instruct the jury that if by the contract ' the defendant was to take his conveyance from the grantor if he found the title good in him, all he could claim was a quitclaim deed.' The court instructed the jury that the defendant was entitled to a warranty deed unless he waived it and agreed to take some other form of conveyance. We are of opinion that this ruling was erroneous. . . . If the grantor has, in fact, a good title, his deed of quitclaim conveys his title and estate as effectually as a deed of warranty. An agreement or covenant to convey a good title, therefore, does not necessarily entitle the covenantee to a warranty deed." This, however, meant that in Massachusetts, as in England, a vendor is not required to covenant beyond his own acts, and, therefore, that a quitclaim and not a warranty deed should be given. Indeed, from the terms of the contract of sale in that case, the latter could not have been required from the vendor. THE PURCHASER HAS A RIGHT TO EXPECT. 37 In Virginia, it has been consistently held that the practice is diiFerent from that in England, and that a general covenant of warranty is usually required and given. ^ So in Kentucky, it was held at an early day to be both the settled rule and tlie practice in that State, that unless there were a special contract to the contrary, a general covenant of warranty must be given ; ^ and such seems to be still the rule.^ So in Michigan, it has been held that the ' Rucker v. Lowther, 6 Leigh (Va.), 259, where it was said to be " admitted in the argument, and rightly, I think, that, upon an agreement for the sale of lands, the vendor is to be considered as contracting for a general warranty, unless the contrary is expressly provided." See Dickinson v. Hoomes, 8 Grat- tan, 394, where the language of Lord Eldon, in Browning u. Wright, siyjra, p. 30, was quoted and contrasted with the Virginia practice, which, in the recent case of Goddin V. Vaughn, 14 Grattan, 117, it was said " may not be questioned." ^ Steele v. Mitchell, Kentucky Decisions, 47. This volume of reports being rare until its recent reprint, the following extract is inserted from the opinion: "Where a conveyance is to be made, for a valuable consideration of a general nature, a warranty is universally held to be an essential part of the deed or assurance ; and unless in those cases where it is otherwise provided by special contract, a general warranty is as universally expected. It need not be observed, that this opinion and expectation is certainly authorized by the general principles of justice, as well as by the universal custom of this country, and that from which we derive most of our legal precepts. The appellee was only willing to convey with special warranty, and the appellant refused to accept a conveyance without general warranty. Then the only question of con- sequence which arises in the suit is, what is the rational import of the words of this bond (which was conditioned to make a deed for the premises), relative to the matter in dispute ? . . . This court is of opinion that to comply with the legal intent of the bond in question, such a deed as is customary in like cases should be made ;■ that is to say, a deed with general warranty ; and consequently that the District Court erred in decreeing a deed with only special warranty. This opinion is supported by the doctrine on warranties, which has been sug- gested ; 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 seems to dictate that when any person seems to limit his con- tract in the sale of lands, it is his business to have it expressed ; otherwise the presumption ought to be that he undertakes to make a good title, or a deed which will insure the land, or its value, to the purchaser." ' Fleming v. Harrison, 2 Bibb (Ky.), 171 ; Vanada v. Hopkins, 1 J. J. Mar- shall, 293 (see Bodley v. M'Chord, 4 id. 475) ; Hedges v. Kerr, 4 B. Monroe, 628; Andrews v. Word, 17 id. 520. In Slack v. Thompson, 4 Monroe (Ky.), 462, the express agreement was to give a covenant of quiet enjoyment, " without any trouble or molestation whatever; " and the terms of the agreement would of themselves have been sufficient to prevail even against an opposite usage to the contrary. 38 THE " USUAL COVENANTS," AND WHAT COVENANTS tender of a deed containing covenants against the acts of the ven- dor only, was not a compliance with an ordinary contract of sale.^ So in Indiana, a bond conditioned " for making a lawful title " was held to require " a general warranty deed containing the usual covenants," ^ and although in a case in the Circuit Court of the United States for that district, it was considered that a bond con- ditioned to make " a good and general warranty deed with the fee- simple annexed," did not require the insertion of a covenant of seisin,^ yet in a late case, the Supreme Court of that State have held that an agreement to convey " by a good and indefeasible inheritance in fee-simple," is not complied with by the tender of a deed with a general covenant of warranty merely, but that " a fair construction of the language of the bond makes it demand a deed with full covenants."* So where, in an early case in Ohio, it was said that a contract for a good and svifficient deed is a contract " to convey the fee-simple with covenant of warranty," ^ it is presumed that a general warranty was meant.^ So in Illinois, and in Min- nesota, a covenant of general warranty seems to be required,'' and it is presumed that the same rule prevails in the States more recently admitted into the Union, and where the titles are comparatively newer.^ But it is probable, that with the increase ' Dwight 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 con- vey, where there is nothing to show a contrary intention, gives a right to the usual covenants for title." ' Clark V. Redman, 1 Blackford (Ind.), 879. ' Kirkendall v. Mitchell, 3 M'Lean, 146, per M'Lean, J. ■* Linn v. Barkey, 7 Indiana, 70. ' Tremain v. Liming, Wright, 644. ^ So it is presumed that general covenants are intended by the expression in a late case in Vermont, " The several covenants of seisin and against incum- brances are covenants which, under the form of conveyances in this State, are usually inserted in deeds of that character, and when an agreement is made for a warranty deed, a deed with these covenants would be intended ; " Bowen ij. Thrall, 28 Vermont, 385, and the covenant of warranty in the deed in question was a general or absolute one. ' Clark V. Lyons, 25 Illinois, 105 ; Johnston v. Piper, 4 Minnesota, 195. ' See Johnston v. Piper, supra; Taul v. Bradford, 20 Texas, 264; Rhode v. Alley, 27 id. 445. In such States it is presumed that the remark of Spencer, J., in the old case of Pitcher v. Livingston, 4 Johns. 14, supra, p. 22, might apply, that it was rare for the purchaser to investigate the seller's title, and that he THE PURCHASER HAS A EIGHT TO EXPECT. 39 of care in the examination of the title, the purchaser's right to unlimited covenants will be narrowed. And it is scarcely necessary to say, that whatever may be the local usage on this point, it will be always subject to be controlled by the express terms of the articles of sale. So, too, in some States, the covenant of warranty (whether general or limited) is usually the only one inserted in the deed.^ In others, however, it is customary to insert most or all of the five covenants for title. ^ Upon the whole, it woiild seem that the question " what are the usual covenants," is, or may often be, one of fact rather than of law. In England, such a question as to the usual and proper covenants in a lease has been, in a court of law, considered to be one for the jury upon the evidence ; ^ while in equity, it has been referred to a master ; * and in a recent case in New Jersey, it was suggested that the same practice might be adopted as to what were the usual covenants in a deed in a given locality.^ mostly relied upon his covenants. In Gilchrist v. Buie, 1 Dev. & Batt. Eq. (N. C.) 357, the court, in adverting to the English rule of limiting the covenants to the act of the vendor, said, " That position has never yet been laid down by us or our predecessors, and would require very deliberate consideration before the adoption or repudiation of it.'' ' As an illustration of this, it was said by Lumpkin, J., in Leary v. Durham, 4 Georgia, 601 : " I can say with truth, after a practice of more than a quarter of a century, that I never saw a deed containing, in so many words, definite and precise covenants of seisin, right to convey, for quiet enjoyment, against in- cumbrances, and for further assurance. These are all designed to be included in the general covenant of warranty of title against all claims.'' See also Stew- art c. West, 2 Harris (Pa.), 336; Caldwell v. Kirkpatrick, 6 Alabama, 61; and infra, Ch. VIII. ' See 4 Kent's Com. 471 ; 3 Washburn on Real Property, 648 ; McKleroy v. Tulane, 34 Alabama, 83 ; Murphy v. Lockwood, 21 Illinois, 618. ^ Bennett v. Womack, 3 Car. & Payne, 96, per Lord Tenterden; s. o., on motion for a new trial, 7 Barn. & Cress. 627. ' Henderson u. Hay, 3 Bro. Ch. 632. ' Wilson V. Wood, 2 C. E. Green, 216. Where there is no difficulty as to the practice, of course the court must decide from the contract itself. Thus where in Onslow v. Londesborough, 10 Hare, 67, the contract provided for " one or more proper and sufficient covenant or covenants " for the production of title papers, the court said, " The question is, what is the meaning to be attached to the word ' sufficient ' ? Was it meant to import that the vendors (to whom the deeds were to be delivered and who were to covenant for their production) were to have a covenant or covenants which at all times and under all circumstances, should secure to them the production of the deeds, or merely that the vendors 40 THE "usual covenants," and what covenants Owing to the looseness with which contracts of sale are at times expressed, questions have even arisen whether the contract was not substantially complied with by the tender of a deed containing covenants for the title, although the title itself might be defective. Thus, it was held in New York, in Gazley v. Price,^ that an agree- ment " to give a good and sufficient deed for the premises," related merely to the sufficiency of the conveyance, to pass whatever estate the vendor had ; and in a subsequent case,^ a similar construction was given to a contract to give " a good warranty deed of convey- ance of the land." ** But these decisions in New York are opposed both to prior and to subsequent authorities in the same State, based upon articles substantially similar, and cannot be considered as law at the pres- ent day, either there or elsewhere. Thus, in a previous case,* it had been held that an agreement to execute a good and sufficient deed for the premises, did not mean merely a conveyance good in point of form, — that would be a conveyance without substance, — but it meant an operative conveyance, one that carried with it a good and sufficient title to the land conveyed ;S and in a subsequent case,^ Chancellor Walworth was clearly of opinion that " an agree- ment to convey land by a good and sufficient warranty deed, was not complied with by the mere giving of a warranty deed, where should have such a covenant or covenants as according to the ordinary practice and the views of this court would be deemed to be sufficient? " and it was held that the word " sufBcient " was qualified by the word " proper." ' 16 Johnson, 2G7, per Spencer, J. ^ Parker u. Parmelee, 20 Johnson, 132. ' So, apparently, in Clark u. Lyons, 25 Illinois, 105, and so in a case in Mas- sachusetts, 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 free from incumbrance. To guard against any defect of title, a covenant of warranty was provided for, which shows clearly that the agreement was so under- stood by the parties ; " Tinney v. Ashley, 15 Pickering, 652, approving Gazley V. Price. The same court seemed disposed to take the same view of the law in an early case, Aiken v. Sanford, 5 Mass. 499 ; though it was said in that case, as in Swan v. Drury, 22 Pickering, 489, and Tharin v. Pickling, 2 Richardson's Law (S. C), 364, " that if the money was to be paid on receiving the deed, it might be a reasonable construction that a good and sufficient title should be con- veyed." See also Mead v. Fox, 6 Gushing (Mass.), 202. ■* Clute V. Robinson, 2 Johns. 596, per Kent, C. J. ^ So in Jones v. Gardner, 10 Johns. 266, and Judson v. Wass, 11 Johns. 528. " Everson v. Kirtland, 4 Paige (N. Y.), 638. THE PURCHASER HAS A EIGHT TO EXPECT. 41 the grantor had no title to the land, or when his title was im- perfect ; it must be a deed good and sufficient, botli in form and substance, to convey a valid title to the land wliich the covenantor has agreed should be conveyed." ^ These principles are sustained by a great weight of authority ; ^ and in a late case in New York all the authorities were considered, and Gazley v. Price directly ' So, in Carpenter v. Bailey, 17 Wendell (N. Y.), 244; Traver v. Halstead, 23 id. 66 ; see Winne v. Reynolds, 6 Paige (N. T.), 411. ^ Dearth v. Williamson, 2 Serg. & Rawle (Pa.), 498; Romig v. Romig, 2 Rawle (Pa.), 249; Eby v. Eby, 5 Barr (Pa.), 466 (see Moore v. Harrisburg Bank, 8 Watts (Pa.), 149) ; Colwell v. Hamilton, 10 id. 415 ; Wilson v. Getty, 7 P. F. Smith (Pa.), 270; Porter v. Noyes, 2 Greenleaf (Me.), 22; Brown v. Gammon, 14 Maine, 276; Hill u. Hobart, 16 id. 164; Stow v. Stevens, 7 Ver- mont, 27 ; Lawrence v. Dole, 11 id. 549 ; Joslyn v. Taylor, 33 id. 470 ; Little V, Paddleford, 13 N. Hamp. 1G7 (settling the doubt suggested in Beach v. Steele, 12 id. 89) ; Mitchell u. Hazen, 4 Conn. 495 ; Dodd v. Seymour, 21 id. 480 ; Swan u. Drury, 22 Pickering (Mass.), 488; Mead v. Fox, 6 Gushing (Mass.), 202; Brown v. Starke, 3 Dana (Ky.), 318; Andrews v. Word, 17 B. Monroe, (Ky.) 520; Tarwater v. Davis, 2 English (Ark.), 153; Dwight v. Cutler, 3 Michigan, 575; Clark u. Redman, 1 Blackford (Ind.), 379; Goddin v. Vaughn, 14 Grattan (Va.), 117; Pugh v. Chesseldine, 11 Ohio, 109; Hunter v. O'Neil, 12 Alabama, 39; Greenwood v. Ligon, ]0 Smedes & Marsh. (Miss.) 615; Feemster v. May, 13 id. 275 ; Mobley v. Keys, id. 677 ; Gilchrist v. Buie, 1 Dev. & Bat. Eq. (N. C.) 347 ; Lee v. Foard, 1 Jones' Eq. (N. C.) 127 ; Watts v. Waddle, 1 M'Lean, 200; Brown v. Cannon, 5 Gilman (HI.), 174; Morgan w. Smith, 11 Illinois, 199; Cunningham v. Sharp, 11 Humphreys (Tenn.), 120; Luckett V. Williamson, 31 Missouri, 54; s. c. 37 id. 395; Shreck u. Pierce, 3 Clarke (Iowa), 360; Davis v. Henderson, 17 Wisconsin, 106, citing the text; Vardeman v. Lawson, 17 Texas, 16 ; Thayer v. White, 3 California, 229. In New Jersey, the early case of Johnson v. Smock, Coxe, 106, was decided in accordance with the earlier case in New York of Clute v. Robinson, but in Bar- row V. Bispham, 6 Halsted, 119, the court approved of the decisions in Gazley I). Price and Parker v. Parmelee. When the question was again presented in the recent case of Tindall v. Conover, 1 Spencer (N. J.) , 214, Nevius, J., after saying that the court took a rational and correct view of the question in Barrow v. Bisp- ham, by holding that unless there was something else in the instrument or attendant circumstances to show that the parties by the deed meant title, the court had no right to say the former word meant the latter, added, " If this were entirely an open question in this court, I confess I should strongly incline to adopt the con- struction given by Judge Kent and the Court of Errors in Clute v. Robinson. ... I undertake to say, that in a written contract for the sale and purchase of lands, the expression, ' a good and sufficient warranty deed,' will be understood by more than nine-tenths of mankind, not excepting the legal profession, to mean a good and sufficient title ; " and when this case came again before the court in Tindall v. Conover, 1 Zabriskie (N. J.), 664, the question was decided in ac- 42 THE " USUAL COVENANTS," AND WHAT COVENANTS overruled,! and the latest autliorities in that State have adhered to this course of decision.^ It is possible that some cases which seem to be not in harmony with others, may be reconciled by reason of the express and peculiar words of the contract.^ There is, indeed, a guiding principle to the construction of all these cases. It is familiar tl;at the general principles of the con- tract of sale, both in this country and in England, recognize and enforce, while it is still executory, the right of the purchaser to a title clear of defects and incumbrances. Tliis right is one not growing out of the agreement of the parties, but which is given by the law,* and it naturally follows, that a court of equity will not decree the specific performance of a contract, where the title is bad, or even, as it has been said in modern times, where it is doubtful.^ Hence, when an incumbrance exists, which it was not cordance with the weight of authority just referred to. See also New Bavbadoes Toll Bridge Co. v. Vreeland, 3 Green's Ch. (N. J.) 157. ' Pomeroy v. Drury, 14 Barbour's S. C. (N. Y.) 424, the court saying, " I think it may be safely said that Gazley v. Price and Parker v. Parmelee are no longer authorities for holding that a covenant to convey lands by warranty deed on a sale, refers only to the form and sufficiency of the deed and not to the title conveyed." The decisions in _question had also been virtually overruled in Fletcher v. Button, 4 Comstock, 400. = Hill V. Ressegieu, 17 Barbour's S. C. (N. Y.), 164; Atkins v. Bahrett, 19 id. 639 ; Burwell v. Jackson, 5 Selden, 636 ; Penfield v. Clark, 62 Barbour, 584. ^ Thus, an agreement to convey all the vendor's interest in a certiiin 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 ; and see the distinction noticed in Joslyn v. Taylor, 33 Vermont, 475. ■* Souter V. Drake, 5 Barn. & Adolph. 999, per Denman, C. J. ; Doe v. Stanion, 1 Mees. & Welsh. 701; Burwell v. Jackson, 5 Selden (N. Y.), 536; Shreck u. Pierce, 3 Clarke (Iowa), 360; Sugden on Vendors, 281. " The rule in equity as to not compelling a purchaser to take "a doubtful title," was said in Marlow v. Smith, 2 Peere Wms. 201, to be as old as Sir Joseph Jekyl's time, and in Sloper v. Fish, 2 Vesey & Beames, 149, it was said to have been repeatedly acted on by Lord Hardwicke. Shapland v. Smith, 1 Brown's Ch. R. 76, is, however, generally cited as the leading case, although there was there but an expression of Lord Thurlow, that " if the title was only doubtful, he would not oblige the purchaser to take it." See the remarks on this case by Chief Baron Eyre, in Gale v. Gale, 2 Coxe, 145 ; and Cooper v. Denne, 4 Brown's Ch. R. 88 ; s. o. 1 Vesey, Jr., 565 ; Vancouver v. Bliss, 11 Vesey, 466 ; Stapylton v. Scott, 16 Vesey, 274; Biscoe v. Perkins, 1 Vesey & Beames, 493; Sloper V. Fish, 2 id. 149; Dalzell v. Crawford, 1 Parson's Equity Cases (Pa.), 45. A valuable note on this subject by Mr. Hovenden, will be found appended to the case of Cooper v. Denne, 1 Vesey, Jr., 667 ; and see the notes to Seton v. Slade, 3 Lead. Cas. in Eq. 49. THE PURCHASER HAS A RIGHT TO EXPECT. 43 agreed upon should enter into and form part of the consideration the vendor must discharge it before he can call for a completion of the sale.i The law then, recognizing, primd facie, a necessary implication of a good title in every contract for the sale of real estate, it follows that an agreement by which such a settled rule is to be waived, should be very unequivocally expressed, and as the law further recognizes the purchaser's rights to covenants for tlie title, it is difficult to perceive how an agreement to convey " by a sufficient warranty deed" (or words of similar import), can weaken the agreement which is implied from the mere relation of vendor and purchaser.^ The second class of vendors is that of fiduciary vendors, such as trustees, executors (whether selling in exercise of a power, or under authority of a decree), mortgagees, assignees of bankrupts, insolvents, and the like. As to "the usual covenants" to be given by them, there being an obvious difference between this class of vendors and those who sell in their own right, the practice is, perhaps, equally well settled on both sides of the Atlantic, and the rule may be said to be a gen- eral one, that from fiduciary grantors having either no interest in the subject of the sale or merely a naked legal title, the grantee is entitled to no covenants but that tlie grantor has done no act to incumber the estate, which is generally called " the usual trustee covenant ; " ^ it being evident that few persons could be found to act in a fiduciary or representative capacity if they were compellable to enter into covenants of greater scope ; ^ nor can any covenants ' Sugden on Vendors (13th ed.), 440. ^ The remarks in the text were approved in Vardeman v. Lawson, 17 Texas, 16. ' Infra, p. 44. ' The rule with respect to trustees and executors may be found in Staines v. Morris, 1 Ves. & Beames, 10; Worley v. Frampton, 5 Hare, 660; Dwinel v. Veazie, 36 Maine, 509 ; Sumner v. Williams, 8 Mass. 201 ; Hodges v. Saun- ders, 17 Pickering, 476; Shontz v. Brown, 8 Casey (Pa.), 134; Grantland ». Wight, 5 Munford (Va.), 295; Allen v. Winstow, 1 Randolph (Va.), 71; Goddin V. Vaughn, 14 Grattan (Va.), 102; Ennis v. Leach, 1 Iredell's Eq. (N. C.) 416 ; Barnard v. Duncan, 38 Missouri, 181, citing the text; Bracken- ridge V. Dawson, 7 Indiana, 387 ; Worthy v. Johnson, 8 Georgia, 236 ; Redwine V. Brown, 10 id. 311; Aven v. Beckom, 11 id. 1; Chastain v. Staley, 23 id. 26; and -with regard to assignees, in Wilkins v. Fry, 1 Merivale, 244; White v. 44 THE " USUAL COVENANTS," AND WHAT COVENANTS for title be implied against them from any words of grant or leasing. 1 The usual trustee covenant is generally expressed in the follow- ing words : " Tliat he the said (trustee) hath not done omitted or knowingly suffered ^ or been party or privy to any thing where- by the premises hereinbefore expressed to be hereby granted or any of them or any part thereof affected are is or may be im- peached affected or incumbered in title estate or otherwise how- soever." 8 Foljambe, 11 Ves. 345, and see the cases cited infra, and where, in Att'y- Gen. V. Morgan, 2 Russell, 306, the court cancelled a lease as having been improperly granted by trustees of a charity, it refused, on the application of the lessee, to suffer the covenants of the trustees to remain. It is presumed, however, that where the vendor had an interest, as well as a power, he would always be obliged to covenant personally to the extent of that interest ; Barton's Conveyancing, 73 ; Hare v. Burges, 4 Kay & Johns. 57. It might be thought reasonable that fiduciary vendors should covenant for further assurance, but the practice has been otherwise. Barton's Conveyancing, 70, and it has been recently settled that this cannot be exacted of them ; Worley «. Frampton, 5 Hare, 560. It has, however, been held that if trustees under a will, come into equity to compel specific performance by the vendee of a contract made with their testator as vendor, they will be compelled to covenant for the title in the same manner as he was to have done ; Page v. Broom, 3 Beavan, 36. So, too, it has been held that the executors of one who had agreed to take a lease may, if they admit assets, be compelled to enter into a lessee's covenants so qualified as to restrict their liability to that which they would have incurred had the lease with corresponding covenants been executed by their testator. Philips V. Everard, 5 Simons, 102 ; Stephens v. Hotham, 1 Kay & Johns. 571. " These decisions,'' says Mr. Dart, " are, perhaps, difficult to be reconciled with that in Worley v. Frampton, and seem to consist better with the general principle of equity, that persons who agree to stand in the place of another, represent his liabilities as well as his rights. They also suggest whether the personal rep- resentatives of a deceased vendor or purchaser might not be required to join in the conveyance, and, to the extent of the assets, to enter into special covenants which the deceased had agreed to enter into ; " Dart on Vendors (4th ed.), 505. ' Dow J). Lewis, 4 Gray (Mass.), 473; Webster v. Conley, 46 Illinois, 14. In Knipe v. Palmer, 2 Wilson, 130, it seems to have been thought that where the committee of a lunatic, having no power either in that case or at common law, to lease the lands of the lunatic, nevertheless did so, he would be liable on the covenant implied by the word demise, but this comes within another rule which is considered, infra. ^ The benefit of the word " suffered " is illustrated by the case of Rowley ». Bent, Law Rep. 3 Eq. 761. ' 2 Dav. Con. 49, where the author adds, " or whereby he is in any wise hindered from granting the same or any part thereof in manner aforesaid ; " but on this side of the Atlantic these words are not usually inserted. The importance THE PURCHASER HAS A RIGHT TO EXPECT. 45 But although farther covenants cannot be demanded from a fidu- ciary vendor, yet it is the practice in England for the purchaser to insist on covenants from the parties beneficially interested in the purchase-money, at least in the case of cestuis que trust?- The practice of the profession, however, as to this point, was not for some time enforced or even recognized by the Court of Chancery,^ of the phrase "being party or privy to," is shown by Hobson v. Middleton, 6 Barn. & Cress. 295, where it was held that the fact of the covenantor having assented to an act which he could not prevent, was not a breach of a covenant that he had not " permitted or suffered any act, matter or thing," &c. ' And such was distinctly required in the recent case in Illinois of Crabtree V. Levings, 63 Illinois, 626. " It always has been, and still is the practice of the profession," says .Lord St. Leonards, " to make all the cestuis que trust whose shares of the purchase-money are in any wise considerable, join in covenants for the title, according to their respective interest." " A bankrupt," he continues, " is always made a party to the conveyance of his estate, to meet the difficulty which the ■ purchaser might otherwise be put to in maintaining and proving the title, and the bankrupt is generally made to enter into covenants for title, and in the same manner as he would have done had he sold the estate while solvent." Sugden on Vendors (13th ed.), 464. It seems, however, that the bankrupt can- not be compelled to do this, and his concurrence is rather matter of favor than of right; Ex parte Crowder, 2 Rose, 327 ; Waugh v. Land, Cooper, 182; Sudg. Concise View, 433 ; and it is apprehended that this would equally apply to conveyances made by assignees for the benefit of creditors, under insolvent laws. "In sales by trustees," says Mr. Davidson, " under a will for general purposes, or by order of court, the purchaser is not entitled to any covenant for title but that against incumbrances, except (in the case of a will) when the purposes to which the purchase-money is primarily applicable have since been satisfied, so that the substantial owners are, in fact, ascertainable ; in practice, however, it is usual in any case to insert covenants by the parties who are beneficially entitled in any considerable amount to the residue of the purchase-money ; 2 Dav. Con. (1867) 203. '^ The practice was condemned by Lord Loughborough in Wakeman v. Duchess of Rutland, 3 Vesey, 233, 604, affirmed on appeal, 8 Brown's Par. Cas. 145. The decision was, however, against the opinion of the most experienced convey- ancers of that period, and is, says Lord St. Leonards, " by no means an authority that cestuis que trust of money to be produced by the sale of estates devised to trustees to sell, cannot in any instance be required to covenant for the title. Where the money to arise by sale of the estate is absolutely given to two or more persons, they are substantially owners of the estate, and must accordingly cove- nant for the title. So even where the money is in the first place to be applied in payment of debts, yet if they are all paid previously to the sale, the cestuis que trust must, it is conceived, covenant for the title." It may, moreover, be ob- served that Wakeman «. The Duchess of Rutland, was, to some extent, against the views expressed by Lord Hardwicke in Loyd ». Griffith, 3 Atkyns, 264, which case is, however, criticised by Mr. Piatt, who says it appears to have been de- cided " rather with reference to particular circumstances than from any general 46 THE " USUAL COVENANTS," AND WHAT COVENANTS and it has not been until recently that it has at all received judicial approbation.^ It would seem that the correct test of the application of such a rule would be the extent of the purchaser's liability to see to the application of the purchase-money.^ And very lately on a principle ; " Piatt on Covenants, 392. Mr. Dart considers that the above prop- osition of Sugden " is too broadly stated. Suppose that a testator devises an estate to trustees in trust to sell, and with power to give receipts, and to divide the proceeds among his children, all of whom are sui juris. Here the benefi- ciaries, if all wish so to do, may elect that there shall be no sale, but to take the land as real estate. Any of the beneficiaries may, however, require the trustees to proceed to a sale, even against the wishes of their co-beneficiaries. Assuming that those who agree to a sale and join in the contract are bound to concur in the conveyance, and to covenant for title to the extent of their interests, it does not occur to the writer that there is any mode by which the dissentients can be com- pelled so to concur and covenant. Nor does he conceive that, if they refuse so to do, their refusal would entitle the purchaser to rescind the contract. If so, the inability of trustees for sale to procure the concurrence of all the beneficiaries amounts, in reality, to a defect in title ; " Dart on Vendors (4th ed.), 501. ' In the case of the London Bridge Acts, 13 Simons, 176, lands were devised to A for life, remainder to B for life, remainder to his sons successively in tail male. A and B during the infancy of B's eldest son obtained an act of Parlia- ment vesting the estate in trustees in trust to sell, and the Vice-Chancellor " ap- 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 tenants for life in this case stood in the same situation as if there had been a power to sell the estates with their consent, in which case it would be a matter of course for them to enter into the covenants." See also Page V. Broom, 3 Beavan, 35. In the late case in Missouri of Barnard v. Dun- can, 38 Mo. 182, this sentence was quoted, and the court added, " The matter would seem to depend upon the jurisdiction of a court of equity in a proper case, as where one of the parties should come into court to enforce specific performance against the other." '^ Sugden says, "Where an estate is sold by trustees under a will, and the money is to be applied in payment of debts, &c., and the residue is given over, a purchaser is not entitled to any covenants for the title, because no line can well be drawn as to the quantum which would make a person liable to covenant ; and therefore, if this rule were not settled, a person who only took £5 might as well be required to covenant, as one who took a large sum. The same rule applies ex necessitate where an estate is sold for similar purposes under an order of a court of equity. If a difierent rule prevailed, the consequence would be, that the estate could never be sold by decree, till the account was taken of all the debts ; because, before that account was taken, it could not appear who were to join in the conveyance, what was the number, and in what proportions they were beneficially entitled ; but it is the constant practice to sell the estate in the first instance ; of course the title can be made only by the trustees for sale, without calling on the parties who are presumptively beneficially interested." There would seem to be some reason why, in America, cestuis que trust should not be THE PURCHASER HAS A RIGHT TO EXPECT. 47 sale made under a decree, of real estate vested in trustees, whose receipt was to be a good discharge, in order to divide the proceeds among the beneficiaries, it was distinctly held that the latter, not- withstanding the practice of the profession, were not bound to covenant for the title. ^ But still more recently, it seems to have been thought that this must be confined to the case of a sale under a decree.^ It may be doubted, however, if this be the true test.^ The question of the purchaser's right to covenants for the title from an agent, acting under a power of attorney from his principal, compellabfe to enter into covenants for title, which is, that the English doctrine, ■which in many cases obliges the purchaser to see to the application of the purchase-money, is less regarded here (see Mr. Wallace's note to the case of Elliot V. Merryman, 1 Leading Cases in Equity), and the purchaser is there- fore in less need of these covenants as a protection against the future claims of the parties beneficially interested ; though as regards claims under an adverse paramount title, it is obvious that this reason cannot apply. The passage in the text was cited in the late case in New York of Hill v. Ressegieu, 17 Barbour's S. C. 167, where it is said, " That liability (to see to the application of the purchase-money) does not now extend to payments to the trustees made in good faith ; 1 Kev. Stats. 730, 10 Paige, 282," and it was held that where a vendor having covenanted to convey land free of all incumbrance died, leaving a widow and three heirs, one of whom was an infant, the infant was decreed to convey, but without covenants, and the adult heirs were decreed to convey with covenants against their own acts. The same point as to covenants by infant heirs was decided in Hyatt v. Seeley, 1 Kernan (N. T.), 56. ' Cottrell V. Cottrell, Law Rep. 2 Eq. 330. " The purchaser has established," said Stuart, V. C, " that according to the practice of conveyancers, he would be entitled to covenants for title from the beneficiaries. But it is equally clear that it is an oppressive practice, and has not been adopted by this court as to sales made under its decree. The beneficiaries under a will are not contracting parties, but mere volunteers, and it seems an arbitrary thing to hold that a legatee is to take nothing from the bounty of the testator until he has entered into covenants for title and possibly has been put to considerable expense." ' Earl Poulett v. Hood, Law Rep. 5 Eq. 115, per Lord Romilly, M. R. In that case, however, there was a tenant for life, as In re London Bridge Acts, supra, who, " finding that a sale of the term under the decree was not so advan- tageous, chose instead of that to sell under the power. Taking that course, he must take it with all the incidents, and one of them is that the tenant for life must covenant for the title." ' And, says Mr. Dart, " These questions upon sales under the decree or by the directions of the court, are, according to the present practice, usually pre- cluded by a special condition. And even in the case of private sales, it may be doubted whether the practice of conveyancers could be altogether enforced ; " Dart on Vendors (4th ed.), 600. 48 THE " USUAL COVENANTS," AND WHAT COVENANTS has often arisen in cases where, in a suit against the latter, \ipon covenants made on his behalf by the agent, the right so to bind the principal has been denied. In an early case in New York, it was assumed that as a deed without any covenants for the title was sufficient to pass the estate to the purchaser, tlie latter had no right to demand these covenants, and hence it was said that a power of attorney to sell and convey land, expressed in the usual form, implied no power to covenant for the title ; ^ and in a subse- quent case,^ the same rule was applied to the warranty of a chattel. It has, however, be6n held in England that an authority to sell a horse carries with it an authority to warrant him sound, as the warranty is, in general, a natural incident of the contract.^ This has been approved and followed on this side of the Atlantic, and in many cases the correctness of the New York decisions 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 de- feated by the mere delegation by him of authority to consummate the contract.* Where, however, that authority is restricted in ' Nixon V. Hyserott, 5 Johnson, 58. "The attorney was authorized," said the court, " to sell and to execute conveyances and assurances in the law, of the land sold, but no authority was given to bind the principal by covenants. A conveyance or assurance is good and perfect without either warranty or personal covenants, and therefore they are not necessarily implied in an authority to con- vey ; an authority is to be strictly pursued, and an act varying in substance from it is void." And to the same effect are Ryder v. Jenny, 2 Robertson (N. Y.), 68, and Howe v. Harrington, 3 C. E. Green (N. J.), 496. ' Gibson V. Colt, 7 Johnson, 390. In Van Eps v. Schenectady, 12 id. 436, Nixon V. Hyserott was approved, and it was held that a conveyance was perfect without any covenants for the title, and this was also the decision in Fuller v. Hubbard, 6 Cowen, 22, and Willis v. Astor, 4 Edwards' Ch. 595, and these cases have been approved in Connecticut; Mead v. Johnson, 3 Conn. 592; Dodd V. Seymour, 21 id. 480. Such a conveyance is certainly sufficient to pass the estate of the grantor, but is not, it is conceived, all that the purchaser has a right to expect. " The title is one thing, the covenants are other things, intended as a support of the title; " Osborne v. McMillan, 5 Jones' Law (N. C), 109. See supra, p. 23 ; Kyle v. Kavauagh, 103 Mass. 359. ' Alexander v. Gibson, 2 Campbell, 655. See also Pickering v. Busk, 15 East, 45 ; and as to chattels generally, see Story on Sales, § 71. ■■ Hunter!). Jameson, 6 Iredell (N. C), 252; Vanada v. Hopkins, 1 J. J. Marshall (Ky.), 293; Pledges v. Kerr, 4 B. Monroe (Ky.), 528; Peters v. Farnsworth, 15 Vermont, 155 ; Ward v. Bartholomew, 6 Pickering (Mass.), 410 ; Taggert v. Stanbery, 2 McLean, C. C. 543 ; Rucker v. Lowther, 6 Leigh (Va.), 269. THE PURCHASER HAS A RIGHT TO EXPECT. 49 terms so express as to control that which the law otherwise im- plies, 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, wlien parties con- tract en autre droit, and bind themselves personally, and fail to bind their principals, they are held personally responsible ; ^ and the rule applies a fortiori to contracts under seal. This general doc- trine was applied in England in a case ^ where one having cove- nanted on behalf of another to pay the purchase-money of certain property, he was held personally liable ; the court holding that it was impossible to contend that where one covenants for another he is not to be bound for it, and the covenantee might prefer the secu- rity of the covenantor to that of his principal.^ In this country it has frequently happened that fiduciary vendors have, perhaps from inadvertence, entered into covenants for title of greater scope than the law exacts of them, and in such cases it is well settled that the covenants are personally binding upon them. Thus where, in a case in Massachusetts,* the grantors, " in their capacity as administrators," covenanted that they, administrators as aforesaid, were lawfully seised of the premises, that they were clear from all incumbrances except a certain mortgage and a right of dower, that they had, in their said capa- city, good right to sell, and that, as administrators aforesaid, they would warrant and defend the premises, it was held that the cove- nantors were personally bound to pay, out of their private estates, damages arising from an eviction of the covenantees. There could be no doubt, it was said, that the grantors did not intend that there should be any recurrence to themselves, and that they observed peculiar caution to avoid any idea of personal liability ; and fur- ther, that the nature of the transaction, the character in which the grantors contracted, and the language of the instrument, concurred • See Story on Agency, § 263, &c., and Knipe u. Palmer, 2 Wilson, 130, cited supra, p. 44. " Appleton V. Binks, 5 East, 148. ^ See, to the same effect, Burrell v. Jones, 3 Barn. & Aid. 47 ; Kennedy v. Gouveia, 3 Dowl. & By. 503 ; Norton u. Herron, 1 Car. & Payne, 648. Of course, when the principal is bound, the agent or attorney is not; Kent v. Chal- fant, 7 Minnesota, 491. ■* Sumner v. Williams, 8 Mass. 162. There had been previous cases in that State to the same eifect ; Thacher «. Dinsmore, 5 Mass. 299 ; Forster u. Fuller, 6 id. 59. 4 ,.- ■--'- - 50 THE " USUAL COVENANTS," AND WHAT COVENANTS in proving tliat 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 in- terruption of the estate supposed to be granted, though probably neither of them contemplated the happening of siich a contingency. On the occurrence of that contingency, however, the court was reduced to the alternative of pronouncing the covenants to be void and wholly ineffectual,^ or of giving them operation against the defendants in their personal and individual capacity ; and, however hard the alternative might be, in subjecting the administrators to the payment of damages contrary to their intention, still it was said that the principle was one too deeply rooted to be unsettled. It was, moreover, well remarked, that while an administrator was not required by any duty of his office or trust to enter into a per- sonal covenant for the perfection of the title or for the validity of the conveyance, beyond his own acts, yet it would be admitted that he was at liberty to do so if he chose thus to excite the confidence of purchasers and to enlarge the proceeds of the sale, and that he might be competent to engage his own credit collaterally in the conveyance. And the rule as thus stated is supported by many authorities.^ ' That a covenant for title made by an administrator will not bind the estate is well settled ; Mason v. Ham, 36 Maine, 573 ; Shontz v. Brown, 3 Casey (Pa.), 134; Osborne u. McMillan, 5 Jones' Law (N. C), 109; Worthy u. Johnson, 8 Georgia, 236 ; Mabie v. Matteson, 17 Wis. 11 ; Klopp v. Moore, 6 Kansas, 30; Lockwood u. Gilson, 12 Ohio St. R. 629; and the same is true as to the right of trustees to bind the corporation which they represent, unless expressly authorized so to, do ; Klopp v. Moore, supra. •' Duvall V. Craig, 2 Wheaton, 56 ; Stinchfield v. Little, 1 Greenleaf (Me.), 231; Cos V. Talcott, 5 Day (Conn.), 92; Mitchell v. Hazen, 4: Conn. 495; Belden v. Seymour, 8 id. 24 ; Sterling v. Peet, 14 id. 245 ; Whiting v. Dewey, 15 Pickering (Mass.), 433; Donahoe v. Emory, 9 Metcalf (Mass.), 66 ; Godley V. Taylor, 8 Devereux (N. C), 178 (and see Osborne v. McMillan, 5 Jones' Law (N. C), 109) ; Mason v. Caldwell, 5 Gilman (111.), 196 ; Mellen v. Boar- man, 13 Smedes & Marsh. (Miss.) 100 ; Klopp v. Moore, 6 Kansas, 30 ; Aven V. Beckom, 11 Georgia, 1, where the subject is elaborately considered ; Crad- dock V. Stewart, 6 Alabama, 77; Graves v. Mattingly, 6 Bush (Ky.), 361; Murphy v. Price, 48 Missouri, 247 ; Mabie v. Matteson, sujva ; Lockwood v. Wilson, supra. Thus, where an administratrix of her deceased husband conveyed his estate under order of court, and covenanted for the title, it was held that although she was not bound so to covenant, yet having done so the covenants would estop her from claiming dower in the land ; Megee v. Mellon, 23 Missis- sippi, 586. THE PURCHASEE HAS A EIGHT TO EXPECT. 51 As to the third class of vendors, namely, ministerial vendors, such as sheriffs, marshals, tax collectors, and the like, it is sufficiently apparent, from what has been already said, that no express cove- nants for the title of any kind can be demanded from them,^ nor can they be implied from any words of grant or leasing.^ It has, however, been held that where the covenantor expressly declares that his liability shall be no more than coextensive with his fiduciary capacity, he will not be personally bound, even although the covenants carry with them no protection whatever to the covenantee. Thus, in Thayer v. Wendell, 1 Gallison (U. S. C. C), 37, Story, J., held that a covenant by an executor in his " capacity of executor, and not otherwise,'' created no personal liability, and that no man acting fairly and openly in alieno jure, and not otherwise, can be made answer- able in his private capacity upon the contract. So where, in Day v. Browne, 2 Ohio, 347, the covenant was that the grantors would warrant and defend " as executors are bound by law to do, " the distinction was taken that in the cases above referred to the word executor, trustee, &c., amounted only to matter of description, but that as executors were not bound in that State to warrant at all, the words were used to qualify their responsibility. So, in Manifee v. Morrison, 1. Dana (Ky.), 208, where executors covenanted to warrant " to the extent of their assets," it was held that the covenant imposed no obligation on them individually, nor beyond the assets in their hands at the time of the eviction, and the previous case of Nicholas v. Jones, 3 A. K. Marsh. (Ky.), 385, had been to the same effect; and in such cases there will be no estoppel as to any individual right or estate which the fiduciary vendor may have ; Wright V. DeGroff, 14 Michigan, 168. The distinction between these two classes of cases may, perhaps, be that in the former, although the intention of the covenantor may impliedly appear to be that he intends his covenant not to bind himself personally, yet that unless this intention be manifested by the most express and unequivocal language, a false confidence of security may be excited on the part of the purchaser, and the rule applies that the words of the instrument are to be taken most strongly against the party using them ; but when the covenantor expressly limits this liability, no such confidence is or ought to be raised, and the covenantee by acceptance of such a covenant cannot draw from it a greater protection than its express terms permit. A covenant by a part owner, to the extent of his share, obviously binds him no further than to that extent; Coster v. Manufacturing Co., 1 Green's Ch. (N. J.) 467 ; and it is done every day by tenants in common; see supra, p. 31. 1 The Monte Allegre, 9 Wheaton, 616 ; Friedly v. Scheetz, 9 Serg. & Eawle (Pa.), 156; Loudon u. Robertson, 5 Blackf. (Ind.) 276; Rocksell u. Allen, 3 McLean (U. S. C. C), 357; Rogers v. Horn, 6 Richardson (S. C), 361. In Wilson v. Cochran, 14 N. Hamp. 897, where a tax collector had, in pursuance of a statutory form for deeds to be created by these officers, entered into per- sonal covenants for the title, it was held that they were not binding on him, as he was obliged to follow the statutory precedent. ^ Dow V. Lewis, 4 Gray (Mass.), 473 ; supra, p. 44. 52 THE " USUAL COVENANTS," ETC. Nor, of course, can any covenants be required from the sovereign power, wliether represented by the Crown ^ or the Commonwealth.^ ' Dart on Vendors (4th ed.), 507. ' ^ State V. Crutclifield, 3 Head (Tenn.), 113. It has, however, been held that where the Commonwealth has conveyed to an alien, with covenants of war- ranty, she will be estopped to set up the alienage as ground of escheat ; Com- monwealth V. Pejebscut, 10 Mass. 155 ; Commonwealth v. Andre, 8 Pick. (Mass.), 224 ; The People v. Society, 2 Paine's C. C. 557 ; infra, Ch. XI. THE COVENANT FOR SEISIN. 53 CHAPTER III. THE COVENANT FOR SEISIN.^ Title, from an early day, was defined to be the means whereby the owner of land has the just possession of his property ; ^ and in order that this should be complete, there was required juris et seisince conjunctio? This seisin, which was essentially a technical term, denoted the completion of that investiture by which the vassal was admitted to the fief; and it is familiar that, without it, no freehold could be constituted or pass.* The delivery of posses- ^ For the form of the covenant, see supra, p. 24, n., 28. 2 Co. Litt. 345 6 ; 2 Black. Com. 195. ^ It was also called jus duplicatum, or droit droit; Co. Litt. 266. * Butler's note to Co. Litt. 366 6; Taylor v. Horde, 1 Burrow, 107. To this there was a single exception, — the case of a fine. " When property first became the subject of alienation, it was found necessary to adopt some authentic mode of transfer, which might secure the possession and evince the title of the pur- chaser. By the ancient common law a charter of feoffment was in general the only written instrument whereby lands were transferred or conveyed. But although this assurance derived great authenticity from the number of witnesses by whom it was usually attested, and from the solemn and public manner in which livery of seisin was formerly given, yet still it may be supposed that inconveniences would frequently arise, either from the loss of the charter itself, or from the difficulty of proving it after a lapse of years. These circumstances probably induced men to look out for some other species of assurance which should be more solemn, more lasting, and more easy to be proved than a charter of feoffment. Experience must soon have discovered that no title could be so secure and notorious as that which had been questioned by an adverse party and ratified by the determination of a court of justice ; and the ingenuity of mankind soon found out the method of drawing the same advantages from a fictitious pro- cess. To effect this purpose, the following plan was adopted: A suit was com- menced concerning the lands intended to be conveyed, and when the writ was sued out and the parties appeared in court, a composition of the suit was entered into with the consent of the judges, whereby the lands in question were acknowl- edged to be the right of one of the contending parties. This agreement, being reduced into writing, was enrolled among the records of the court, where it was preserved by the public officer, by which means it was not so liable to be lost or 54 THE COVENANT FOR SEISIN. sion — the livery of seisin — was the essential part of a feudal transfer, and the deed which accompanied it the mere authentica- tion of the transaction. In this sense, seisin was synonymous with possession, and was usually termed seisin in deed, or actual seisin. There was also, however, a virtual or constructive seisin, such as that of the possession of a tenant for years, whicli was deemed to be also the possession of the owner of the reversion. Then, too, there was a seisin in law, as where, after a descent, the heir, who had the right of possession, though he had not actually entered, yet was deemed, for some purposes at least, seised of the estate of his ancestor.^ It has been already said that warranty, which was the covenant for title of those days, partook in its origin of the simplicity of the early common law,^ and it was intended to assure tlie title, in its defaced as a charter of feoffment, and would at all times prove itself; and being substituted in place of the sentence which would have been given in case the suit had not been compounded, it was to be held of equal force with the judgment of a court of justice ; " 1 Cruise on Fines and Recoveries, 1. There are existing records of fines levied in the reign of Richard I., and traces of fines levied in the preceding reign ; see the Book of Fines printed by the Record Commissioners in 1835. ' At this lapse of time, few subjects require to be handled with greater deli- cacy than those of seisin and disseisin, — the latter, which bears the reputation of being " one of the most obscure and difficult in the law" (1 Cruise on Real Property, 14), having caused much difference of opinion as to its essence and operation, between the most distinguished authorities. It is sufficient here to notice that in the well-known case of Taylor v. Horde, 1 Burrow, 60, the prin- ciples of the common law were ably shown by Mr. Knovvler to be, that a wrong- ful possession by a stranger, and feoffment by him, passed to the feotfee an actual immediate estate of freehold with all its rights and incidents, defeasible only by the lawful owner, whose right of entry, however, was taken away by a descent cast on the heir of the feoffee. Lord Mansfield, however, held that mere acts of intrusion or trespass, followed by a feolFment, could not thus turn the lawful owner into a disseisee, unless he should elect to consider himself disseised; and this doctrine has been since generally adopted in the English cases (Jerritt v. Weare, 3 Price, 575 ; Goodright v. Forester, 1 Taunt. 578 ; Doe v. Lynes, 3 Barn. & Cress. 888), notwithstanding the earnest stand made against it bv Mr. Preston and Mr. Butler; Preston on Abstracts, 279; Butler's note to Co. Litt. 830 6. In America, the cases which are collected in the Digests under the head of " Seisin and Disseisin," have reference almost exclusively to what constitutes an adverse possession under the limitation acts, as to which the cases are classi- fied in Mr. Wallace's note to Taylor v. Horde in Smith's Leading Cases. ' See supra, p. 8. THE COVENANT FOR SEISIN. 55 strict definition ; that is, the union of the right and the possession, — the jus and the seisina^ But with the passage of the statute of Uses came those convey- ances which, taking effect under it, rendered the livery of seisin no longer necessary, and in the course of the change from the ancient to the modern system of law which was going on during the cen- tury and a half which elapsed between the end of Henry the Eighth's reign and the restoration of Charles, the word seisin seems gradually to have been looked upon less as one of the elements of title than as synonymous with title itself, and the covenant that one was seised in fee was in the reports of that time regarded as a covenant for the title ^ in contradistinction to the covenant for quiet enjoyment, which was called a covenant to assure the. possession;^ and such a construction, though denied, as will be seen, in parts of this country, has been preserved in England to the present day.* In this sense, therefore, the covenant for seisin is synonymous with the covenant of good right to convey.^ But, as has been before shown, the form in which the covenants for title are expressed is one of the marked distinctions between conveyances on the different sides of the Atlantic, and the cove- nant for seisin is, in most of the United States, briefly expressed by the words, " that the said (grantor) is lawfully seised," or " has a good and sufficient seisin," or words to that effect.^ And at the time when these covenants were originally introduced, owing to the sense in which the word seisin was used, as synonymous with title, a covenant expressed in this short form had, in England, the same practical import as the longer form which succeeded it, and a covenant that one was seised, or lawfully seised, meant ' See supra, p. 15. ^ Cooke u. Fowns, 1 Keble, 95. ^ Gregory v. Mayo, 3 Keble, 745, 765. " Howell V. Richards, 11 East, 641 ; Young v. Raincock, 7 Com. Bench, 310. ^ Browning v. Wright, 2 Bos. & Pull. 13. They are, however, far from being synonymous covenants in all respects ; as although a covenant for seisin, as ex- pressed above, implies a right to convey (ISTervin v. Munns, 3 Levinz, 46), yet the converse of this will by no means hold, the instances being numerous, in which one has a good right to convey, though not seised of the estate which would pass by the conveyance ; see infra, Ch. IV. " Supra, p. 28. 56 THE COVENANT FOE SEISIN. seised of an indefeasible estate ; in other words, it was a covenant for the title, in its technical sense. ^ But for more than half a century, a different and peculiar con- struction has been given to this covenant in a few of the United States, in which it is considered that a covenant that one is " law- fully seised," or has " a good and sufficient seisin," does not require that the grantor should have an indefeasible estate, and is not broken if an actual seisin, no matter how tortious, provided it be under color of title, be given to the purchaser.^ This doctrine seems to have been first announced in Marston v. Hobbs, decided in Massachusetts in 1817, where it was said, " The defendant, to maintain the issues on his part, was obliged to prove his seisin when the deed was executed. But it was not necessary to show a seisin under an indefeasible title. A seisin in fact was sufficient, whether he gained it by his own disseisin, or whether he was in under a disseisor. If at tlie time he executed the deed he had the exclusive possession of the premises, claiming the same in fee-simple by a title adverse to the owner, he was seised in fee and had a right to convey. If the defendant's grantor had no authority to convey the premises to the defendant, yet if, in fact, he entered under color, though not by virtue of that deed, and acquired a seisin by disseisin, by ousting the former owner, he has not broken these covenants." ^ In the ensuing year, the same court applied this doctrine under a covenant apparently similarly worded, by deciding that a cove- nant for seisin was not broken where the grantor had, some years before the execution of the deed, entered upon the lands, claiming to hold them by a grant from the Commonwealth, which possession he had transmitted to the plaintiff his grantee ; * and the construc- ' Cooke II. Fowns, 1 Keble, 95 ; Gray v. Briscoe, Noy, 142. The student will observe that the word " not," in the report of Gray v. Briscoe, is an evident mistake. ^ The possession of a mere trespasser, avowed to be such, will not of course be sufficient. Thus in Wheeler v. Hatch, 12 Maine, 389, where the grantor was, as to one lot, in actual possession, though without claiming title, it was held by the Supreme Court of Maine (who have adopted the doctrine referred to in the text) that the covenant was broken. ^ 2 Mass. 439, Parsons, C. J; there appears to have been no argument on this point, which was decided almost incidentally. * Bearce v. Jackson, 4 Mass. 408. "As to the other exception,'' said Par- sons, C. J., " it is very clear that the defendant's intestate, being in possession, THE COVENANT FOR SEISIN. 67 tion thus given has been adhered to in Massachusetts, recognized and adopted in Maine, and in a qualified sense in Ohio,^ and ap- claiming a fee-simple in the land, was able to convey. So the covenant of seisin ■was not broken.'' ' Chapel V. Bull, 17 Mass. 219 ; Wait v. Maxwell, 5 Pick. (Mass.) 217 ; Cor- nell V. Jackson, 3 Cushing (Mass.), 609; Raymond v. Raymond, 10 id. 134; Follett V. Grant, 5 Allen (Mass.), 175 ; Kirkendall v. Mitchell, 3 McLean (U. S. C. C), 145 (dictum by McLean, J.) ; Cushman v. Blanchard, 2 Greenleaf (Me.), 268, 269 ; Griffin v. Fairbrother, 1 Fairf. (Me.) 59 ; Wheeler v. Hatch, 3 id. 389 ; Boothby v. Plathaway, 20 Maine, 255 ; Baxter v. Bradbury, id. 260 ; Wilson V. Widenham, 51 id. 567 ; Backus v. McCoy, 3 Ohio, 211. " The cove- nants so usual in our deeds," said the court in Raymond v. Raymond, supra, "that the grantor is 'seised of the premises, and that he has good right to sell and convey the same,' have long since had a judicial construction in this Commonwealth. These covenants do not express or imply a warranty of any absolute title ; they relate to the actual seisin of the grantor, and that he has such possession of the premises as that he may execute a deed thereof." And see Crocker on Common Forms (2d ed.), 60. The case in Ohio, of Backus v. McCoy, though differing in some respects from these cases, yet states with clearness the doctrine on which they rest. After referring to the decision in Marston v. Hobbs, Sherman, J., in delivering the opinion of the court, said: "This decision appears to us to be founded on sound and correct principles. If the grantor is in the exclusive possession of the land at the lime of the conveyance, claiming a fee adverse to the owner, although he was in by his own disseisin, his covenant of seisin is not broken [until the purchaser, or those claiming under him, are evicted, by title para- mount] . He has a seisin in deed, as contradistinguished from a seisin in law, sufficient to protect him from liability, under his covenant [as long as those claiming under him may continue so seised]. Actual disseisin, or the actual ad- verse possession of the lands of another, is the commencement of a right, which, by lapse of time, may ripen into a perfect title in the disseisor or possessor ; and during the time that the grantee of such disseisor remains in the undisturbed possession of the lands, by reason of the conveyance of such disseisor, he cannot maintain an action upon the covenant of seisin. No breach of such covenant will have taken place if the grantor was seised in deed at the time of the con- veyance, however that seisin may have been acquired. If the grantor, at the time of executing this conveyance, was in possession of the land, either as dis- seisor, or under color of title, it cannot be said that he was not seised of an estate in the premises." And this doctrine was subsequently affirmed in Foote v. Bur- net, 10 Ohio, 327, and Devore u. Sunderland, 17 id. 60. The parts in this quotation marked within brackets draw a distinction which is not recognized by the cases referred to in the text. Marston v. Hobbs and the cases which follow it decide that if there is an actual seisin the covenant is not broken at all, — that there has been and can be no breach, and that the covenant will have been fully answered, even though the purchaser should afterwards be evicted. But the case of Backus v. McCoy decides that where there is an actual seisin, the 58 THE COVENANT FOE SEISIN. proved very recently in Illinois.^ Where, however, the covenant is expressed by the words, " seised of an indefeasible estate," it receives the same construction everywhere.^ covenant is not broken at that time ; it remains unbroken so long as the grantee, or those claiming under him, continue seised, and the breach is post- poned until thei# seisin be disturbed, either actually or constructively. This course of reasoning is intended to give to the heir, the devisee, or the assignee of the covenantee, a right of action in his own name where the actual seisin has been transferred to him, — a result to which the cases above cited refuse their concurrence, as they hold that the covenant for seisin is broken, if at all, the instant it is made, becoming thereby a right of action and incapable of transmis- sion by descent or assignment ; see Ch. VIII. The class of cases thus referred to must be distinguished from that class to which belong Beddoe v. Wadsworth, 21 Wend. 120 ; Fowler v. Poling, 2 Barb. 800 ; Slater v. Rawson, 6 Metcalf, 439, &c., which decide that a seisin in fact is a sufficient estate to carry with it to an assignee the covenants for quiet enjoy- ment and of warranty ; see infra, Ch. X. It does not necessarily follow, how- ever, that such a seisin will support a covenant for seisin. In the late case in New York of Coit v. McReynolds, 2 Robertson, 658, the court, while consider- ing itself unable to understand what is meant' by seisin in fact as distinguished from a seisin in law, yet deemed the case of Fowler v. Poling, supra, to be an authority that a mere defeasible title will not work a breach of the covenant for seisin. ^ Watts V. Parker, 27 Illinois, 229. The court were "inclined to think the doctrine held by the Supreme Court of Massachusetts to be quite as applicable to our condition and to the exigencies of our State as any other, and to adopt it as a sound doctrine." The facts, however, showed that the title, as was said by the court, had ripened by twenty-six years' possession into an indefeasible one (as to which see infra, p. 64) . The case itself was perfectly correctly decided, as the action was not covenant brought by the purchaser, but the breach of the cove- nant was set up by the latter as a defence to payment of the purchase-money ; (as to which see infra, Ch. XIV.) ^ The distinction thus arising from the form of the covenant was noticed in Prescott u. Trueman, 4 Mass. 631 ; Smith u. Strong, 14 Pick. 132 ; Raymond v. Raymond, 10 Gushing (Mass.), 134; Garfield u. Williams, 2 Vermont, 328; Pierce v. Johnson, 4 id. 53 ; Abbott u. Allen, 14 Johns. 252 ; Collier v. Gamble, 10 Missouri, 472. "The doctrine established in some of the neighboring States,'' said the court in Pierce v. Johnson, " that the covenant of seisin is satisfied by a possession without title, cannot well be reconciled to sound reason, except when applied to the naked covenant of seisin without any words that imply any other right but mere possession." Professor Dane draws the distinction somewhat further than is supported by the authorities. "If," says he, "the grantor covenant he is seised in fee, and the issue be thereon, and he proves seisin in fact even by disseisin, he maintains the issue ; but if he covenant he ' is lawfully seised in fee,' and the issue be thereon, it is essential, to maintain the issue, he prove he was lawfully seised ; and if THE COVENANT FOE SEISIN. 69 There is one point of view from which the construction thus given to this covenant might readily appear to be correct. Since possession enduring for a sufficient length of time will, under the limitation acts, ripen into a good title, there would seem reason for holding that such possession should be regarded as an actual estate from the moment of its commencement, and therefore that the " seisin " which this covenant purports to assure might prop- erly be used in its old signification, and not, as has been more recently the case, as synonymous with title. ^ But some of these same cases which decide that a possession under color of title is sufficient to support a covenant for seisin as expressed above, take no distinction between such a covenant and the covenant of good right to convey. Independently of the stat- utes of champerty,^ the latter covenant has no connection what- ever with the possession, — it refers, as its language indicates, merely to the right.^ This distinction, however, seems often to have been overlooked. Thus, in an early case in Massachusetts,* it was held that one who, claiming to be seised, had covenanted that he had " full power, good right and lawful authority to sell," was a competent witness for his grantee, in au action against him under the paramount title, " as there was no covenant that tlie grantee should have a good title." So in a subsequent case,^ it seised only by disseisin and wrong, the jury cannot, on this issue, find lie was lawfully seised ; " 4 Dane's Ab. 339. The cases, however, do not draw the dis- tinction between " seised" and " lawfully seised." In most of those cited in the text, the covenant was that the grantor was lawfully seised, the two expres- sions being treated as synonymous. But the distinction is taken between these expressions and " indefeasibly seised." ' Thus in Wheeler v. Hatch, 3 Fairfield (Me.), 389; Thomas v. Perry, Peters' C. C. R. 49 ; and Wilson v. Forbes, 2 Devereux (N. C), 35, it was held that the covenant for seisin was broken by an adverse possession under color of title. In the first of these cases there were two lots, as to one of which the grantor was in possession, though without claiming title, and as to the other, there was an adverse possession under color of title, and it was held that the covenant was broken as to both. So in Triplett v. Gill, 7 J. J. Marsh. (Ky.) 436, it was held that a covenant that the grantor had good right to convey could not be construed as a covenant for seisin, because it was notorious at the time of con- veyance that there was an adverse possession. ^ The connection of this subject with the champerty acts is noticed infra, p. 67. 3 See infra, Ch. IV. * Twambly v. Henley, 4 Mass. 441. ^ Presoott V. Trueman, 4 Mass. 631. 60 THE COTENANT FOR SEISIN. was said " the covenant for seisin is not broken, for it was admitted that the grantor was seised ; neither is the covenant of a right to convey broken, for a man seised has a right to convey." ^ So in a more recent case,^ where the covenants were those of good right to convey and of warranty, it was said by the court that " the covenants of seisin and of right to convey are, to all practical purposes-, synonymous covenants ; the same fact, namely, the seisin in fact of the grantor claiming the right to the premises, will authorize both covenants, and the want of it is a breach of both." And very lately it has been said, " the covenant of a I'ight to convey is synonymous with the covenant for seisin. The actual seisin of the grantor will support both of these covenants, irre- spective of his having a good indefeasible title." ^ Again, where in a case in New Hampshire * the defendant had covenanted that he was the lawful owner of the land, and was seised and possessed thereof in his own right in fee-simple, and had full power and lawful authority to grant and convey the same, it was observed that " each of these amounts only to a stipulation that the grantor has such a seisin that the land will pass by his deed." ^ But the doctrine that the covenant for seisin is not broken if the ' The same expression was used in delivering the opinion of the court in Fitzhugh V. Croghan, 2 J. J. Marsh. (Ky.) 429, but the word seisin was there used as synonymous with title, in its old sense. " A complete legal title,'' said the court, "is the ^wm et seisince conjunctio, the title and possession united. This is the technical and legal import of the terms ' seised of the legal title.' ' Seisin ' means ex vi termini, the whole legal title. A covenant of seisin is broken if the covenantor have not the possession, the right of possession, and the right, or legal title. It would, therefore, be difficult to imagine a case in which a party could be seised and yet not have the right to sell and convey the legal title. Seisin is a nomen generalissimum which includes the right to sell ; Omne majus continet in se minus.'''' Although it may perhaps be doubted whether ' the signification thus given to the word seisin is not rather larger than the old law gave to it (else the words "Jus" and " seisina'" would not have been dis- tinguished as together msikmg a. Tperkct title, see p. 58), yet as applied to the covenant for seisin, the definition is certainly supported by all the authorities, except the few cases now under consideration; see infra, p. 61 et seq. * Slater v. Rawson, 1 Metcalf (Mass.), 450, 456. ' Raymond v. Raymond, 10 Gushing (Mass.), 134. * Willard v. Twitchell, 1 N. Hamp. 178, where it was said, " it is deeply to be regretted that it has been so settled," Breok v. Young, 11 id. 491 ; but in Parker V. Brown, 16 id. 176, these cases have been overruled, and the doctrine rejected ; see infra, p. 62. ' See itifra, p. 66 et seq., for an explanation of these cases. THE COVENANT FOR SEISIN. 61 vendor has an actual seisin at the time of the execution of the deed, is not only confined to the States already mentioned, but has been denied in others. In an early case in Vermont, the court said : " The present covenant declared upon is that the grantors were well seised of the same land in fee-simple, and had in themselves good right to bargain and sell the same in the manner in said deed mentioned. These expressions, and those of similar import, have always been considered in this State as amounting to a covenant of title. They have been inserted, that they should be so consid- ered. It is argued, liowever, that this means nothing more than that the grantors were in possession, claiming to hold in fee-simple. This alteration might as well be incorporated, by construction, into all the covenants that decidedly relate to title in the whole deed. That they were well seised in fee-simple, means that they were actually in possession, claiming to hold in fee-simple. That they had good right to sell and convey, means that they claim to have such right. That the premises are free from all incumbrances, means that they claim that they are thus free. This is not the most natural and obvious meaning of the usual expressions in deeds of warranty. They say nothing about claiming. They speak of realities. Pee-simple denotes a permanent estate. Well seised in fee-simple denotes a seisin of a permanent estate. Such would be the most natural construction, without the aid of concur- rent circumstances. But when we recollect that this deed was made and executed at a time and place when and where such ex- pressions were imiversally understood to relate to title, it would do injustice should we give to them a different construction." i The Massachusetts decisions have been also commented on with severity, and their reason denied in Connecticut ; ^ and in ■ Catlin V. Hurlburt, 3 Verm. 407, per Hutchinson, C. J. This decision has been always adhered to ; Richardson v. Dorr, 5 Verm, 21 ; Mills v. Cat- Un, 22 id. 106. ' Lockwood w. Sturdevant, 6 Conn. 385, where Hosmer, C. J., who delivered the opinion of the court, after considering that the cases of Marston v. Hobbs, &c., were inapplicable, observed, "I cannot yield to them my assent. That which shows covenants of seisin and of right to convey, to be broken, is their falsity. If the covenants are true, they remain inviolate ; if they are not true, they are broken. On the same principle, if they are entirely false, they are wholly violated ; and if partially untrue, they are broken, but in part only. All this is self-evident. Although the covenantor should have had the actual possession of the premises, and an ideal or imaginary right, founded on a 62 THE COVENANT FOR SEISIN. a recent case in New Hampsliire, the Supreme Court, after an able argument in opposition to the doctrine of actual seisin, repudiated it altogether ,i overruling the previous decisions in supposed title that was merely colorable, yet this is not a legal seisin in fee ; and nothing short of this will support a covenant that the grantor is seised in fee- simple ; because nothing short of this proves the covenant to have been true. This construction necessarily results from the unequivocal words of the cove- nantor, and the unquestionable object of the covenant. That was security to the purchaser, to the extent of the title purporting to have been conveyed. The determinations on which I am expressing an opinion are opposed to the plain intendment of the most unambiguous expressions, to the object of the parties in making the covenants in question, and to their utility by reducing them to little more than a nugatory agreement. A seisin in fact of an estate in fee-simple, if the word seisin intends any thing more than possession, is an expression without meaning, where there is no seisin in law. In the nature of things, there is but one species of seisin in fee, and that necessarily is the possession of an estate con- veyed, with such a legal interest as the fee-simple denotes." The covenant, how- ever, in this case was for an indefeasible estate, — an expression which admits of but one construction. The case, therefore, did not call for the above remarks, as was indeed admitted. In the recent case of Comstock v. Comstock, 23 Conn. 349, it was held that the covenant was broken if the covenantor was seised as tenant in tail only. ' Parker v. Brown, 15 N. Hamp. 186. "We have given the question,'' said Parker, C. J., who delivered the opinion, " all the consideration that the intrinsic importance of the principle, and the inexpediency of holding a different doctrine from that which has been once pi-omulgated, even incidentally, except in a clear case, demands of us. But that consideration has satisfied us that the fair import of the covenant of seisin extends beyond a mere engagement that the party is seised of the land by a seisin which would be good only against another having no pretence of title. After contracting that they are the lawful owners of the premises, the grantors covenant that they are lawfully seised in their own right in fee-simple. This engagement is certainly not satisfied in any just sense, by evidence that the grantors are unlawfully seised, without right, in their own wrong, or of no fee-simple, except such as is claimed wrongfully, and in disseisin of the true owner. This may be a good seisin against all but the true owner, but is not a seisin in the parties' own right in fee. The grantee who takes such a cove- nant for his security has a right to understand that his grantor transmits to him some seisin, other than one which will make him liable to the rightful action of a third person, the moment he enters under his deed. And we think we are required to give to the terms of the covenant the fair signification to be drawn from the language in which it is expressed. Parties not conversant with the law ordinarily understand this covenant as an assurance of a title, and we are of opinion that they have the right so to understand it. A party who has disseised another may be treated as seised of the fee, at the election of his disseisee. He cannot be permitted to qualify his own wrong ; but this is for the sake of the remedy. A party who remains in the adverse peaceable possession of lands for twenty THE COVENANT FOR SEISIN. 63 that State,^ which had, almost involuntarily, followed the train of authority in Massachusetts ; " and tliese latter decisions," it has been said, " contain, it is apprehended, the true rule of tlie com- mon law," ^ and are certainly supported by the weight of authority.^ In this apparent conflict of opinion, it is natural to refer to the years as owner, may thereby have evidence of a seisin in fee during that time. But this is for a quieting of possession and barring stale claims. It does not show that before the lapse of the period prescribed he had a lawful seisin in fee ; on the contrary, he was, until the expiration of the period, a wrong-doer. That the deed may transmit a seisin, in virtue of which and a possession under it the grantee may obtain evidence of an indefeasible fee-simple, does not show that the terms of the covenant are fulfilled. Nor does the consideration that the seisin transmitted may never be interrupted suffice to give a construc- tion to the covenant, or to show that the grantee ought not to maintain an action until he is actually dispossessed. The engagement of the grantor upon the cove- nant is not that he will be answerable if the grantee is ousted. That is the effect of the covenant of warranty. No wrong is done by the maintenance of the action ; for if the grantee recovers damages from the breach of the covenant of seisin, 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 convey- ance of the land, against the grantor. We see not why the grantor may not again enter, if he chooses, as against the grantee. A recovery in trespass, or trover with satisfaction, vests the property in the party against whom the damages are assessed. We are not aware of any thing in the nature of the feudal in- vestiture, or in the principles which regulate the title to land at the present time, that should require a different rule in relation to real estate. The record of the recovery will furnish as good an estoppel as that which arises from a disclaimer ; 4 N. Hamp. 182, Hamilton v. Elliott. The defendants may re-enter if they think proper, and will hold under their former possession against all persons who cannot show a better right." As to these latter expressions, see infra. ^ Willard v. Twitchell, 1 K". Hamp. 178 ; Breck v. Young, 11 id. 491 ; supra, p. 60. ^ 4 Kent's Commentaries, 472. ^ Greenby v. Wilcocks, 2 Johns. (N. Y.) 1 ; Morris v. Phelps, 5 id. 49; Ab- bott V. Allen, 14 id. 248 ; Fitch v. Baldwin, 17 id. 161 ; M'Carty v. Leggett, 3 Hill (N. Y.), 134; Mott v. Palmer, 1 Comstock (N. Y.), 564; Coit v. McRey- nolds, 2 Robertson (N. Y.), 655, noticed infra; Hastings v. Webber, 2 Verm. 407 ; Thomas v. Perry, 1 Peters' C. C. Rep. 57 ; Pollard v. Dwight, 4Cranch, 430 ; Fitzhugh v. Croghan, 2 J. J. Marsh. (Ky.) 430 ; see the remarks on that case cited, supra, p. 60, note ; Martin v. Baker, 5 Blaokf. (Ind.) 232 ; Woods V. North, 6 Humph. (Tenn.) 309; Pringle v. Witten, 1 Bay (S. C), 256; see the cases cited, supra, p. 61, note; Brandt v. Foster, 5 Clarke (Iowa), 287; Kincaid v. Brittain. 5 Sneed (Tenn.), 119, where the text was cited. In England such has been always the case ; Gray v. Briscoe, Noy, 142 ; Howell V. Richards, 11 East, 641 ; Young v. Raincook, 7 Com. Bench, 810. 64 THE COVENANT FOR SEISIN. probable reasons which have led to the adoption of the doctrine thus advocated on the one side and denied on the other. Its origin has at times been doubted. It has been suggested that " the rule seems in some measure to liave grown out of the hardship, real or apparent, of permitting a grantee to recover back tlie consideration- money and interest, while he or his assignee is enjoying a posses- sion that by lapse of time may ripen into a perfect title." ^ But if the doctrine of actual seisin has had its rise from the reason here suggested, courts have been forced to go further than such an exigency required. For if the covenant be fully answered by the transfer of an actual, though a tortious seisin, the subse- quent disturbance of the purchaser can logically give him no rights under that covenant, as its purpose was accomplished by the trans- fer of the actual seisin ; and it seems to be admitted by some of the cases that such must be the necessary consequence.^ And it will be hereafter seen, in considering tlie question of the measure of damages upon a breach of this covenant,^ that a grantee is not entitled as a matter of course to recover back the considera- tion-money and still retain the land for which it is thus deemed an equivalent.* Every endeavor is made, while securing to the pur- chaser the full benefit of his covenant, to protect the vendor from losing both the land and its price ; and it is sought, so far as is practicable, to give to the recovery of the consideration-money, in an action on the covenant for seisin, the effect of revesting in the covenantor the title, such as it is, which he has conveyed. It is believed, therefore, that a more satisfactory reason exists. It has already been said that the doctrine might well be accounted for on the ground of seisin being used as synonymous witli pos- session,^ were it not that the same construction has, in some cases, • Mr. Wilcox's note to Foote m.' Burnet, 10 Ohio, 327. ^ In Cushman v. Blanchard, 2 Greenleaf (Me.), 266, it was said (per Mellen, C. J.), " If the grantor was seised in fact, though not of an indefeasible estate, and the grantee enters under his deed, then the covenant of seisin is not broken ; but the grantee may be evicted by elder and better title, and then the covenant to warrant and defend is broken, and no oilier^ So in the recent case of Cornell V. Jackson, 3 Gushing (Mass.), 509, the court said, " A paramount title does not affect a covenant for seisin." ^ Infra, Ch. IX. ■* Thus if the purchaser has bought in the paramount title, his damao-es are limited to the amount thus paid by him. See infra, Ch. IX. ' See supra, p. 64. THE COVENANT ,FOE SEISIN. 65 been applied to the covenant for good right to convey, which would appear to have no connection with the possession, but to be confined exclusively to the right; the reason is, therefore, inapplicable to the latter covenant. The foundation of the doctrine must therefore be souglit from another quarter, and it is believed to have sprung from the doc- trine of adverse possession, as connected with the champerty acts. It is familiar that the delivery of possession was the essential part of a feudal transfer, and that this was, in later times, dispensed with by the introduction of deeds taking effect by virtue of the statute of Uses, by which the transfer of land was effected without a notorious delivery of possession. With the view to counteract this, and at the same time preserve the statute itself, it seems to have been the aim of the legislature to exact still some notoriety in the transaction, and with this end the statute of Enrolments was passed. 1 Soon after came the act commonly known as the ' 27 Hen. VIII. c. 16. " It was evidently," says Reeves, " a principal object of the makers of that act (the statute of Uses) , that land should thenceforwai-d be transferred, as anciently, by feoffment with livery of seisin, and by other common-law assurances, whereby the notoriety of the alienation might add sta- bility and quiet to every man's possession and right ; but it is remarkable that this very statute, on the contrary, contributed in the end to bring feoffinents into entire disuse, and gave rise to a secret mode of conveying land pregnant with all the inconveniences and mischiefs before complained of. They reasoned in this manner: if he who is seised of the use becomes by the force of the statute seised of the land, then to give the use is in effect to give the land ; and the facility and privacy with which this may be transacted renders it a desirable way of effect- ing that purpose. Upon this principle, the conveyances before in practice were continued, legitimated as they now were by the operation of the statute upon them, and others were soon invented of the like nature. A conveyance to uses became on many accounts the commonest, and perhaps the surest, mode of transferring land. These conveyances have continued in practice ever since, and to give effect to them is now one of the principal operations of the statute. The Parliament soon saw that this would be the consequence of the statute, in one instance ; for, if the statute executed every use that was raised, a person who wanted to part with his land had nothing to do but to raise a use by bay-gain and sale, as was then commonly practised, and the statute would confirm the cestui que use in the seisin of the land as fully as if there bad been a transmutation of possession by feoffment, fine, or recovery. To prevent the mischief of this in some degree, it was enacted by statute 27 Hen. VIII. c. IG, that no bargain and sale should enure to pass a freehold, unless the same be made by indent- ure, and be enrolled within six months in one of the courts at Westminster, or with the custos rotulorum of the county ; after which provision, it was thought the conveyance of a use would be as notorious as the ancient common-law assur- ances ; " 3 Reeves' History of the Common Law (Finlason's ed.) , 384. 5 66 THE COVENANT FOR SEISIN. "Pretended Title Act,"i which seems further to mark the design of the legislature to preserve the transfer of the possession as an ingredient of title, by prohibiting the bargain, sale or transfer of any premises of which the party had not been in possession or received the rents or profits for a year previously, under the pen- alty (imposed both upon the seller and the purchaser, if he pur- chased knowingly) of the forfeiture of the value of the premises. " This statute," said Montague, C. J.,^" has not altered the common law, for the common law before the statute was, that he who was out of possession ought not to bargain, grant or let his title, and if he had done so, it would have been void ; then the statute was made in affirmation of the common law, and not in alteration of it ; and all that the statute has done is, it has added a greater penalty to that which was void by the common law before." ^ This passage, to be properly understood, must be taken as having reference to the mode of conveyancing introduced by the statute of Uses. The common law had, indeed, long before then, declared that tlie transfer of a right of entry or a right of action was void, "lest there should be maintenance and stirring up of suits;"* and the same doctrine was applied, as part of the common law, to the transfer, through -the medium of the statute of Uses, of real estate of which the possession was not transferred with the right.^ But before that statute there could scarcely be such a thing as a transfer of land held at that time in adverse possession. " Where ' 32 Hen. VIII. o. 9. ' Partridge v. Strange, Plowden, 88. ' " It is a mistake to suppose,'' said Duer, J., delivering the opinion of the court in Hoj't v. Thompson, 3 Sandford (N. Y.), 430, " that the law of cham- perty is derived from the provisions of the staciTterw^fi we have rt-enacted, that forbids the conveyance or sale of Ia;id? by a party outjOf possession. The stat- utory prohibition is not only a partial affirmance of a jffeneral rule of the common law. The common law forbids every transfer of a di<*puted title or right, whether relating to real or personal estate, by a person out/of possession ; and it is mani- fest that the reasons of public polj--- upon wl'.ich the interdiction is founded, apply with equal force to every desS^ition') of property." The student will find the doctrine here referred to ably eVmjjned in the notes to Row v. Dawson, 3 Leading Cases in Equity, 332. V' * Co. Litt. 214 a; Lampet's case, 10 Coke, 48. = By the act of 8 & 9 Vict. c. 106, § 6, a contingent, executory and future interest, and a possibility coupled with an interest in land, also a right of entry, whether immediate or future, vested or contingent, may be disposed of by deed, provided it do not defeat or enlarge an estate tail. THE COVENANT FOE SEISIN. 67 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 seisin should be effectual, it was neces- sary in general for the feoffor to have actual possession at the time of livery made. For this purpose, a claim by him, and his presence upon the land, if with present right to possess it, were not suffi- cient ; but it was requisite that the party previously possessed, and all persons holding for him, should either be expelled from every part of the premises, or that he should virtually surrender posses- sion by giving his consent to the feoffment." ^ When, however, the mode of assurance was altered, and the land could be transferred without a notorious change of possession, the application of the remarks of Montague becomes obvious. Whatever may have been the intention of the legislature in passing the Pretended Title act, it is certain that it was judically looked upon as scarcely altering the law as it stood at that time, and that the offence of maintenance consisted not so much in taking a con- veyance of the whole or part of a tiling not vested in the party by ' Judge Have's note to Duchess of Kingston's case, 2 Smitlj's Leading Cases. In the last American editions of this booli, published since the former editions of the present work, the editor has thus altered the expression of the passage : " The distinction between the mere principle that a thing not possessed cannot be granted, and the offence of maintenance, is the more evident from the course of equity, which looks upon actual maintenance in the same light as the common law (Stephen v. Bagwell, 15 Ves. 139), and yet gives effect to the transfer of future and contingent estates and interests. It consequently appears that the conveyance of estates not vested in interest was void at law, not as amounting to maintenance, — for had that been the case no relief could have been afforded in equity, — but under the operation of a general rule of policy, which forbade the transfer of any right not sustained and accompanied by possession, in order to avoid giving occasion to maintenance ; Co. Litt. 314 ; Bacon's Abr. tit. Grant, D. As this rule was founded on the want of possession, it did not apply when the mode of assurance implied and transferred an actual possession, unless the cir- cumstances were such as to show that maintenance actually existed. And this seems sufficient to explain the distinction between the effect of a feoffment and of a grant ; for a feoffment was substantially livery of seisin, and livery could not be made unless the feoffor was in actual possession of the land at the time of . making it ; Knox v. Jenks, 7 Mass. 488. Such a possession could not be acquired by an entry on land held adversely by another, unless he and all persons holding under him were either expelled from every part of the premises, or gave their consent to the feoffment; Litt. § 781 ; Co. Litt. 48 6. As, therefore, a feoffment could not be made without obtaining actual possession, a previous want of pos- session formed no obstacle to its operation ; " 2 Smith's Leading Cases, 623. 68 THE COVENANT FOR SEISIN. whom it was made, as in taking it in consideration of assisting or maintaining a suit for its recovery.^ Such has been the course of decision in England down to the present day ,2 and it is there well settled, that where the transfer is not made for the purpose of assisting or maintaining a suit, the mere fact of an adverse pos- sessioji will not invalidate the conveyance.^ In many parts of this country, however, the doctrine has received a wider application. In some of the States, the statute of Hen. VIII. has been re-enacted literally, in some it has been modified,* in others the prohibition of champerty is regarded as part of the common law of the State,^ while in some it has no existence what- ever.^ In those States, however, in which, whether by statute or ' Note to Duchess of Kingston's case, supra. ^ Stanley v. Jones, 7 Bing. 369 ; Doe v. Evans, 1 Com. Bench, 717 ; Hitching V. Lander, Cooper's Ch. Cas. 34 ; Sharp v. Carter, 3 P. Wms. 375 ; Prosser v. Edmonds, 1 Younge & Col. (Exch.) 481; Plarrington v. Long, 2 ]Myl. & Keen. 690 ; Anson v. Lee, 4 Simons, 364 ; Hunter w. Daniel, 4 Hare, 420 ; Wil- son V. Short, 6 Hare, 366 ; Cook v. Field, 15 Q. Bench, 460 ; Cockell v. Taylor, 15 Beavan, 103. 3 Doe V. Martyn, 8 Barn. & Cress. 497. " See 4 Kent's Com. 466 ; Sherry v. Frecking, 4 Duer (N. Y.), 454 ; Sedg- wick V. Stanton, 4 Kernau (N. Y.), 289; Sherwood v. Waller, 20 Conn. 262; Newkirk v. Cone, 18 Illinois, 449 ; Breckinridge v. Moore, 3 B. Monroe (Ky.), 629; Little v. Bishop, 9 id. 247; Way d. Arnold,' 18 Georgia, 181; Chair's v. Hobson, 10 Humph. (Tenn.) 865 ; Bledsoe v. Rogers, 3 Sneed (Tenn.), 466. ^ Brinley v. Whiting, 5 Pick. 355 ; Dexter v. Nelson, 6 Alabama, 69 ; Fite V. Doe, 1 Blackf. (Ind.) 127 ; Martin v. Pace, 6 id. 99 ; Bowman v. Wathen, 2 McLean (C. C. U. S.), 380; Michael ». Nutting, 1 Carter (Ind.), 481 ; Well- man II. Hickson, id. 581 ; Wood v. McGuire, 21 Georgia, 576. * Such as Pennsylvania (Stoever v. Witman, 6 Binney, 420 ; Cresson v. Mil- ler, 2 Watts, 272) ; Maine (the law having been recently altered. Buck v. Bab- cock, 36 Maine, 491) ; New Hampshire (Hadduck v. Wilmarth, 5 N. Hamp. 181) ; Vermont (Danforthw. Streeter, 2 Williams, 497) ; Delaware (Bayard w. McLane, 3 Harr. 139, where the subject was elaborately considered) ; New Jersey (Thomas V. Perry, 1 Peters' C. C. Rep. 64) ; South Carolina (Poyas v. Wilkins, 12 Rich- ardson's Law R. 428) ; Virginia (the Code having recently, in imitation of the statute of 8 & 9 Vict. c. 106, § 106, supra, p. 66, n. 5, provided that " any interest in or claim to real estate may be disposed of by deed or will ; " Carrington v. Goddin, 13 Grattan, 599, and see the former statutes of champerty, thus repealed, referred to in ftliddleton v. Arnolds, 13 Grattan, 489) ; Arkansas (Lytle v. The State, 17 Ark. 608) ; Iowa (Wright v. Meek, 3 G. Greene, 472) ; Wisconsin (Noonan v. Lee, 2 Black (S. C. U. S.), 607); and, it is believed, some other States. An excellent historical sketch of the statutes of champerty will be found in an able opinion delivered by Scott, J., in the recent case of Lytle et al. v. The State, 17 Ark. 608. THE COVENANT FOR SEISIN. 69 common law, the offence of champerty is forbidden, the effect of such prohibition seems to be that a conveyance by a party out of possession, and witli an adverse possession against him, is void as against the party in possession ; in other words, as respects the latter, the grantor has passed no right whatever to his grantee. The mere fact, therefore, of the transfer of real estate of which there is an adverse possession, is deemed of itself an offence within the champerty acts. It would seem, therefore, to have been the intention of the courts in which the doctrine of actual seisin prevails, to consider the cove- nants for seisin and of good right to convey, 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 cham- perty, and to furnish him with a recompense if such should be the case. If, therefore, an actual seisin were transferred to the pur- chaser, the vendor had a right to convey within the spirit of the champerty acts, and the covenants for seisin and of good riglit to convey were fully answered. Such at least would appear to be the more philosophical reason for tlie construction which it has been seen has, in some States, been given 'to these covenants.^ ' Such was the suggestion of Hutchinson, C. J., in the case of Catlin v. Hurl- burt, 3 Vermont, 407. "It is probable,'' said he, " the covenant for seisin was anciently introduced into deeds, to guard against such an adverse possession as would render the deed void, as would have been the case at common law, and is now the case by virtue of our statute, if there be an adverse possession." And in Pierce v. Johnson, 4 Vermont, 253, the same learned judge observed, " The naked covenant of seisin 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 would render the deed void as an instrument of con- veyance, and throw the grantee upon his covenants as a remedy." So in Triplett V. Gill, 7 J. J. Marsh. (Ky.), 436, it was said, " Grayson, without being seised in fact, or in law, may, according to the law in force at the date of the deed, have had lawful right and authority to convey a legal title. The champerty act of 1824 did not take effect until July of that year.'' So again, the champerty acts are most probably referred to by the expression in Phelps v. Sawyer, 1 Aikens (Vt.), 157, "Had Sawyer given his deed with a covenant that he was sole owner of the premises and had good right to convey, and the breach had been assigned upon sui'h covenants, the charge would have been correct, for Sawyer could have no right to sell while any person was in possession adverse to him." And in Clarke v. McAnulty, 3 Serg. & Rawle (Pa.), 372, it was said, "It is urged that the statute of 32 Hen. VIII. c. 9, is not in force here, and as it is usual to sell land where the vendor is not in possession, a larger operation should be given to the covenant of warranty here than elsewhere, because the 70 THE COVENANT FOE SEISIN. A question, however, arises in this connection as to tlie eiJect of the champerty acts on the covenants for title contained in the con- veyance. It would seem that when the purchaser buys with knowl- edge of the state of the title, courts will not lend their aid to enforce the covenants which 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 claim- ant, 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." ^ vendee, where lie did not obtain actual possession, would otherwise be without remedy. This is a good reason why a purchaser should secure himself by a cove- nant of seisin or that the vendor has a lawful right to convey, but it is no reason why the law should interfere to cure the effects of negligence at the expense of confounding settled distinctions." ' Williams v. Hogan, Meigs (Tehn.), 189 ; the statute in this State rendered, however, such a sale void for all purposes. An early case in Pennsylvania (Mitchell v. Smith, 1 Binney, 110), and three of about the same date in New York (Belding v. Pitkin, 2 Caines, 147 ; Whit- taker J). Cone, 2 Johnson's Cases, 58; Woodworth u. Janes, id. 417), which arose under peculiar circumstances, may be here referred to as illustrative of this question. Some time after the settlement of Pennsylvania, many difficulties sprung from conflicting claims to lands in the northern part of that State, derived on the one hand from the proprietaries, or the Commonwealth, and on the other from the " Susquehanna Company " under the title of Connecticut; and after years of contest, and even some bloodshed, Congress interfered, and certain com- missioners or judges appointed by its authority decided the right of government to be in Pennsylvania, leaving, however, the question of particular titles un- touched. Many of the old settlers under the Connecticut title still remained, and numbers of new settlers under it intruded themselves ; and after repeated efforts to remedy the mischief, the legislature of Pennsylvania, in 1795, passed an act called the Intrusion Law (act of 11th of April, 1795 ; 8 Smith's Laws of Pennsylvania, 209, and see the note in that volume), the first section of which imposed a penalty upon any one who should intrude or settle within certain counties named, under any " half share right or pretended title not derived from the authority of this Commonwealth,'' and the second section made it also penal for any person to combine or conspire for the purpose of conveying or settling any such lands. In Woodworth v. Janes, supra, decided in New York in 1800, a bill filed by the purchaser of a Connecticut title to compel repayment of that part of the purchase-money which had been paid was dismissed by the court, on the ground THE COVENANT FOR SEISIN. 71 When, however, the conduct of the purchaser has not been such as to bring himself within the spirit of the champerty acts, it would seem that however inoperative the transfer might be as against the party in possession, yet as between the parties them- selves it is valid,! and will operate not merely by way of estoppel to the grantor,^ but the covenants in the deed can be made available to the grantee.^ that as there was evidence that the purchaser bought with knowledge of the state of the title, equity could not lend its aid either to enforce or rescind such a con- tract, but would leave the parties to their remedies, if any, at law ; and in the subsequent case of Whittaker «. Cone (decided. after Woodworth v. Janes, though reported in a prior part of the volume), where the plaintiff sued at law upon promissory notes given for the purchase-money of such a title, the court refused to sanction a recovery, and the plaintiff was nonsuited. A similar decision was made in the same State, in Belding v. Pitkin, supra; while in Pennsylvania the case of Mitchell «. Smith, supra, presenting facts almost identical with those in Whittaker v. Cone, came before the court about the same time, and after elabo- rate argument was decided in favor of the defendant. The ground taken by these cases necessarily assumes that, under such circum- stances, the covenants cannot be deemed collateral to the transaction, so as to bring the case within a familiar class of cases which the student will find in the notes to Collins v. Blantern, 1 Smith's Leading Cases, 169 ; Smith on Contracts, 151, &c. ; for the very object of a purchaser who, being fully cognizant of the state of the title, obtains these covenants, is to protect himself by means of them in the very transaction forbidden by the law. The general principle is well set- tled that " where honesty requires it, and ut res magis valeat quam pereat," courts will endeavor to enforce independent covenants, as in Morris v. Leake, 8 Term, 415 ; Kerrison v. Cole, 8 East, 234, &c. Where, however, both parties are in pari delicto, or when a statute has made the transaction absolutely void, as is the case with the champerty acts in Kentucky (Breckinridge v. Moore, 3 B. Monroe, 629, 645 ; Graves v. Leathers, 17 id. 668), the covenants are useless to the party receiving them; Lee v. ColehiU, Gro. Eliz. 527; Waters u. The Dean and Chapter of Norwich, 2 Brownlow, 158. > Br. Ab. tit. Feoffment, pi. 19 ; Co. Litt. 369 ; Upton v. Barrett, Cro. Eliz. 445, per Beaumont, J.; Abernathy v. Boazman, 24 Ala. 193; Middleton «. Arnolds, 13 Grattan (Va.), 489. ^ Jackson v. Demont, 9 Johns. 55; Livingston v. Peru Iron Co., 9 Wend. 616 ; Van Hoesen v. Benham, 15 A. 165 ; Livingston v. Proseus, 2 Hill, 528 ; Wade V. Lindsey, 6 Metcalf, 407 ; Edwards v. Roys, 18 Vermont, 478; Den v. Geiger, 4 Halsted (N. J.), 235. ^ Thus, in Phelps v. Decker, 10 Mass. 267, decided in Massachusetts in 1813, the defendant, a resident of Pennsylvania, was sued in the former State on the covenants for title contained in a deed executed by him in New York, and pur- porting to convey to the plaintiff, who resided in that State, land granted by the Susquehanna Company under the Connecticut title. The deed purported to convey the premises as " warranted from all claims and demands whatsoever, so 72 THE COVENANT FOE SEISIN, The result, then, of the authorities, as connected with the doc- trine of actual seisin, appears to be this. It is probable that the far as the Connecticut Susquehanna Company's purchase extends and is regularly- made," and there were also unlimited covenants for seisin, of right to convey, for quiet enjoyment, and of warranty. The defendant pleaded that all the estate of the Susquehanna Company was regularly vested in him, and by him transferred to the plaintiff. To this the latter demurred, and there was also a case stated, in which it was agreed that the defendant had the title of the Susquehanna Com- pany, 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 argued three times, and the court, after holding it under advisement, decided that other facts than were stated must be proved before the plaintiff could be said to have combined and conspired to convey a pretended title within the act. " If he purchased," said the court, " ignorant of this statute and of the defect of the title conveyed to him, as he must be presumed to have been, the deed as to him and against the defendant who deceived him, is good under the statute ; and supposing the deed executed within the State of New Yoi-k, and that to be the only overt act provable to substantiate any offence with'm the penalties of the statute, even the defendant would not be liable. And- although the deed may be so far illegal as to be void, and not only an ineffectual con- veyance, but also incompetent evidence of title within the State of Pennsylvania, yet there seems to be no reason to conclude that it is void as between these parties. As a conveyance, its operation is local, and determinable only where the land lies which was pretended to be conveyed by it ; but respecting the consideration paid and the personal contracts collateral to the title for the assurance of the purchaser, this contract, made in another State, with a person there domiciled, and not a subject of, or presumed to be conusant of the laws of Pennsylvania, is not to be considered as void ab initio." This decision cannot, under the circumstances of the case, be considered as open to objection. It is distinguishable from the other cases which have been referred to under this statute, because in them the plaintiff came directly within the spirit of the act, and was really a party to the unlawful traffic; it is dis- tinguishable, moreover, from the case of Breckinridge 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 ; the lex fori and the lex loci rei sitce were therefore the same; and, moreover, it would appear from the decision, that the Kentucky champerty act, like the English statutes against usury and gaming, declared the contract void, thereby invalidating even negotiable notes based upon it, in the hands of holders for value without notice, by expressly providing that " no right of action shall accrue to either party under such deed ; " Graves v. Leathers, 17 B. Monroe, 668. The same remark applies to the act of Congress of 29th of May, 1830, " granting pre-emption rights to settlers on the public lands," which declared " that all transfers of the right of pre-emption prior to the issu- ance of patents should be null and void ; " under which statute it has been held, not only that the deed conveys no title whatever (Nichols v. Nichols, 3 Chand- THE COVENANT FOR SEISIN. 73 covenants for seisin and of good right to convey were either introduced or applied in conveyances in some of the colonies in this country, as assurances to the purchaser that there was no such adverse possession as would render the deed inoperative as a muniment of title — as assurances that the vendor had such an actual seisin of the subject of the purchase as would give him a good right to convey it tuithin the spirit of the statutes referred to. With this interpretation, the language used in the cases which have been referred to appears perfectly intelligible. The only case in which it would appear that the covenants could not be used for that purpose, would be where the purchaser bought with such ler (Wis.), 195), but that a warranty in a, deed transferring such right could have no effect, even by estoppel ; Doe v. Hays, 1 Carter (Ind.), R. 248 ; s. c. 1 Smith (Ind.), 177. Although it is well settled, at least in American law, that a purchaser of land in another State or country, places himself as to that land in the s'ame position as its subject, and must be presumed to know the lex loci rei sitce, and to be willing that his contract should be governed by it (Cutter u. Davenport, 1 Pick. (Mass.) 81; Hosford v. JSTichols, 1 Paige (N. Y.), 220; Chapman v. Robertson, 6 id. 630 ; Wills !). Cowper, 2 Ohio, 124 ; Breckinridge V. Moore, 3 B. Monroe (Ky.), 687 ; Story's Conflict of Laws, § 865 ; Williams b. Maus, 6 Watts (Pa.), 280) ; which, also, seems to be the law in England (Robinson v. Bland, 1 W. Black. 246 ; s. c. 2 Burrow, 1079 ; Scott u. Alworthy, 2 Dow & Clarke, 412 ; Curtis v. Hutton, 14 Vesey, 541 ; Birtwhistle v. Vardill, 5 Barn. & Cress. 438 ; S. 0. 9 Bligh, 32 ; Waterhouse u. Stansfield, 9 Hare, 233) j 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 Pennsj'lvania statute or the champerty acts. In the cases cited from New York and Pennsylvania, the purchaser had actual notice of the enactment, and of the state of the title. The decision in Phelps v. Decker must necessarily have been the ground of that in Van Hoesen u. Benham, 15 Wendell (N. Y.), 165, where the grantor was admitted as a witness for the grantee, ore the release of the cove- nants for title contained in a, deed which, under the champerty acts, was inope- rative as to third persons. A decision to the contrary in Williams v. Hogan, Meigs' (Tenn.) R. 187, was cited approvingly by the court in Abercrombie ». Baldwin, 15 Ala. 371 ; but in the more recent cases of Harvey v. Doe, 23 Ala. 637, and Abernathy v. Boazman, 24 id. 189, it was expressly held that the deed was valid as between the parties, and it was said that the decision in Tennessee must be considered as based upon the positive terms of the statute in that State. In considering the cases generally upon the subject of a party to a contract being cognizant of or participating in the illegality which affects 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 revenuel&vis, than those in violation of other statutory provisions, and Holman v. Johnson, Cowper, 342, which was much relied on in deciding the case of Phelps v. Decker, was one of the smuggling cases. 74 THE COVENANT FOR SEISIN. knowledge of the state of the title as to bring the case within the champerty acts. It will be observed that so far as those statutes are concerned, it is immaterial whether the adverse possession has been recent in its commencement, or has continued for so long a time as, under the limitation acts, to have ripened into a perfect title. It is the existence of the adverse possession which constitutes the offence which these statutes forbid, — -which deprives the vendor of "a right to convey," — which gives to his deed no effect as against the one in possession, and which therefore causes a breach of the covenants referred to. Where, however, such statutes are not in force, and consequently where no such construction can, consistently with principle, be given to these covenants, the duration of the adverse possession may be an important element in determining the question of the breach of the covenant for seisin. Where the adverse possession has been so actual, continued, visible, notorious, distinct, and hostile,^ as under the limitation acts to have formed an indefeasible title, it is obvious that the covenant for seisin must be broken.^ It is not, however, altogether free from doubt whether such would be the case if the possession had not endured for the requisite length of time;^ and it is certain that the English courts seem disposed, ' See the note to Taylor v. Horde, in 2 Smith's Leading Cases, 492. - Wilson V. Forbes, 2 Dev. (N. C.) 30. ^ In Thomas v. Perry, 1 Peters' C. C. Rep. 52, Mr. Justice Washington was of the opinion, that " if the possessions amounted to actual ousters under claims of title, however defective, the covenants of seisin was broken ; " or, as he sub- sequently said, " that if at the time the covenant was entered into, the grantor was disseised, the covenant is broken, how good soever his title maybe ; " p. 55. (This, it should be observed, was said without any referrence to the champerty acts, which were not in force in New Jersey.) The case, however, was decided 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 settled in accordance with the authorities referred to in support of it. But on more careful examination of the cases cited, none but Thomas «. Perry appears to go to that extent. In Wilson v. Forbes, 2 Dev. (N. C.) 80, the possession had lasted for twenty-five years, and was therefore an indefeasible one. In Wheeler t>. Hatch, 3 Fairfield (Me.), 389, the report merely says that the grantor was "not seised." but says nothing of an adverse possession, while the expressions in Phelps v. Sawyer, 1 Aiken (Vt.) , 157, 158, are properly referable to the effect of the champerty acts ; supra, p. 69 n. In Fitzhugh u. Croghan, 2 J. J. Marsh. (Ky.) 430, however, the court, in giving its THE COVENANT FOE SEISIN. 76 at the present day, to treat mere possession, unaccompanied by- right, as destitute of all the qualities of an estate.^ general views on the nature of the covenant (see them cited, supra, p. 60), ex- pressed an opinion that " a covenant of seisin is brolien if the covenantor have not the possession, the right of possession, and the right, or legal title." > Doe V. Hull, 2 Dowl. & Ry. 38 ; Cully v. Doe, 11 Ad. & Ell. 1008 ; Doe V. Martyn, 8 Barn. &' Cress. 497; and where, in Jerritt v. Weare, 3 Price (Exch.), 575, the vendor covenanted generally that he was seised in fee, with- out any condition or other estate whereby to alter, bar, change, charge, burden, impeach, incumber or determine the same, and had good right to convey the same, and it appeared that the lady of the manor had previously demised a por- tion of the subject of the purchase for ninety-nine years, and the lessees had entered upon and continued to enjoy possession, it was held, notwithstanding the able argument of Mr. Preston for the plaintiff, that the covenants did not extend to these leases. It was asked by the court, ' ' What can a man be supposed to covenant against beyond the validity of the title? and most assuredly not against these surreptitious pocket leases." The action of covenant, it was added, only extended to the consequence of legal acts, and the reason was to be found in the case of Hayes v. Biokerstaff, 1 Vaughan's Rep. 118, that the law shall never judge that a man covenants against the wrongful acts of strangers. Upon this decision, however, Sugden has made the following remarks: "It will be observed that the leases were accompanied with actual possession by the lessees, who had expended money on the property. They were, therefore, within the covenants ; and unless the covenants were held to extend to these leases, general covenants for title would be waste paper. They are always in- tended to guard against a title adverse to the covenantors, although it may not be a lawful title. Clearly the leases were a charge on the property at the time of the conveyance, and an ejectment at all events was necessary to dispossess the lessees. They therefore were an incumbrance within the covenant. It is not like the case of interruptions subsequent to the conveyance, by persons not claiming lawfully. The case was argued upon much higher grounds, and this probably led the court not to give due weight to the above simple view of it ; " Sugden on Vendors (13th ed.), 489. By the higher grounds here referred to, is meant the position assumed by Mr. Preston in the argument in favor of the doc- trine of disseisin, as it was conceived by him (in common with Mr. Butler and others) to have existed at common law, and as opposed to the doctrines enforced by Lord Mansfield, in the case of Taylor u. Horde, 1 Burrow, 49 ; see supra, note top. 54. On these grounds, Mr. Preston never forgave the decision in Jerritt v. Weare, -as his pointed remarks in the preface to the third volume of the " Ab- stracts of Title" sufficiently show. Sugden, as will be perceived, gives no opinion as 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 by an ejectment, had sprung ; and his opinion seems to be gen- erally adopted by the profession, if we may judge from the fact that the author of the rival treatise on Vendors, quite willing to differ from Sugden whenever possible, has also intimated that " this decision seems to be of very doubtful authority ; " Dart on Vendors (4th ed.), 717. 76 THE COVENANT FOR SEISIN. It may be thought that too much space has been occupied with these decisions upon the nature of a covenant, usually accompanied by others which would seem to correct, by their own scope and application, any diiificulty which could arise from the purchaser's being without remedy iu case of subsequent loss, if he had received an actual seisin at the time of his purchase. But although, if the covenant for seisin were the only one in the con- veyance, the questions just considered would be of much practical importance, yet they possess scarcely less, even where there are also covenants for quiet enjoyment or of warranty. For these cov- enants, which are said to assure the purchaser's possession, are therefore broken only by his eviction from it ; and although the doctrine of constructive eviction has been in some cases carried very far, yet there are few, if any, which allow a 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 iu which this would be more to his benefit (it being always understood that his damages are measured by what he has paid) than to wait till the paramount owner should choose to enforce his claim. Many authorities, however, refuse to con- sider this as an eviction within the covenants for quiet enjoyment or of warranty ; and where, under such circumstances, the cove- nant for seisin is held to have been fully answered by the transfer of the actual seisin, the purchaser is in the same position as if the covenants for quiet enjoyment or of warranty were the only ones in the deed,^ and he is obliged to await the time of his involuntary eviction, instead of purchasing iu the title, and thus acquiring a right to damages upon his covenant for seisin, to the extent of the amount paid by him. The doctrine of actual seisin does not, however, seem to prevail throughout the States generally, but only in Maine, Massachusetts, and to a qualified extent in Ohio. Elsewhere, as we have seen, the covenant for seisin is regarded as a covenant for the title, the word being used as synonymous with riglit;^ and although there would be no question that it would be broken by an adverse possession, continued for the length of time required by the limitation acts,* ' See Ch. VII. " Clark V. McAnulty, 3 Serg. & Rawle (Pa.), 372. ' Supra, pp. 54, 65, 63. * See supra, p. 74. THE COVENANT FOR SEISIN. 77 yet such a possession would itself amount to an indefeasible title, which, if not marketable, would only be because its validity was a question of evidence rather than of law. It may, however, be observed that if the law of covenants for title be abstractly treated as a part of the law of real estate, the student will be constantly led into practical difficulties. The law of real estate is an abstract and artificial system, based upon rules, many of which sprung from and were applicable to a different state of society. These rules have required to be modified or changed with great caution and delicacy, if at all. It has been generally acknowledged that it is of less consequence what may or may not be the precise rule on a particular branch of this part of the law, than that the rule, when once established, should be looked upon as a rule of property, and, as such, subject, not to judicial but to legislative alteration. But the law of covenants for title is, as it were, collateral to this system. In part it is subject to its rules, and in part it must be moulded and governed by the intention of the parties as expressed by the tenor of the whole instrument. To say, therefore, that a particular construction given to a certain covenant is or is not the law of a State, means practically no more than that in cases of difficulty, the intention of the parties will, to a certain extent, be referable to that construction. But while the intention of the parties is to be the governing rule, yet it is conceived that in most instances in which the relation of vendor and purchaser is entered into, that intention, when applied to the averment that the vendor is seised and that he will respond in damages if he be not, extends beyond such a mere seisin as will enable the purchaser to obtain possession in the first instance. The want of present possession is a defect which can generally be discovered by immediate observation or inquiry, and is not one against which a purchaser usually seeks to protect himself by a covenant, but it is not so, as to a defect in the title. Apart from this local construction of the covenant for seisin, it is defined to be " an assurance to the purchaser that the grantor has the very estate in quantity and quality which he purports to convey ; " ^ and, owing to the precision of language in which it is ' Howell V. Richards, 11 East, 641, per Lord Ellenborough. 78 THE COVENANT FOR SEISIN. expressed in England, no case' can there be found which less in than an exact compliance with this definition has been held suffi- cient to prevent its breach. Nor upon this side of the Atlantic is there any material difference of opinion as to this, wherever this definition of the covenant has been recognized. Thus it is held that the covenant is broken if the grantor has only an estate tail ; ^ or if tliere be an outstanding estate for life ; ^ or, under certain circumstances, a term for years ; ^ a paramount right in another to divert a natural spring,* or to prevent the grantee from damming water to a certain height when that right is reserved to him by his deed ; ^ so where one of two tenants in common purports to convey the entire estate with a covenant of seisin, the latter is broken as to one-half of the estate conveyed ; ^ and, a fortiori, where one having covenanted that he was seised of an undivided portion of the premises, it turned out that a partition had ' Comstook V. Comstock, 23 Conn. 352. 2 Mills u. Catlin, 22 Vermont, 106 ; Wilder v. Ireland, 8 Jones' Law (N. C), 90. ^ Van Wagner v. Van Nostrand, 19 Iowa, 422 ; that is to say, such a term of years as should properly defeat the " assurance that the grantor has the very estate, in quantity and quality which he purports to convey." As a general rule, however, no one selling real estate in a city would dream that his covenant was broken by there being a tenant from year to year in possession. Usually, the rent is apportioned, as are the taxes, interest on incumbrances, &c., up to the date of the conveyance, and the tenant attorns to the purchaser. Such a tenancy for years is obviously no breach of the covenant for seisin (Liudley v. Dakin, 13 Indiana, 389) , nor, in most cases, of the covenant against incumbrances ; see infra, Ch. V. ■* Clark V. Conroe, 38 Vermont, 471, where the question was carefully con- sidered. The declaration set forth that the defendant, as administrator, conveyed certain premises to the plaintiff with covenants for seisin and of warranty, " on which premises there was situated at the date of the conveyance a certain natural spring of water, essential to the use and occupation of said premises." The right to use this spring had, however, been previously conveyed by the defendant's testator, which was assigned as a breach of the above covenants, to which the defendant demurred. The court held that the spring formed part of the land conveyed to the plaintilF, and as the defendant had no title to the same, his cove- nant for seisin was broken. The existence of the paramount title to the spring was also held to be a breach of the covenant of warranty ; as to this see infra, Ch. VIII. s Walker v. Wilson, 13 Wis. 522 ; Hall v. Gale, 14 id. 55 ; s. c. 20 id. 293 ; Traster v. Snelson, 29 Indiana, 96. " Downer v. Smith, 38 Vermont, 464. THE COVENANT FOR SEISIN. 79 been made.' So, a breach will occur if no such land exist as that pur- ported 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 prop- erly appurtenant to it and pass by a conveyance of the freehold. Thus it has been held to be broken where the grantor had before the conveyance sold to another a quantity of rails which had. been erected into a fence, and thereby become a fixture ; and the same doctrine has been applied generally to buildings or other fixtures upon the land, the right to remove which was vested in other par- ties, and did not pass to the purchaser by the conveyance.^ In a recent case in New York, it was held that where a lot had been conveyed without mention of the buildings erected thereon, only so much of the latter as was upon the land .conveyed passed as part of the freehold, and the right of third parties to remove other portions ©f the house projecting over the adjoining land was held not to be a breach of the grantor's covenant for seisin.* And, obviously, this decision does not conflict with the preceding class of cases, but decides merely that improvements not upon the lot itself do not pass by operation of law by a conveyance of the lot. On the other hand, it seems settled that the covenant, as gen- erally expressed in its short form, is not broken by the existence of such easements or incumbrances as do not affect the technical ' Morrison v. MoArthur, 43 Maine, 567. ^ Bacon v. Lincoln, 4 Cush. (Mass.) 212 ; Basford v. Pearson, 9 Allen (Mass.), 389. ^ Powers V. Dennison, 30 Vermont, 7.52 ; Van Wagner v. Van Nostrand, 19 Iowa, 427; We.st v. Stewart, 7 Barr (Pa.), 122; s. c. but not s. P., 2 Harris (Pa.), 336 ; in this case the covenant was one of warranty, but the removal of the buildings was held to be an eviction. * Burke v. Nichols, 2 Keyes (N. Y.), 671. " The defendant," said the court, ' ' is correct in claiming that under his deed from the plaintiff his rights in respect to the dwelling-house and fence on the lot thereby conveyed are the same as if such structures had been specifically mentioned in the grant. If the grantor had title to them, it passed by the deed ; if he had not title to such structures or any part of them, his covenant of seisin was broken to that extent, and the defendant has a remedy for the breach. But the rights of the defendant thus acquired do not extend to such parts of the house and fence as are attached to and rest upon the soil of the adjoining lot. Those structures, by the operation of the very principle upon which the defendant relies, are a part of the land on which they stand ; and as the adjoining lot is not covered by the deed, the defendant has no claim against the plaintiff by reason of failure of title to that portion of the house and fence which stands thereon." 80 THE COVENANT FOR SEISIN. seisin of the purchaser. Tlius the existence of a highway over part of the land conveyed is no breach of this covenant/ since it is considered that although the public may have a right of passage over the way, the freehold technically remains in the owner of the soil.2 So with respect to a judgment, a mortgage, or a right of dower ; however these may operate as a breach of the covenant against incumbrances, they do not affect the covenant for seisin,^ since a judgment or a right of dower do not divest the technical title or seisin of the grantor ; and a mortgage, although in strict- ness it purports to pass the legal title, yet is almost universally regarded at the present day as a mere security for the payment of the debt.* If, however, the mortgagee had entered under his mortgage (as is allowed by local statutes in many States), the covenant would, it is supposed, be held to be broken. There have been cases which have held that no breach of the covenant will be caused by the happening, or possibility of happening, of future contingent events which might affect the title. Thus, where the alleged breach was that one of the parties to a deed was a minor, it was held that the title having passed to her grantee,^ there could be no breach of the covenant until disaffirmance by her after majority, until slie entered, or in some legal mode avoided the conveyance.'' So where the grantor was a sheriff's vendee under judgment of foreclosure of a mortgage, it was held that a subsequent order of the court ' Whitbeck v. Cooke, 15 Johns. (N. Y.) 483 ; Vaughn v. Stuzaker, 16 Indi- ana, 840, citing the text. As to whether a pubUo road is a breach of the cove- nant against incumbrances, see the ensuing chapter. ^ 2 Inst. 705 ; Goodtitle v. Alker, 1 Burrow, 133 ; Cortelyou v. Van Brundt, 2 Johns. (N. Y.) 357 ; Jackson v. Hathaway, 15 id. 449 ; Lewis v. Jones, 1 Barr (Pa.), 386; Peck ij. Smith, 1 Conn. 103-147. 2 Tuite V. Miller, 10 Ohio, 383 ; Fitzhugh v. Croghan, 2 J. J. Marshall (Ky.), 430 ; Sedgwick v. HoUenback, 7 Johns. 380 ; Massey v. Craine, 1 McCord (S. C), 489 ; Lewis v. Lewis, 5 Richardson's Law R. (S. C.) 12. ■■ The passage in the text was cited in the recent case of Reasoneru. Edmund- son, 5 Indiana, 394, where it was held that the mortgagee not having entered, the covenant for seisin was not broken. • ° See, as to this, Bool v. Mix, 17 Wendell (N. Y.), 132. " Van Nostrand v. Wright, Lalor's Supplement to Hill & Denio's R. (N. Y.) 260. The minority of the grantor is, however, a. breach of the covenant for good right to convey ; Nash v. Ashton, T. Jones, 195. THE COVENANT FOE SEISIN. 81 setting aside the sale and opening the judgment, did not work a breach of the covenant for seisin. ^ But it may be observed of these cases that if, as the weight of authority proves, a covenant for seisin is satisfied only by the transfer of an indefeasible title, it is technically brol^en as soon as it is made if the title be from any cause defeasible, and the grantee's difficulty would seem to be less as to the breach of the covenant than the right to recover at that time more than nominal damages.^ An analogy may be found in -the rule with respect to chattels. In the sale of these a warranty of title is implied by the civil and the common law. But a present possession is all that can ever be transferred. Yet a subsequent loss of possession by a title para- mount will be a, breach of this warranty, because the vendor is understood to have transferred a possession which can be lawfully retained. ' Coit V. MoReynolds, 2 Robertson (N. Y.), 6.58. " The covenantor," said the court, " either was seised or he was not, at the time he made his covenant. If he was seised, his covenant was not broken at the time, and it would not be broken afterwards. Suppose a man conveys his property to an innocent party in fraud of his creditors, and the court should set aside the deed (if a court could be found to do such a thing) , would an action lie by the grantee for a breach of the covenant for seisin ? I think not." The Massachusetts cases already referred to {supra, p. 66) were also cited as proving that " a mere de- feasible title will not work a breach of the covenant for seisin ; " but this is not the law in New York, in the sense in which those cases maintain this doctrine. Pollard V. Dwight, 4 Cranch, 421, has been thought to decide that if a vendor being in possession under a patent convey the land with a covenant of seisin, he is not liable if the title should fail by reason of the patent being voidable, but, on examination, the case will show that the question was merely whether an unsworn surveyor was a competent witness to prove that the premises conveyed were included within an alleged prior patent. " The prior claims," said Mar- shall, C. J., " rest upon the oath of the witness. If those claims were valid, their validity was established by his testimony, which cannot be tolerated on any legal principle. If they were mere claims, not good titles, they ought not to have been stated to the jury." It is apprehended that if the identity of the land had been properly established, there would have been no question as to the breach ; Fitch V. Baldwin, 17 Johns. 161 ; though in that case the purchaser was held to be estopped by being himself in possession under a valid patent. "It never can be permitted to a person," said the court, " to accept a deed with cove- nants of seisin, and then turn round upon his grantor and allege that his covenant is broken, for that at the time he accepted the deed he himself was seised of the premises." ' As to this see infra, Ch. IX. 6 82 THE COVENANT FOR SEISIN. As respects the pleadings in an action upon this covenant, it has been settled from an early period that in assigning the breach of the covenants for seisin and of good right to convey, it is un- necessary to do more than negative the words of the covenant generally. In Bradshaw's case,^ which was an action brought on a covenant in a lease that the lessor had full power to convey, it was held " to lie more properly in the knowledge of the lessor what estate he himself has in the land which he demises, than the lessee, who is a stranger to it ; and therefore the defendant ought to show what estate he had in the land at the time of the demise made, by which it might appear to the court that he had full power and lawful authority to demise it." In a later case,^ where the covenant was contained in a conveyance of a freehold, it was en- deavored, on demurrer, to distinguish it from that just cited, " because the plaintiff ought to have shown of what estate the defendant was seised, in regard he had departed with all his writ- ings concerning the land, in presumption of law, and therefore the plaintiif well knew the title ; and it is not like to Bradshaw's case, because there the covenant was with the lessee for years, who had not the writings," but this distinction was not recognized, and the rule in Bradshaw's case has since been consistently adhered to, and applied as well to covenants in a conveyance of a freehold as of a leasehold estate.^ ' 9 Coke, 60. ' Glinnister v. Aiidley, T. Raymond, 14. ' Muscat V. Ballet, Cro. Jac. 369 ; 2 Saund. 181 6, note 10; Bender v. From- berger, 4 Dall. 436 ; Clarke v. MoAnulty, 3 Serg. & Rawle, 372 ; Blanchard v. Hoxie, 34 Maine, 376; Marston v. Hobbs, 2 Mass. 433; Wait v. Maxwell, 4 Pick. 88; Bacon v. Lincoln, 4 Cusbing (Mass.), 212; Floom u. Beard, 8 Black- ford (Ind.), 76 ; Abbott v. Allen, 14 Johnson, 248 ; Pollard v. Dwight, 4 Cranch (U. S.), 4-30; Daval v. Craig, 2 Wheat. (U. S.) 62, note; Mackey v. Collins, 2 Nott & McCord (S. C), 186; Lot v. Thomas, Pennington (N. J.), 300; Rickert v. Snyder, 9 Wend. 421 ; Traster v. Snelson, 29 Indiana, 96. It seems, however, to have been otherwise formerly in Ohio, under a local statute which has since been repealed; see Robinson v. Neil, 3 Ohio, 626. The early case to the same effect in Connecticut, of Wilford v. Rose, 2 Root, 14, must probably have proceeded on some local statute, as otherwise it is opposed to the current of authority. Care must be taken to distinguish these cases from those in which the breach of the covenant is set up as a defence to payment of the pur- chase-money, where the defendant, the purchaser, having pleaded the plaintiflf's covenant for seisin, and assigned the breach by negativing the words of the cov- enant, judgment has, upon demurrer, been given for the plaintiff. This is upon the ground that the mere absence of title will not of itself, in general, be a good defence to payment of purchase-money. See infra, Oh. XIV. THE COVENANT FOB SEISIN. 83 As a consequence of this, it is well settled that in an action on the covenant for seisin it is unnecessary either to aver an eviction in the declaration or lay any special damage.^ A distinction thus exists, as respects the pleadings, between the covenant for seisin (with which may be classed the covenant for right to convey) and the other covenants for title, as, in suing upon the latter, it seems in the first place generally necessary that the incumbrance or par- amount title should be particularly specified in the declaration, as well, perhaps, as the results which it has caused.^ Nor is it necessary that in a suit upon the covenant for seisin the plaintiff's subsequent pleadings should set forth the particulars of the paramount title. Although in an early case in Massachu- setts,^ Parsons, C. J., in stating some general propositions, re- marked that " the defendant in his bar should regularly maintain his seisin, and then the plaintiff in his replication should aver who in fact was seised," yet, as was said in a subsequent decision in New York,* that case presented a question of evidence merely, and not a question of pleading. " All that is incumbent on the plain- tiff," said the court, " is to negate the title of the defendant, who pleads affirmatively and generally that he had a good title, and the general replication in this case is sufficient. This differs from the class of cases where the plea avers a general performance of the covenant ; and then the plaintiff is required in his replication to specify wherein the breach has been committed ; for instance, in an action of covenant for not repairing a leased messuage, the declaration may assign the breach generally that the covenantor did not repair, &c. ; the defendant may then plead generally a per- formance of his covenant, and the plaintiff then is required in his replication to specify wherein the repairs have been omitted, in order that the defendant may be apprised, with reasonable cer- tainty, what is the object of the suit. The reasons for requiring such a special replication are, first, that the subject to which the covenants relate is perfectly known to the party complaining of the breach ; and, second, the suit has a more general aspect, and the subject of the breach is multifarious. Therefore, the law in 1 Abbott V. Allen, 14 Johns. (N. Y.) 248 ; Bird v. Smith, 3 English (Ark.), 368. « See infra, Ch. IV., VI., and VIII. = Marston v. Hobbs, 2 Mass. 433. * Abbott V. Allen, supra, per Piatt, J. 84 THE COVENANT FOR SEISIN. such case most reasonably requires the replication to specify that a chimney has fallen down, that the windows are broken, and that the barn is unroofed, or that the fences are prostrate, &c. In this case, the point in controversy is single and abstract. The question is, merely, whether the defendants had an indefeasible title, and the only evidence in relation to that title may be exclusively in the power of the defendants." ^ As respects the burden of proof, it is settled that the rule as to the evidence corresponds with tlie rule as to the pleadings, and the knowledge of the state of the title being supposed to rest with the defendant, he is bound in the first instance to maintain the affirm- ative of his covenant. It is considered that until the grantor dis- closes his title, the plaintiff holds the negative merely, and is not bound to aver or prove any fact in regard to the outstanding title.^ Hence, if upon the trial of the issue neither party offers any evi- dence, the plaintiff is entitled to judgment.^ ^ It is, of course, hardly necessary to mention tliat in suing on the covenants for title, the plaintiff may recover on the count that is well laid, although the others maybe defective; Blanchard v. Hoxie, 34 Maine, 376. And in Brady V. Spruck, 27 Illinois, 480, where the declaration contained one count only on the covenants for seisin, for right to convey and of warranty, and the breach was assigned by negativing the words of each covenant, a demurrer for duplicity was overruled. ^ Abbott V. Allen, 14 Johnson (N. Y.), 253. " The grantor has no right to shift the responsibility from his own shoulders by imposing it on the grantee to aver and prove at his peril any particular outstanding title." ^ Potter V. Kitchen, o Bosworth (N. Y.), 566, where the subject was elabo- rately considered; Marston v. Hobbs, 2 Mass. 437; Swafford v. Whipple, 3 G. Green (Iowa), 264; Schofield v. Iowa Co., 32 Iowa, 321; Baker v. Hunt, 40 Illinois, 266 ; Mechlem v. Blake, 16 Wis. 102 ; Beckmann v. Henn, 17 id. 412. " It is a well settled rule of evidence," said the court, in Swafford v. Whipple, supra, " that the party who alleges shall prove the alErmative of any proposition. Ordinarily the issue lies upon the plaintiff, and the onus probaiidi is on him to establish what he affirms. But it frequently happens that in making up an issue the defendant assumes the aiBrmatlve proposition, or confesses and seeks to avoid the action, and would fail if no evidence in avoidance should be adduced by him. In such event the proof is incumbent on the defendant, as the party who would fail, if no evidence should be given on either side, or as the party who has thrown a negative proposition on the plaintiff, which might be difficult, and perhaps impossible for him to prove, and in relation to which the defendant has all the evidence in his possession. Hence it is laid down that the onus probandi lies vipon 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 ii, fancy, or THE COVENANT FOR SEISIN. 85 The consideration of the measure of damages will be found in a subsequent chapter.^ a license, he must prove it. So if the defendant plead freehold in himself in an action of trespass quare clausum fregit; 1 Stark. Ev. 418-423. In Ayer v. Austin, 6 Pick. 12.5, the same rule is recognized as applicable to all cases when by the pleadings nothing essential to the action is required of the plaintiff, and ■when the finding for the defendant depends upon affirmative proof from him. In the present case there was but a single point in controversy before the jury. The defendant pleaded that he was lawfully seised of the premises. Upon this question he assumed the affirmative ; it was for his interest to prove it, as it would operate a complete bar to the action. The nature of the title to the prem- ises may have rendered it extremely difficult, or even impossible for the plaintiff to prove the negative averment, as the only evidence in relation to the title may have been exclusively under the control of the defendant. If he had title at the time the deed declared on was executed, he could easily have shown it; and if he had no title, the covenant was broken, regardless of any third person who may have had the title. We conclude then that the court did not err in deciding that the onus probandi lay upon the defendant." And this was affirmed in the very recent case of Schofield v. Iowa Co., supra, where the plaintiff having alleged that the defendant " was not the true owner of the premises," and the latter having denied " that he was not the true owner of said land," no evidence was offijred on either side except the deed from the plaintiff to the defendant, and the court held that the defendant's denial amounted to an averment of seisin, and that in the absence of all proof the plaintiff was entitled to judgment. It is true that in some cases the plaintiff, after averring generally that the defendant was not seised, has assumed the burden of proof and gone on with his evidence to show the defective title which he had received (Pollard v. Dwight, 4 Cranch (U. S.), 431 ; Bacon v. Lincoln, 4 Cush. (IMass.) 212) ; but this does not affect the rule. In Kennedy v. Newman, 1 Sand. S. C. (N. Y.) 187, the syllabus of the case is, "In an action for the breach of the covenant for seisin in a deed, on the ground of an assessment of sale by the city authorities for providing lamp-posts and lamps, the plaintiff must prove a valid assessment and sale with the same precision as if he were the purchaser at the sale, and enforcing his title under it by ejectment ; " but this is not borne out by the case itself. The suit was upon the covenants for seisin, of warranty and against incumbrances, and the decla- ration averred the assessment and sale, and that the plaintiff had effected a pur- chase of the outstanding title, and been thereupon obliged to pay a certain amount, to which the defendant pleaded that there was no such valid assessment. Here the affirmative of the issue being upon the plaintiff, he was obviously non- suited, because he did not, step by step, prove the regularity of the proceedings under the ministerial jurisdiction by which the title had been divested. In the former editions of this work, this subject was thus considered: "As respects the burden of proof, it is well settled that in an action upon the cove- Infra, Ch. IX. 86 THE COVENANT FOE SEISIN. nants against incumbrances for quiet enjoyment or of warranty, it is cast upon the plaintiff, who is in the first instance obliged to make out the paramount title with all the particularity of a plaintiff in ejectment. It is doubtful how far such a rule is applicable to actions on the covenant for seisin. On the one hand, it would seem that the rule as to the evidence should correspond with the rule as to the pleadings, and that the knowledge of the state of the title being supposed to rest with the defendant, he is bound in the first instance to maintain the afiirma- tive of his covenant. On the other hand, it would seem contrary to general principles that a vendor who had given a covenant for seisin could be called upon at any time after the execution of the deed, and at the caprice of his covenantee, to make out afiirmatively a perfect title, without a defect or some loss having been shown in the first instance. It is probable that the true rule is to be found between these extremes, and that while a plaintiff is not obliged to prove the defect with the particularity required in suing on the other covenants, he cannot throw entirely upon his vendor the burden of maintaining the perfection of the title he has conveyed." These remarks (which it is now conceived do not cor- rectly represent the law) were misquoted by counsel and by the court, in Baker V. Hunt, 40 Illinois, 266, supra. THE COVENANT FOR RIGHT TO CONVEY. 87 CHAPTER IV. THE COVENANT FOE RIGHT TO CONVEY.^ The covenant for right to convey has been sometimes said to be synonymous with the covenant for seisin. As the greater always includes the less, the existence of an estate in fee-simple of course implies the right to convey it ; ^ but the converse is far from true, and until very lately it was the practice in England, for reasons stated in a preceding chapter,^ upon the purchase of an estate, to have the same conveyed to such uses as the purchaser should appoint, and in default thereof, to the use of himself and his heirs.* And no doubt as a consequence of this practice, the covenant for right to convey has, in England, almost superseded the covenant for seisin.^ And, of course, the former covenant is the appropriate one in every case in which the conveyance is made by virtue of a power.^ In some parts of this country there would appear to be an especial reason for the insertion of the covenant for right to con- vey. For, as has been remarked,^ in a few States the covenant for seisin is answered by the transfer to the purchaser of an actual thougli a tortious seisin, irrespective of the right by which the property is held ; and where the covenant for seisin is thus limited in its application to the mere transfer of the seisin, in its narrowest signification, there would seem every reason why a purchaser should protect himself by a covenant which refers exclusively to the right, or, as it is popularly called, the title. But it is somewhat remarkable that in the very case in which ' For the form of this covenant, see Ch. II., pp. 25, 28. ^ With, perhaps, the single exception of the conveyance by a minor, who, though seised in fee, has no right to convey, save subject to disaffirmance by him after majority; Nash v. Ashton, T. Jones, 196; supra, p. 80. ' Supra, p. 24. * See, for example, such a deed in the recent case of Thackeray v. Wood, 5 Best & Smith (Q. B.), 325. ' 1 Hughes' Practice of Sales of Real Property, 411. • Sugden on Vendors (13th ed.), 462 ; Dart on Vendors (4th ed.), 499. ' Supra, p. 56 ei seq. 00 THE COVENANT FOR EIGHT TO CONVEY. the covenant foi- right to convey would thus seem not to be merely synonymous with the covenant for seisin, and thus superfluous, it should have been held to have no greater or other scope. The reason for this course of decision has, in a previous chapter,^ been attempted to be shown to have arisen from the covenants for seisin and for right to convey being considered as assurances to the pur- chaser that the vendor had such a present seisin as would enable him, without violating the champerty acts, to transfer the estate, and, consequently, as having a good right to convey it under those acts. It has, indeed, been held, in an old case, that the latter cov- enant related to the capacity of the grantor to convey, so that where a husband and wife, seised in her right, conveyed to a pur- chaser, with the husband's covenant that they had good right to assure the lands, the incapacity of the wife to convey by reason of her infancy was held to be a manifest breach .^ But it is equally clear that it was considered also as relating to the title ; and where the covenant is construed according to the natural interpretation of its words, it must be broken by the absence in the vendor of the right to the premises, — the^MS, as distinguished from the seisina.'^ Apart from this, most of what has been said in tlie preceding chapter as to the covenant for seisin applies equally to that for right to convey. Both, according to the weight of American au- thority, are held to be broken as soon as made, and, therefore, incapable of being taken advantage of by an heir or an assignee.- Both are governed by the same rules as to the pleadings ; ^ and the measure of damages is the same as to both.^ ' Supra, p. 66 et seq. " Nash «. Ashton, Skinner, 42; s. c. T. Jones, 195. ' Thus in Triplett v. Gill, 7 J. J. Marsh. (Ky.) 432, where the covenants were of good right to convey and of warranty, it was held that the former "imported only that the grantor had a right to convey, and did not imply that he had possession. Such a covenant was not broken by an adversary possession merely, but was broken only by a want of legal title in the grantor, such as he had a right to sell and convey." It may, moreover, be remarked of this case, that, as the champerty statute was not passed till after the execution of the deed, the construction of the covenant did not come within that referred to above. ■■ Chapman v. liolmes, 6 Halsted (N. J,), 20. See Ch. VIII. ' Jenkins, 305, pi. 79. For a very recent case, the student may be referred to the pleadings in Thackeray v. Wood, 5 Best c& Smith (Q. B.), 325 ; affirmed on appeal, 6 id. 766, cited infra, Ch. VI. " Bickford v. Page, 2 Mass. 465 ; Dunnica v. Sharp, 7 Missouri, 71 ; Willson 1). Willson, 6 Foster (N. H.), 234. THE COVENANT AGAINST INCUMBRANCES. CHAPTER V. THE COVENANT AGAINST INCUMBRANCES.^ In England, this covenant is frequently styled " the covenant for indemnity against incumbrances," and its place there is almost invariably after that for quiet enjoyment, to which, indeed, it is a sort of supplement, for it is connected therewith by the words " and that (i.e., the quiet enjoyment) free and clear of all incum- brances," &c.^ Of course, a covenant thus commencing with the words, " and that free," &c., depends for its construction upon the preceding covenant, of which it thus forms a part.^ Now, nothing is better settled, both in England and America, than that the covenant for quiet enjoyment (which is, that the grantee shall peaceably enjoy the premises) is eminently a cove- nant in futuro, — until breach, it runs with the land;" it is not broken by the mere existence of an incumbrance or defect of title ; its breach depends upon the disturbance or damage which that incumbrance or defect may thereafter cause. On the other hand, it is settled by a large class of cases on this side of the Atlantic that the covenant against incumbrances, as here generally ex- pressed, standing by itself as a separate and independent covenant, and generally couched in the short form, " and that the premises are free and clear of all incumbrance," is a covenant in prcesenti; it is broken as soon as made by the mere existence of an incum- brance, without regard to future or ultimate disturbance or dam- age ; and being so, it does not run with the land. When, however, ' For the different forms of this covenant, see Ch. II., pp. 25, 26 n, 28. " See supra, p. 26. ^ " Unconnected with any other clause," says Piatt, " it will be both ungram- matical and senseless. The introductory words plainly prove that it must be construed in connection with that paragraph by which it is immediately preceded ; that clause being the covenant for quiet enjoyment ; " Piatt on Covenants, 331. 90 THE COVENANT AGAINST INCUMBRANCES. the covenant against incumbrances, instead of thus standing by itself, is linked or coupled to the covenant for quiet enjoyment, as is almost always the case in England and sometimes here, the distinction whether the former covenant is a covenant wi prcesenti or a covenant in futuro may become important. The practical consequences of the distinction are threefold : first, as to the parties to the action on the covenant ; secondly, as to the pleadings ; and thirdly, as to tlie measure of damages. All of these will be more fully considered hereafter. Suffice it here to say that, as to the parties to the action, if the covenant be one in prcesenti, it must be sued upon by the covenantee or his personal representatives ; an heir, a devisee or an assignee cannot sue in his own name. As to the pleadings, if a covenant in futuro, it is not sufficient merely to negative the words of the covenant. And as to the measure of damages, if a covenant in futuro, the tech- nical damage corresponds with the actual loss ; if a covenant in prcesenti, and there has been no present actual loss, the damages are but nominal. Such a distinction is of less consequence in England than in this country. There all the covenants for title — that for seisin as that for quiet enjoyment — run with the land and enure to the benefit of the heir, the devisee or the assignee. Here, in nearly every State, the covenant for seisin is held to be broken as soon as made ; and although doubts have at times been expressed whether this tecluiical rule should apply to the covenant against incumbrances, which, it has been said, partakes more of the character of a cove- nant of indemnity (and which certainly does so as to the measure of damages), yet the general current of American authority holds it to be, equally with the covenant for seisin, a covenant in prcesenti, and broken as soon as made. But it has been generally considered, and upon both sides of the Atlantic, that when the covenant against incumbrances is coupled with that for quiet enjoyment (as in the English form just given), it is to all intents and for all purposes a covenant in futuro ; and although it has been urged ^ that it should receive a double con- struction, — one which would give it the benefit of a covenant against incum'brances as respects the facts which would constitute ' Particularly in the argument of counsel in the recent case of Greene ». Creighton, 7 Khode Island, 1. THE COVENANT AGAINST INCUMBRANCES. 91 a breach, and the other which would give it the benefit of a cove- nant for quiet enjoyment as respects capacity for running with the land, — yet such a construction has never been practically adopted.'' ' This distinction as to the form of the covenant was noticed in Vane v. Lord Barnard, Gilbert's Eq. R. 6 ; Hutchins v. Moody, 30 Vermont, 658 ; Grice v. Scarborough, 2 Spears (S. C), 652; Jeter v. Glenn, 9 Richardson's Law E. (S. C.) 377; Carter v. Denman, 3 Zabriskie (N. J.), 273. Piatt regards the covenant against incumbrances as entirely one in fiduro, his chapter on the subject being entitled, "The covenant of indemnity against incumbrances" (Piatt on Covenants, c. 11.). In the argument noticed supra in Greene v. Creighton, the counsel considered that the cases, and particularly that of Vane V. Lord Barnard, had been misunderstood, and that Griffith u. Harrison, 4 Modern, 249, and Hall v. Dean, 18 Johnson, 105, were direct authorities for the construction here contended for. In Griffith v. Harrison, as reported in^4 Modern, the plaintiff declared on a covenant that he " should quietly enjoy free and clear of and from all arrears of rent," and assigned as a breach that the rent was in arrear and not paid. The defendant pleaded that he had left so much money with the plaintiff eo inteniione to pay it to the lessor in discharge of what rent was in arrear, which plea was held good on demurrer. If this report of the case were correct, it would certainly be an authority for the construction contended for ; if the covenant had been considered strictly as a covenant for quiet enjoy- ment, the mere fact that the rent was in arrear and not paid would, according to all the authorities, have been no breach, and the declaration would have been held bad on the application of the familiar principle in pleading, that on demurrer the court considers the whole record and gives judgment against him who makes the first slip in the pleadings. On examining the report in 1 Salkeld, 197, and Skin- ner, 397, it will be found that Lord Holt decided the case upon that very ground ; the plea was good enough, "but the court took exception to the assignment of the breach, for that the plaintiff did not show a disturbance in the enjoyment, or other special damnification, without which, the rent heing beMnd is not a breach of the covenant." Hall v. Dean, supra, did indeed decide that the assignment of the breach of such a covenant by alleging that the plaintiff " had been forced to pay off the incumbrance," was good on demurrer; but the decision, if con- trary to Griffith V. Harrison, must yield to it in authority. Although in Carter v. Denman, supra, this case was cited and apparently approved, yet the remarks of the court were but dicta. As to the case of Vane v. Lord Barnard, it has been often misunderstood, and may be noticed in this connection^ It should always be observed of this case that it was neither an action on the covenants for title contained in a conveyance of land, nor a bill to enforce specific performance of such covenants. It was a bill to enforce specific performance of an executory contract. The case was thus : On the marriage of Lord Barnard's daughter, the father of the intended husband covenanted to settle lands free from incum- brances upon trustees, " according to the usual limitations in marriage settle- ments," and Lord Barnard covenanted to settle certain lands by name upon trustees to like uses, but with these words : " that in such settlement there shall 92 THE COVENANT AGAINST INCUMBRANCES. A distinction, moreover, must here be noticed between a cove- nant that the premises are free from incumbrances, or that the be covenants that he is seised in fee, has good right to convey, and that the trustees shall enjoy free from incumbrances." No settlement had been executed in pursuance of these articles. It happened that, upon Lord Barnard's own marriage, these same lands had been charged with £6,500, to be paid to such of his daughters as should be living at his death and be unprovided for ; and " the bill was to have a specific performance of the articles by my lord's paying off, or otherwise giving collateral security against this contingent portion of £6, .500, he having then one daughter about sixteen years old. It was urged for the plaintiff that 'twas usual for this court to decree a specific performance of articles and covenants, and not to depend only upon the uncertain reparation by damages, which the personal estate may perhaps not be able to satisfy ; and this was not controverted, where 'twas possible to be done. But the Lord Chancellor held that here was not any covenant that the lands were free from incumbrances, but only a covenant that he would in the settlement (which was after to be executed) covenant for that purpose ; so that the parties seemed to be satisfied with a bare covenant only, and the marriage articles were only a covenant to covenant ; so that inserting that covenant in the future settlement was a specific performance of those articles, and was all that my lord agreed to do, or that the plaintiff by his bill desired to have. " The Lord Chancellor said, notice or no notice of this incumbrance was very material in this case ; for where a covenant is in this manner, if any incumbrance is discovered between the executing the articles and the sealing the deed of set- tlement, whereof the party had no notice, that incumbrance shall be discharged, even before sealing the deed of settlement, both upon account of the fraud in concealing such incumbrance, and because it would be needless to enter into a covenant which, before entering into, is already known to be broke ; but against all other incumbrances discovered afterwards, there is the party's covenant only. Now where you have notice of an incumbrance before executing the articles, 'tis a stronger case than the last, for you consent with your eyes open to accept the party's covenant against an incumbrance you were aware of, and when you have chosen your method of security yourself, this court will give no other, nor make the party do a further act than by the articles he has agreed to do ; and the rather in this case, for that the portion is not a certain incumbrance, but a contingent one ; and therefore 'tis reasonable to suppose that my Lord Barnard would not be compelled to charge his remaining estate, at all hazards, to secure against an incumbrance that was but contingent, to the prejudice of his eldest son, especially when he had provided for the younger son so plentifully ; and decreed that my Lord Barnard should execute a deed of settlement, with covenants exactly pur- suant to the articles only ; but because the estate was subject to a present charge, viz., the payment of a yearly sum for the daughter's maintenance from her birth, therefore that the Lord Barnard should pay and discharge all arrears of that and the growing annuity, as it shall arise, taking acquittances from his daughter, and leaving them with the plaintiff for his security. " 'Twas strongly urged by Mr. Vernon that, supposing these articles were but THE COVENANT AGAINST INCUMSEANCES. 93 purchaser shall enjoy them free from incumbrances, and a cove- nant to discharge of incumbrances, or one similarly framed, whose object is the accomplishment of a thing certain at a certain time. The distinction is that where the covenant is simply one of indem- nity, no right of action accrues under it unless some damage is shown to have been inflicted. But where the covenant is to do a particular thing in exoneration of the covenantee, or to indemnify him against liability, the right of action is complete as soon as a covenant to covenant, yet as soon as the articles were performed by sealing the deed of settlement, then they might come the next day and exhibit their bill to enforce an execution specifically of the covenant in such deed of settlement; and why may not the court decree that to be done now, as well as that which, after performance of this decree, they will immediately decree upon a new bill ? The Lord Chancellor said, ' In this case, they could not, for the incumbrance was not necessary, but contingent ; and if you brought an action at law upon such a covenant, you should not recover twopence damages, till a breach, which possibly may never happen. Besides, the covenant on the deed of settlement is not to be that the estate is free from incumbrances, but that the trustees shall enjoy free from incumbrances ; which, so long as they do, the covenant is not broke. And, it seems, the portion being contingent, and not certain, was the reason of this part of the decree ; because 'tis plain, by the latter part of the decree, where the incumbrance was certain (viz., the payment of a yearly sum), the Lord Barnard was decreed immediately to discharge it ; tho' by the articles he did but covenant to covenant, as is aforesaid, and there's no other difference between these two matters.' " Here it will be noticed that the father of the husband covenanted to settle some lands free from incumbrances. Lord Barnard's covenant was different. He covenanted to settle certain specific lands which were subject to a known incum- brance, with a covenant to be contained in the settlement that the trustee should enjoy them free from incumbrances. When the executory articles came to be consummated, it was " decreed that Lord Barnard should execute a deed of set- tlement with covenants exactly pursuant to the articles only," since such, and such only, was the true meaning of the articles on Lord Barnard's part to be performed ; in other words, the trustees were, by the express terms of the arti- cles, to take his personal covenant against a known possible contingency. But, as respected the certain present charge, — the yearly sura for the daughter's maintenance, — the agreement stood upon a different footing, and was subject to the usual law of vendor and purchaser which gives the latter a right to a title, free from all incumbrances (see infra, Ch. XIV.) ; and hence it was that " Lord Barnard was decreed immediately to discharge it." Nor must this case be con- founded with some others (generally since overruled), which have decided that, in genei-al, a contract "to convey lands with covenants for title" will be satisfied by the conveyance of a defective title, with covenants against it, in the deed. Such is not the law, unless, as in this very case of Vane v. Lord Barnard, such was the express contract between the parties ; see supra, p. 40. 94 THE COVENANT AGAINST INCUMBRANCES. there is a failure to perform or the liability has been incurred. Thus, in Lethbridge v. Mytton,' which was an action by the trustees of the defendant's wife, on a covenant to pay off, within a twelvemonth, certain incumbrances to the amount of £19,000, no special damage was laid or proved, and judgment having gone by default, the sheriff's jury gave nominal damages ; but this was set aside by the court of King's Bench, Lord Tenterden saying, " if the plaintiffs are only to recover a shilling damages, the covenant becomes of no value;" and Parke, J., added, "the trustees were entitled to have this estate unincumbered at the end of a year from the marriage ; how could that be enforced, unless they could recover the whole amount of the incumbrance, in an action on the covenant ? " And the distinction is perfectly settled on both sides of the Atlantic, though, at times, with some variety of de- cision as to the construction of the contract in the particular In considering the question, what will cause a breach of the cove- nant against incumbrances, or, in other words, what is " an in- cumbrance " within the true intent and meaning of the covenant, an apparent difficulty will be encountered such as is not pre- sented in the other covenants. It arises, in part, from the fact that the word incumbrance has no technical meaning. It was not one of the " terms of the law," and no definition of it will be found in the older books. "Within the present century, an incum- brance has been defined to be " every right to or interest in the land, which may subsist in third persons, to the diminution of the > 2 Barn. & Adolph. 772. '■' Carr v. Roberts, 5 Barn. & Adolph. 78 ; Booth v. Starr, 1 Conn. 249 ; Churchill u. Hunt, 3 Denio (N. Y.), 321; Gardner v. Niles, 16 Maine, 280; Jennings v. Norton, 35 id. 309 ; Lathrop v. Atwood, 21 Conn. 123 ; Dorsey v. Dashiell, 1 Maryland, 204 ; Hogan's Executors v. Calvert, 21 Alabama, 199 ; and see note to Smith u. Howell, 6 Exch. 739 ; Ardesco Oil Co. v. N. A. Min- *ing Co., 16 P. F. Smith (Pa.), 381. Fisher v. Worrall, 5 Watts & Serg. (Pa.) 478, is an obvious exception to these cases, it being there held that although a joint owner who covenanted to procure the joinder of the other owner in a deed conveying the land was liable in damages for a failure to do so, yet their amount was not necessarily measured by the consideration. Mr. Sedgwick, in his Treatise on the Measure of Damages, p. 188, has seriously questioned the correctness of the decision in Lethbridge v. Mvtton, but apparently without sufficient reference to the peculiar nature of the covenant. THE COVENANT AGAINST INCUMBRANCES. 95 value of the land, but consistent with the passing of the fee by the conveyance." ^ As a general rule, this definition is correct ; but the question recurs, what does "diminish the value of the land," and thus form an incumbrance ? and is this a question of law or of fact ? As to this, it has been said that " nothing which constitutes a part of the estate, or which, as between the parties, is to be regarded as an incident to which the estate is subject, can be deemed an incumbrance ; " ^ and again the question recurs, how shall it be determined whether the alleged incumbrance did, or did not, constitute a part of the estate, or was, or was not, regarded as an incident to which it was subject ? Abstractly considered, of course, no parcel of real estate, whether improved or otherwise, can be said to be perfectly free from every thing which would diminish its value in some degree for some pur- pose. If unimproved, there may be a marsh, a lake or a ledge of rocks, which may lessen its value for arable purposes ; if improved, there may be a want of light, of ventilation, or a thousand things incident to propinquity which may lessen its value for purposes of residence or commerce. Again, property which is subject to a lease may, if purchased for investment, command a higher price for that very reason, and this, in proportion to the length of the term and the amount of rent ; while, if purchased for immediate improvement, the lease will naturally lessen its value.^ Hence, in determining whether a cer- tain thing is or is not an incumbrance within the true intent and meaning of a covenant against incumbrances, it seems evident that, in some cases, it must be necessary not to interpret too strictly that part of the doctrine of the law of vendor and purchaser which, after the contract of sale has been consummated by the execution of the conveyance, determines the rights of the purchaser solely by ' 2 Greenleaf's Evidence, § 242. This definition was taken (except as to the words "which may subsist in third persons") from that given by Parsons, C. J., in Presoott v. Trueman, 4 Mass. 630. It was quoted with appro- bation in Mitchell v. Warner, 5 Conn. 627 ; Carter u. Denman, 3 Zabriskie (N. J.), 273. " Dunklee v. Wilton Railroad Co., 4 Foster (N. H.), 489. ' In 5 Powell on Conveyancing, 24, it is said, " Leases outstanding at rack rent are not incumbrances on large estates, because the income principally de- pends on occupiers. Contra, of a small estate, where there is but one tenant ; there, possession may be the main object ; " and see infra. 96 THE COVENANT AGAINST INCUMBRANCES. the terms of the deed itself and tlie covenants which it contains, but to consider what was the subject-matter of the contract, the relation of the parties to it and to each other, the notice on the part of the purchaser,^ and, to some extent, tlie local usage and habit of the country. Nor is this a deviation from the salutary rule which pro- hibits the introduction of parol evidence to contradict written instruments, since, as it is a leading rule that they are to be inter- preted according to their subject-matter, it is obvious that parol testimony must at times be resorted to in order to ascertain the nature and qualities of tlie subject to which the instrument refers.^ The application of tliis principle would, it is believed, solve whatever practical difficulty may be found to exist between the various cases in which has been presented the question of what is or is not an incumbrance within the covenant. Thus, there can be no doubt that the covenant is broken by the existence of a judgment, a mortgage, or any debt which is a lien upon the land conveyed ; ^ a right of dower, whether inchoate or consummate by tlie death of the husband ; * or by the existence of ' With respect to notice on the part of the purchaser, it may be here observed, in anticipation, that if the thing be really an incumbrance, nothing is better settled than that the purchaser's notice of it will be no defence to an action on the covenant, and nothing is more common than for a purchaser to take a cove- nant against a known incumbrance (see in/j-a) ; but on the question of what was the subject-matter of the contract, the purchaser's notice, or rather his knowl- edge, may in many cases have a material bearing. ^ Greenleaf on Evidence, § 286. ' Bean v. Mayo, 5 Greenleaf (Me.), 94 ; Shearer v. Ranger, 22 Pick. (Mass.) 447 ; Norton v. Babcock, 2 Metcalf (Mass.) .510; Jones v. Davis, 24 Wisconsin, 229. If, however, for any reason, the mortgage is not a lien upon the premises, there will, of course, be no breach ; Case v. Erwin, 18 Michigan, 434. So in Estabrook v. Smith, 6 Gray (Mass.), 672, where the land was conveyed on. con- dition that the grantee should erect a house within a year, which condition was complied with, the mere existence of the condition was obviously held to be no breach; "the condition as to the erection of a house made the estate defeasi- ble, but this was not an incumbrance within the meaning of the covenant against incumbrances, nor has the estate been defeated by breach of that condition." ■» In Powell u.Monson Co., 3 Mason (C. C. U.S.), 3.55, Judge Story inclined to the opinion that an inchoate right of dower was not an incumbrance within the covenant. " I am not prepared," saidhe, " to admit the doctrine contended for at the bar, that the covenant against incumbrances is broken by the mere existence of a possible incumbrance. A possibility of dower is not, within the meaning of the covenant, an incumbrance, for that means a settled, fixed incuQibrance ; and THE COVENANT AGAINST INCUMBRANCES. 97 taxes, whether presently due,i or which, when thereafter levied, relate back prior to the conveyance ; ^ but obviously not taxes which, if the result of the Massachusetts authorities on this point has not been mistaken by me, taking them collectively, they do not sustain the doctrine now contended for.'' The authorities thus referred to were Marston v. Hobbs, 2 Mass. 433, and Bickford v. Page, id. 461 ; but on examination they do not bear out this conclusion. However this may be, it has been since distinctly and finally settled in Mas- sachusetts, that a right of dower, whether inchoate or otherwise, is an existing incumbrance amounting to a breach of this covenant, which, it was said, extends to all adverse claims and liens on the estate conveyed whereby the same may be defeated in whole or in part, whether the claims or liens be uncertain and con- tingent, or otherwise ; Shearer v. Ranger, 22 Pick. (Mass.) 447 ; Bigelow v. Hubbard, 97 Mass. 195 ; (Fuller v. Wright, 18 Pick. 405, was the case of an executory agreement) ; and the law is so generally considered elsewhere ; Porter V. Noyes, 2 Greenl. (Me.) 26; Donnell v. Thompson, 1 Fairf. (Me.) 170; Smith V. Cannel, 32 Maine, 126 ; Blanchard v. Blanchard, 48 id. 177 ; Runnells V. Webber, 59 id. 488 ; Russ v. Perry, 49 N. Hamp. 549 ; Carter v. Denman, 3 Zabr. (N. J.), 273 ; Jeter v. Glenn, 9 Richardson's Law R. (S. C.) 376 ; Hen- derson V. Henderson, 13 Missouri, 1.52 ; Hatcher m. Andrews, 5 Bush (Ky.), 561 ; McAlpin V. Woodruff, 11 Ohio State R. 120. The supposition that a possibility is not an incumbrance, because a possibility merely, is met by the anonymous case in Sir Francis Moore's Rep. 249, pi. 393, and Haverington's ease, Owen, 7. An apparent difficulty which some of the cases present has 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 covenant is not broken by the mere existence of a right of dower, whether inchoate or otherwise. But where the form of the covenant is that the premises " are free from all incumbrance," then the covenant is as certainly broken by the existence at that time of a right of dower, although it may be inchoate and contingent ; though, at the same time, if the purchaser then sue upon the covenant, his damages might be but nominal (see infra). The distinction between a verdict for the defendant, and a verdict for the plaintiiF with nominal damages, is apparently so slight a one as easily to account for its having been sometimes lost sight of. It is often of importance, however, par- ticularly on the question of costs. 1 Almy V. Hunt, 48 Illinois, 45 ; Ingalls v. Cooke, 21 Iowa, 560 ; Mitchell v. Pillsbury, 5 Wisconsin, 410. ' Hutchins v. Moody, 30 Verm. 656; s. c. 34 id. 433 (see Pierce v. Brew, 43 id. 292) ; Rundell v. Lakey, 40 New York, 514 ; Overstreet v. Dob- son, 28 Indiana, 256; Blossom v. Van Court, 34 Missouri, 394; Peters v. Myers, 22 Wisconsin, 602 ; Long v. Moler, 5 Ohio State R. 272. In all these cases the question of liability depended upon local legislation as to the time when the lien of the taxes attached, and sometimes upon the express provisions of the statute as to whether the vendor or purchaser was liable for the current tax. In Spring v. Tongue, 9 Mass. 28, the subject of the sale was a pew, which the 7 98 THE COVENANT AGAINST INC0MBEANCE8. assessed after the execution of the deed, do not so relate back.^ So where a testator devised to his daughter the right of living in part of a house, of which the whole was afterwards sold by the residuary devisee, such paramount right was held to be a breach of the covenant against incumbrances made by the latter.^ So where the premises sold were subject to a covenant that no ardent spirits should be sold therefrom ; ^ or to a covenant that a certain fence should be erected or maintained ; * or to a restriction against build- ing except in a particular way,^ — all these have been held to be breaches of the covenant. It has been said, in several cases, that the covenant will be broken by the existence of a prior lease ; ^ and this may be unquestionably seller covenanted to be free from all incumbrance. By the act of incorporation, the pews were liable for any assessment which it might be necessary to make, and the plaintiff had been obliged to pay a certain sum assessed for the deficiency of funds in building the church, the money arising from the sale of the pews not having made up the requisite amount for that purpose. The case was submitted without argument. The court briefly held : '"We cannot consider this as an incumbrance for which the defendant is liable in damages. The facts must have ]peen equally known to each of the parties. The damage to the plaintiff arose from the diminished value of the pews in the general estimation. Had the pro- ceeds of the sale of the pews exceeded the cost of the house, the plaintiff would have had his proportion of the benefit. The loss therefore is properly his." In a late case in Maine (Clark v. Perry, 30 Maine, 148), the defendant conveyed to the plaintiff ten shares in an incorporated company. The assets at the time were not equal to the debts, which a general law of the State made the shares liable for, and it was held that this liability was a breach of the covenant against incumbrances, and in referring to Spring u. Tongue, the court said, " It does not appear but that the pews at the time of the sale to the plaintiff were equal in value to the amount of the expenses. But in the present case it is stated that the assets were not equal to the liabilities at the time of the conveyance." ' Jackson v. Sassaman, 5 Casey (Pa.), 109. = Jarvis v. Buttrick, 1 Metcalf (Mass.) , 480. ^ Hatcher v. Andrews, 5 Bush (Ky.), 561. ' Burbank v. PiUsbury, 48 N. Hamp. 475 ; Kellogg v. Robinson, 6 Verm. 276 ; (Blain v. Taylor, 19 Abbott's Pract. R. 228, was a case of an executory contract;) Parish v. Whitney, 3 Gray (Mass.), 516, was held otherwise, on the supposed ground that the stipulation in the deed that the grantee should main- tain the fence was a personal covenant, merely binding him and his representa- tives, but not affecting the estate. ' Roberts u. Levy, 3 Abbott's Pract. R. N. s. (N. Y.), 311. As to ease- ments, see infra, p. 100. ^ Batchelder v. Sturgis, 3 Cushing (Mass.), 201 ; Van Wagner v. Van Nos- trand, 19 Iowa, 422; Grice v. Scarborough, 2 Spears (S. C), 649. In Gale v. Edwards, 62 Maine, 360, the lease was expressly excepted from the covenant. THE COVENANT AGAINST INCUMBEANCBS. 99 true. It must be true in every case in which the existence of the lease, the possession Under which is not apparent, did not, accord- ing to competent evidence, form part of the subject of the contract and pass to the purchaser as an incident of the re version. ^ At the same time it must be far from liaving a general application. Thus, where the lease was only executory, and dependent for its effect upon some act of the lessor which he had never performed, it was held to be no breach.^ So where the purchaser received from the vendor, at the execution of the conveyance, an assignment of two prior leases of the premises, and notified the tenants to pay the rents to him, the existence of the leases was obviously held to be no breach.^ And it is conceived that, in practice, in the ordinary case of the sale of improved property which is tenanted, and of which the I'ent, by the terms of the contract, passes witli the reversion, few vendors ever dream of specially excepting the lease from the operation of a covenant against incumbrances. An apportionment is usually made, up to the date of the deed or of the delivery of possession, of the taxes, interest on incumbrances, water-rent, and the like, on the one hand, and of the rent, on the other ; the former being paid by the vendor, and the latter by the purchaser, to whom the tenant then attorns and pays the rent when due. Here it is of ' Anonymous, Sir Francis Moore's R. pi. 393 ; Haverington's case, Owen (temp. Eliz.), 7 ; Porter v. Bradley, 7 Rhode Island, 538. Thus, in Batchelder V. Sturgis, supra, the covenantee, having proved that the plaintifiF had notice of the lease, gave in evidence a certain agreement bearing even date with the conveyance, which he contended established an accord and satisfaction ; but the court held, " If this agreement shows any thing, it shows that the lease should have been exempted from the deed. But not having been exempted from the deed, the evidence was not of a character to control the legal effect and operation of the covenants in the deed." So in Grice v. Scarborough, supra, it was suggested that if the plaintiff had acquired a title to the rent reserved on the lease, which passed to him by the deed under the statute of 32 Hen. VIII. or in analogy thereto, he could not maintain the action, as he had had the benefit of the incumbrance, but as the case was presented upon demurrer to a plea that the plaintiff had notice of the lease, judgment was of course given for the plaintiff. " "Weld V. Traip, 14 Gray (Mass.), 330 ; Cross v. Noble, 17 P. F. Smith (Pa.), 77. ' Pease u. Christ, 31 New York, 141. This decision might also have been obviously put on the gr-ound of equitable estoppel; see infra, Ch. XI. 100 THE COVENANT AGAINST INCUMBEANCES. course impossible to call such a lease an incumbrance.^ At the same time, it should be observed that in case of deficiency of proof as to what was the subject-matter of the contract, the vendor would be, at least so far as a technical breach was concerned, at the mercy of his purchaser, while if his only evidence were parol proof that the lease was to be excepted from the covenant, it would fall within the general principle already referred to, and be unhesitatingly rejected.^ Again, it has been said that the covenant is broken by the exist- ence of any easements or servitudes to which the land is subject ; ^ and, as a general proposition, this may be also true. Thus the existence of a paramount private right of way ; * or, it has been held, of a right of way for a railroad ; ^ a right to cut and maintain a drain,^ or other artificial watercourse ; ^ a right to cut timber (or ' In the very recent case of James v. Litchfield, 9 Law Rep. Eq. 51, a pur- chaser filed a bill for specific performance with a deduction for compensation, on the ground that the tenant in possession had a lease for twenty-one years; and while admitting that he was aware that the tenant was in possession, alleged that until he had received the draft of the articles of sale he was not aware that the tenancy was more than from year to year, and alleged moreover that the property was in a building neighborhood and that he bought for building pur- poses, to which end immediate possession was essential ; but the Master of the Rolls (Lord Romilly) held that the purchaser, knowing of the tenancy, was bound to inquire as to the extent of the tenant's interest in the land, and dis- missed the bill with costs, unless the plaintiiF should elect to take the property without compensation. ' See supra, p. 96. ^ Mitchell V. Warner, 5 Conn. 508. The point decided in this case, however, viz., that although a covenant may run with the land, it will not run when the breach relates to water, has been so much controverted, that it must be con- sidered as practically overruled; see Wilson v. Cochran, 10 Wright (Pa.), 233; and infra, Ch. X. " Wilson V. Cochran, supra ; Russ v. Steele, 40 Verm. 310 (in this case, though the deed contained covenants both against incumbrances and of warranty, yet the plaintiff, being an assignee of the land, could not have recovered upon the former covenant, it being broken as soon as made, see infra, Ch. X. ; but the court considered the adverse occupation and user of the right of way as an eviction ; the law was held the other way in the recent case of McMullin v. Wooley, 2 Lansing (N. Y.), 394, as to the right to draw water from a spring) ; Blake v. Everett, 1 Allen (Mass.), 250; Weatherbee v. Bennett, 2 id. 428. ^ Barlow v. McKinley, 24 Iowa, 70 ; Beach v. Miller, 51 Illinois, 206. * Smith V. Sprague, 40 Verm. 43. ' Prescott V. White, 21 Pick. (Mass.), 341. The distinction taken by the cases between an artificial and a natural watercourse will be noticed presently ; THE COVENANT AGAINST INCUMBRANCES. 101 " woodleave " as it is sometimes called) ; ^ and, in some cases, it is said, by the rigbt to dam up and use the water of a stream run- ning through the land conveyed,^ — all these have been held to be incumbrances within the scope of the covenant. So it was held in New York, in a case between lessor and lessee, that the covenant was broken by the adjoining owner having the right to use the party- wall ;^ but in a late case in Iowa, which was between vendor and purchaser, the decision was the other way.* There are other easements, however, as to which there has been less apparent harmony of decision, and among these the most prominent is that of public highways or roads. It has been already said that such a way has been held to be no breach of the covenant for seisin, inasmuch as the freehold still remains in the owner of the soil, although the public may have the right of pas- sage over it.^ But in the early case in Massachusetts, of Kellogg V. IngersoU, the same rule was extended to public roads. In an action on the covenant against incumbrances, the breach assigned was the existence " of a public town road or way duly laid out by the town of A for the use of all its inhabitants," which was held to be an incumbrance. " It is a legal obstruction to the purchaser to exercise that domain over the land to which the lawful owner is entitled. An incumbrance of this nature may be a great dam- age to the purchaser, or tlie damage may be very inconsiderable, or merely nominal. The amount of damages is a proper subject of consideration for the jury who may assess them, but it cannot affect the question whether a public town road is, in legal contem- plation, an incumbrance of the land over which it is laid." ^ and in this very case, the jury having subsequently found that the water- course was natural (Prescott v. Williams, 5 Metcalf, 433), it was held not to be an incumbrance. ' Cathcart v. Bowman, 6 Barr (Pa.), 319 ; Spurr v. Andrew, 6 Allen (Mass.), 420 ; and in this case parol evidence was, of course, held inadmissible to prove that the trees were not to pass with the land ; see infra. ' Morgan v. Smith, 11 Illinois, 199 ; Ginn v. Hancock, 31 Maine, 42. » Giles V. Dugro, 1 Duer (N. Y.), 331. ' Bertram v. Curtis, 31 Iowa, 46. Possibly local provisions as to party- walls may reconcile these cases ; otherwise the decision in Iowa would seem to be the better law. ^ See supra, p. 80. ' Kellogg V. IngersoU, 2 Mass. 101, per Parsons, C. J. This case, it should be observed, was decided upon a question of pleading, the defendant having, in his plea, alleged that the premises were free from incumbrance. 102 THE COVENANT AGAINST INCUMBRANCES. In New York, however, although the question was not directly decided in the case of Whitbeck v. Cook, (the covenant sued upon being that for seisin), yet a strong doubt was there expressed whether a public road could properly be deemed an incumbrance ; ^ while in Pennsylvania, where the question was presented in Pat- terson V. Arthurs,^ it was decided in the negative. The court expressed its surprise that a highway should ever have been imagined an incumbrance within the covenant, and its belief that it had been the universal understanding of both sellers and pur- chasers 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 instead of a benefit to the holder or owner of the land upon which it is located, and there- fore tends to lessen its value in the estimation of a purchaser, yet it is fair to presume that every purchaser, before he closes his con- tract for his purchase of land, has seen it and made himself acquainted with its locality and the state and condition of it ; and, consequently, if there be a public road or highway open and in use upon it, lie must be taken to have seen it, and to have fixed in his own mind the price that he was willing to give for the land, with a reference to the road, either making the price less or more, as he conceived the road to be injurious or advantageous to the occupa- tion and enjoyment of the land. . . . The existence of the highway could not be regarded as an incumbrance that came within the ' 15 Johns. 483. "It must strike any one with surprise,'' said Spencer, J., " that a person who purchases a 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, shall 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 purchased, and what must have enhanced the value of the farm." And it was added, " the case of Kellogg v. Ingersoll has been cited to show that the existence of a town road is a breach of the covenant of incumbrances. The first answer to that case is, that the plaintiff here counts on no such contract ; and the second is, that we should choose to consider the point further before we consented to the doctrine of that case." " 9 Watts, 152, per Kennedy, J. The case, however, was not an action brought on a covenant against incumbrances, but an action by a vendor on an executory contract for the purchase-money of certain lots, covenanted to be con- veyed 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. THE COVENANT AGAINST INCUMBRANCES. 103 meaning of the parties, when they used the term ' inciimbrances ' in their contract ; ^ and hence an action of covenant could not be sustained on account of it for a breach of the covenant against incumbrances." ^ The authority of this case, as it was presented to tlie court, has ' This, as matter of law, was perhaps a little broadly stated. It is, however, settled that the covenants for title do not extend to the acts of the State in its exercise of sovereignty; Dobbins v. Brown, 2 Jones (Pa.), 80 (the objection to the decision in that case may be that the vendor had released to the State his right to compensation; see infra, Ch. VI.); Bailey u. Miltenberger, 7 Casey (Pa.) , 41 ; Dyer v. Wightman, 14 P. F. Smith, 427 ; Brimmer v. City of Boston, 102 Mass. 19. This is well shown by the many recent cases in which it has been uniformly held that where slaves were, prior to the late rebellion, sold with a covenant of warranty that they were slaves for life, the covenant was not broken by reason of their subsequent emancipation under the President's procla- mation ; Phillips w. Evans, 38 Missouri, 314 ; Fitzpatrick v. Hearne, 44 Ala- bama, 171 ; Haskill v. Sevier, 25 Arkansas, 152 ; Willis v. Haliburton, id. 173 ; Walker v. Gatlin, 12 Florida, 9 ; Hand v. Armstrong, 34 Georgia, 232 ; Whit- worth V. Carter, 43 Miss. 61; Osborn v. Nicholson, 13 Wallace (U. S. S. C), 655. ' It seems proper to remark that the opinion in Patterson v. Arthurs seems to have been in a great degree based upon what was considered to be the general understanding as to this point throughout the State, and the case of Kellogg v. Ingersoll was referred to, and supposed to have proceeded upon a general contrary understanding in Massachusetts, although this does not appear in that case or in the others decided in the New England States. But there may be reasons, although they are not mentioned in the opinion in Patterson v. Arthurs, why such a general understanding should have arisen in Pennsylvania, so far as respects public roads in the country. It was originally agreed by Penn, at the formation of this colony, that there should be laid out " great roads from city to city ; " and as the wild state of the country rendered this impossible to be done otherwise than very gradually, it became the custom of the proprietaries, and afterwards of the Com- monwealth, 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 there- after be opened. This was so universal that although the declaration of rights in the Constitution provided that no man's property should be taken or applied to public use, " without just compensation being made," it was held that an act of the legislature authorizing a turnpike company to lay out and open roads, with- out compensation, was no infringement of the Constitution, " such compensation having been originally made in each purchaser's particular grant " (McClenachan V. Curwin, 3 Yeates, 373) ; and from this circumstance, and the fact that "it had been considered that the running a road through a man's land conferred such a benefit upon him as fully to compensate him generally for the expense of fencing his land anew," we may, perhaps, trace the "common understanding" which formed the basis of the decision. 104 THE COVENANT AGAINST INCUMBRANCES. been recently distinctly recognized in the same State ^ and in a late case in Indiana it was held that " a legal public highway, in actual use, is not embraced in a general covenant against in- cumbrances." ^ But whatever weight may be due to these decisions, it cannot be denied that the current of authority has set strongly the other way, and the ruling in Kellogg v. Ingersoll has been approved and sustained in nearly all the New England States, and it appears to be definitively settled there that a public highway does consti- tute at law a breach of this covenant. ^ And in a very recent case ' Wilson V. Cochran, 10 Wright (Pa.), 233. Speaking of Patterson v. Ar- thurs, the court said (per Woodward, C. J,), " That was an action by a vendor for the first instalment of the purchase-money of certain lots covenanted to be conveyed clear of all incumbrances, and the purchaser claimed a deduction be- cause of a public road which passed diagonally over the ends of the lots and had been in use for thirty years. His defence was not sustained. Although this case has been severely criticised several times, and especially by Chief Justice Redfield, in Butler v. Gale, 1 Williams (Vt.), 742, it is not necessary for any present purpose of ours to question it, for it is broadly distinguishable from the case before us. Public roads are laid out in Pennsylvania by authority of the law, in pursuance of the authority of Penn, who established the custom of allowing to every grantee of land six acres in the hundred, as a compensation for the roads that should thereafter be opened, and they confer on the public merely a right of passage, whilst the title to the soil is left undisturbed in the owner of the land through which they pass. A purchaser who sees such a road that has been used thirty years upon the land he is buying, has no right to con- sider it an incumbrance within the meaning of a covenant against incumbrances. If it is not a positive benefit to the premises, he is presumed to have estimated its disadvantages in adjusting the price he has agreed to pay." ^ Scribner v. Holmes, 16 Indiana, 142, citing the text. 3 Herrick v. Moore, 19 Maine, 313 ; Haynes v. Young, 36 id. 557 ; Pritch- ard V. Atkinson, 3 K Hamp. 335; Butler v. Gale, 1 Williams (Vt.), 742; Parish v. Whitney, 3 Gray (Mass.), 516; Hubbard v. Norton, 10 Conn. 422. In this case, after quoting the remarks in Whitbeck u. Cook, supra, p. 102, note, Williams, C. J., said: "Upon the principle upon which the judge proceeds the evidence would be unnecessary, because he presumes knowledge in the grantee. He also presumes that the value of the farm will be enhanced by the road. This may be so or it may not be so. If it is, very little damages could be recovered ; if it is not, no weight is added to the argument, from the fact that cases may arise where it may be so. But if this course in the grantee might excite surprise, will it not excite more surprise that the grantor should convey these lands, with the knowledge he must have of these incumbrances, without malnng an exception of them, unless he was willing to sustain the damages that might arise from them ? When it is recollected that this is the deed of the grantor, and these his cove- nants, it seems more correct to say that he must abide by them, than to permit THE COVENANT AGAINST INCUMBRANCES. 105 in Illinois, these decisions have been approved and applied to the case where the incumbrance complained of was the right granted him to unnerve or destroy them, by proof of this kind, which is only calculated to induce a belief that the party grantor could not have intended what he has actually covenanted for." In the recent case of Butler v. Gale, supra, the sub- ject was carefully considered, and Redfield, C. J., in delivering the opinion of the court, said : " The question in regard to the highway being a breach of the covenants against all incumbrances, to a mere lawyer, would not seem to be one of much difficulty. But if one chose to confound the powers of the court of chancery, in restraining the party from claiming damages for such a mere tech- nical breach, which the parties must have understood and could not really have intended to indemnify against, with the dry law of the case, and to appeal to the merely popular opinion as to the extent of such a covenant, he might very readily convince some persons of no great perspicuity in their views, and very likely the great majority of men, of the very great absurdity of the law, without at the same time really showing very clearly how a highway or a railway or a private right of way was not, after all, an incumbrance upon the land. In this country, where our tenures are strictly allodial, we are very much accustomed to consider that, if another really possess any rights in our land, it is, so far forth, an incum- brance upon our title. Whether it be small or large in amount, whether it be a mortgage or a riglit to flow a portion or all of the land for a shorter or longer period during the year, or to draw water from a well or spring, or to water cattle at a brook, or to pass across the land on foot, or with teams, or to draw wood in winter only across the land, or to build and maintain a railway perpetually, or a highway, is certainly of no importance in determining the mere technical ques- tion of incumbrance or no incumbrance. And it can make no difference whether this right is notorious or not. If the question of an incumbrance were to be determined by its notoriety, or, what is the same thing, by its being known to the purchaser, it must, to preserve consistency, be extended to all incumbrances. And, in that view, the grantee could not recover upon this covenant, for paying a mortgage which he knew existed at the time of his purchase. But the contrary is perfectly well established. And in regard to these rights of way, if they existed only in a prior grant and were not known to the grantee at the time of purchase, no one could claim that they did not constitute a breach of the covenant against incumbrances. And if the question whether a highway is an incumbrance upon land is to be determined by the fact of its being open and notorious, it resolves itself into this, whether it was the intention of the parties to treat it as an incum- brance or not. And the same rule should equally apply to a mortgage which the purchaser agreed to pay. But no lawyer will contend that, in such a case, if the grantor covenants against all incumbrances, he is not liable to refund the money paid upon the mortgage by the grantee ; that is, he is so liable at law. This is the written contract of the parties, and it cannot be set right in a court of law where the writing is the exclusive evidence of the contract. But, in such a case, the party must resort to a court of equity to restrain the other party from claim- ing indemnity against an 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 highways are concerned. 106 THE COVENANT AGAINST INCUMBRANCES. to a railway company to construct their road across the land con- vey ed.^ " 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 time of the conveyance, could not have been intended to be indemnified against, and therefore should have been excepted from the operation of the covenant, and would, no doubt, so require the parties to treat the deed. But a court of law could not do this without confounding all distinctions between the equity and law jurisdiction upon the subject. The case of Patterson v. Arthurs, 9 Watts, 152, relied upon in argument by defendant's counsel, seems to us to have been decided upon this ground, there being no chancery jurisdiction in that State to any extent. It is the common practice there, or was a few years since, to reform a deed in the course of a jury trial, in an action of ejectment, as the reports abundantly show. That is the only ground upon which this case can be main- tained, unless we are prepared to determine questions of law according to the popular opinion, and the probable understanding of the parties at the time of making contracts, which sounds sufficiently absurd to alarm even the most des- perate reformers. The case of Whitbeok v. Cook, 15 Johnson, 483, is not an action upon any covenant against incumbrances, but upon those of seisin and good right to convey, and the court held a highway no breach' of the covenants sued upon. The argument of the judge is more plausible than sound, when he attempts to show that a highway is no incumbrance upon the land. It might, indeed, be a benefit to the land, and so might, in some sections of country, the right (and the exercise of it) to cut the wood and timber growing upon the land. But it could scarcely be claimed that such a right is no incumbrance. If a high- way is no incumbrance, neither would it be if the whole land were covered by a highway, or a public common. The case of Kellogg v. Ingersoll, 2 Mass. 97, is directly in point, and sustained by the opinion of Chief Justice Parsons, who never stumbled in the law, and is adopted in Connecticut, New Hampshire and Maine, as the cases read at the bar show, and we feel compelled to say that the question admits of no doubt that a public highway across land is an incumbrance upon the title, the amount of which may be more or less, according to the cir- cumstances." This reasoning, however, would not, perhaps, stand the test of universal appli- cation, that is to say, to every case of an existing lease, &c. ; see supra, p. 99. ' Beach v. Miller, 51 Illinois, 206. " Was this right of way," said the court, " an incumbrance upon the land? We think it was. It is true, the authorities on this question are not harmonious, but we think the current holds such an ease- ment to be an incumbrance, and that they are supported by the better reason. . . . Where a purchaser acquires the fee to land, free and unincumbered, he obtains the absolute dominion over it, and may use and enjoy it by appropriating it to any legitimate use he may choose. But where it is subject to easements, it is not free nor can he enjoy it to its full extent. When incumbered by a private or public way passing over it, he does not have absolute dominion over it, as he would were it not under such servitude. With the easement of a private way, the person holding it can use and enjoy it in hia own right for the purposes of the THE COVENANT AGAINST INCUMBRANCES. 107 The apparent diversity of decision which thus exists with respect to public highways, has been extended to another class of ease- ments, viz., those connected witli certain rights of water. The existence of a paramount right to take water from a spring upon the land conveyed, and the incidental right of way over the land, have obviously been held to be incumbrances. ^ So, of the right to dam up and raise the water in a branch of a stream run- ning across the land,^ and to erect and maintain a dam with sluices.^ But, in a case in Massachusetts, it was considered, first, that the existence of the right of a mill-owner above the land conveyed to way, and the owner of the fee cannot control its use. So of a public highway ; the public enjoy the right to its unobstructed use, in defiance of the owner of the fee. Where property is free from such servitudes, the owner may use and appro- priate every part of it to his individual and exclusive use ; but the portion occu- pied by such easements is not in any sense under his control in its use and enjoyment, except it be consistent with the enjoyment, and without obstructing those having the easement in its enjoyment. When a purchaser obtains title by deed without covenants, he, of course, takes it subject to all defects and incum- brances it may be under at the time of the conveyance. But where a person insists upon and obtains covenants for title, he has the right, when obtained, to rely upon them and enforce their performance, or recover damages for their breach. The vendor is under no compulsion to make covenants when he sells land, but, having done so, he must keep them or respond in damages for injury sustained by their breach. Nor is it a release or discharge of the covenant to say that both parties knew it was not true, or that ,it would not be performed when it was made. A person may warrant an article to be sound, when both buyer and seller know it is unsound ; so the seller may warrant the quantity or quality of an article he sells, when both parties know that it is not of the quality or does not contain the quantity warranted. In fact, the reason the pur- chaser insists upon covenants for title, or a warranty of quality or quantity, is because he either knows or fears that the title is not good or that the article lacks in quantity or quality. If he were perfectly assured on these questions, he would seldom be tenacious in obtaining a covenant or warranty. If, then, a pri-' vate or public way is an incumbrance, and we have seen that it is, it follows that, in principle, a turnpike or railway, legally located and running over a piece of land, upon the same ground and for the same reasons must be held to be an incumbrance, as it in an equal or greater degree obstructs or incumbers the free use of the land. And a person selling land thus incumbered, and covenanting that it is not, must be held to perform his covenant by its removal, or respond in damages." ' Harlow v. Thomas, 15 Pick. (Mass.) 66 ; Morgan u. Smith, 11 Illinois, 194 ; Mitchell v. Warner, 5 Conn-. 497 ; Lamb v. Danforth, 59 Maine, 322. " Morgan v. Smith ; Lamb v. Danforth, supra. ' Ginn V. Hancock, 31 Maine, 42. 108 THE COVENANT AGAINST INCUMBRANCES. have a natural stream of water pass freely over the land below, was not itself an incumbrance, and, secondly, that this right drew with it the incidental one to enter on the land below and remove obstructions.^ In a later case, where an upper and lower mill and dam had been conveyed by their owner to different parties, the ex- istence of the lower dam, with the right of raising water by it to the height at which it stood at the time of the conveyance, was held to be no breach of the covenant against incumbrances con- tained in the conveyance of the upper mill.^ An examination of the cases in Massachusetts, as also in Maine, Wisconsin, and perhaps some other States, would seem to show that they were, at least to some extent, based upon local statutes ' Prescott V. Williams, 5 Metcalf (Mass.), 429 ; though it was also said the exercise of this incidental right was to be confined within the strictest limits compatible with the enjoyment of the principal easement. ' Caryl!. Daniels, 8 id. 466. " The right," said the court, " to the use of the water below the granted premises, as modified by the appropriation previously made for the lower mill, was not, in legal contemplation, an incumbrance, but rather in the nature of parcel of such lower estate. One mode of testing this is to inquire what would have been the operation of a general covenant of warranty in this deed against incumbrances, if the lower mill, with the rights of water ap- propriated to it by the existing dam, had been owned by a third person. Would the existence of the lower dam, with the existing right of raising water by it to the height at which it then stood, have been an incumbrance for which the gran- tors would be liable on such covenant ? We think it would not. So we think this qualified warranty against incumbrances brought on the estatg by themselves was not broken, because their maintaining their lower dam to the height to which the water had been appropriated for its use was not an incumbrance upon the estate granted." In Fitch V. Seymour, 9 Metcalf (Mass.), 4C2, it was considered that, by the local mill acts (as to which see also Ballard v. Ballard Vale Co., 5 Gray (Mass.), 468), a right was given to flow land for working a mill, that the law did not re- gard this as an incumbrance so long as a right to compensation existed, and as that right to compensation had not been, in that case, validly released by the covenantee, by reason of its being by parol, it still existed, and the easement itself was, therefore, no incumbrance. " Strictly speaking," said the court, " the right given by the mill acts to the mill-owner is not that of flowing, or making any other direct use of his neighbor's laud adjacent to the stream above his own, but only to raise a dam on his own land to a height sufficient to raise a suitable head of water, and to continue the same to his own best advantage, although the land of another is thereby flowed. We do not, however, mean to say that a right to keep up such head of water, without payment of damages, may not, under some circumstances, be an incumbrance on the land." THE COVENANT AGAINST INCUMBRANCES. 109 relating to mills and mill streams/ and that they do not extend to easements in general.^ However this may be, the doctrine of these cases, in their broader signification, has been adopted elsewhere. Thus in a case in New Hampshire, where the respective owners of the upper and the lower land constructed, by agreement between them, an artificial raceway, shortening the courses of a brook which flowed through their lands, and the lower owner afterwards con- veyed to the upper owner, the plaintiff, who, being then the owner of both the parcels, conveyed part of the lower land to a third party, referring to both the raceway and the brook as monuments, it was held, in a very elaborate opinion, that the plaintiff's covenant against incumbrances did not prevent him from recovering damages against the defendant, who, claiming under the plaintiff's grantee, had erected a railroad and embankment across the watercourse to the plaintiff's damage ; it being considered that nothing which con- stitutes a part of the estate, or which, as between the parties, is to be regarded as an incident to which the estate is subject, can be deemed an incumbrance.^ So in a case in Vermont, where S., who owned a mill-pond and sur- rounding lands, parts of which were sometimes flooded, sold to the plaintiff's grantor parcel of this land adjacent to and not bounded by the pond, by deed containing a covenant against all incum- brances, it was considered that, while S. owned all the land, the idea of any easement could not attach to such a treatment and use of the stream of water relatively to the adjacent land, that the ' See Gould u. Boston Duck Co., 13 Gray, 442. '■' Thus, in the recent case of Carbrey v. Willis, 7 Allen (Mass.), 364, it was said, "It is a familiar principle that in a grant of a messuage, a farm, a manor or a mill, many things will pass which have been used with the principal thing as parcel of the granted premises, which would not pass under the grant of a piece of land by metes and bounds. In such cases, it is only a question of the construc- tion of the terms of description. But where there is a grant of land by metes and bounds, without express reservation, and with full covenants of warranty against incumbrances, we think there is no just reason for holding that there can be any reservation by implication, unless the easement is strictly one of necessity. Where the easement is only one of existing use and great convenience, but for which a substitute can be furnished by reasonable labor and expense, the grantor may certainly cut himself off from it by his deed, if such is the intention of the parties. And it is difficult to see how such an intention could be more clearly and distinctly intimated than by such a deed and warranty." 2 Dunklee v. Wilton Railroad Co., 4 Foster (N. H.), 489. 110 THE COVENANT AGAINST INCUMBRANCES. land, with the stream and use of it as a water privilege, constituted an entire estate, and the dam and the use of it were parcel of it, and neither an easement nor an incumbrance, that the deed from S. did not divest him of his right to flood the land otherwise than might consequentially result from his covenant against incum- brances, bnt " such covenant has relation to rights existing in, or in relation to, the property conveyed, appertaining to parties of^«r than the grantor, and which may be claimed and exercised and enforced upon and against such property, as against such grantor and his assigns." ^ So in a very recent case in Wisconsin, where the land conveyed had been, for a time long enough to create a prescriptive right, flooded by a mill-pond created by a dam on other adjoining property, it was held that this right of flooding was not an incumbrance within the covenant ; that purchasers of property which was ob- viously and notoriously subject at the time to some easement or servitude affecting its physical condition, take it subject to such right, without any express exceptions in the conveyance, and that the vendors are not liable on their covenants by reason of its existence.^ ' Harwood u. Benton, 32 Verm. 724. "It is obvious," continued Barrett, J., who delivered the opinion, "that, in this sense, no such incumbrance existed upon the property now owned by the plaintiff, while the title to it was in Safford. Of course, then, at the moment of passing the title and making the covenant by the delivery of the deeds, the property was free from incumbrance, and so there could not have been a breach at that time, in virtue of the state of the title to, or of rights then existing in, or in respect to, said property. Is it matter of legal intendment that the grantor should, by force of such covenant, be estopped from exercising any right which, if, it had existed in, and been exercised by, a third person, prior to said conveyance by SalFord, would have constituted an incumbrance? So to hold, would seem to be giving to such a covenant a scope and effect beyond what has been regarded as its ordinary and legal limits, and no precedent or authority has been cited to justify us in so holding ; " see also Swasey v. Brooks, 30 Verm. 692 ; s. c. 34 id. 451, overruling in part Vermont R. K. V. Hills, 23 id. 681. ^ Kutz V. M'Cune, 22 Wisconsin, 628. "This principle," said the court, "has been applied in the case of a highway opened and in use upon the land at the time of the conveyance, . . . and seems fully applicable to the present case. There is no material difference, so far as this question is concerned, between a public highway and a right of flowing the laud by a mill-pond in actual existence upon it. In the case of a highway, the doctrine does not rest upon the fact that the right is in favor of the public, but that the easement is obvious and notorious in its character, and that, therefore, the purchaser must be presumed to have THE COVENANT AGAINST INCUMBEANCES. Ill Tn a very recent case in Maryland,^ the owner of two adjoining lots leased the East lot for a renewable term of ninety-nine seen it, and to have fixed his price for the land with reference to its actual con- dition at the time. And certainly a mill-pond upon land is quite as notorious an object as a highway, and the reason for the presumption just suggested is quite as strong. . . . There is another class of cases which strongly support the same conclusion. The principle which they establish may be briefly stated, in the language of the syllabus to Seymour v. Lewis, 2 Beas. (N. J.) 439, as follows : ' Where the owner of two tenements sells one of them, the purchaser takes the tenement or portion sold, with all the benefits and burthens which appear at the time of the sale to be ong to it, as between it and the property which the vendor retains.' The case cites a great number of authorities illustrating the rule. It was also in accordance with the French law, as shown in Washburn on Ease- ments, pp. 16, 17. And a very strong instance of its enforcement is found in the recent case of Ilarwood v. Benton, 32 Verm. 724. . . . According to that case, if the defendant here had himself owned the mill and dam which created the mill- pond', he would have retained the right to flow this land as it was flowed, and would not have been liable on the covenants. Can there be any stronger reason for holding him liable now ? If the law, without any exception in the deed, will, from the presumed understanding of the parties, based upon the obvious condi- tion of the property sold, imply a reservation in favor of the vendor, should it not equally imply one upon the same' grounds when the continued existence of the right is of no benefit to the vendor ? True, there is a technical difierence, which is alluded to in the case last cited; that is, that where both parcels of land are owned by the same person, the servitude imposed on a part in favor of the rest is not technically an easement, because no man can have an easement in his own land. But the implied reservation in his favor takes eiFect at the same instant witli his covenants on the delivery of the deed, and then constitutes an easement in his favor, and, consequently, an incumbrance. And certainly there is no more ground for supposing that the purchaser in such case intends to take the property subject to such reserved right in favor of his vendor, than there is in the case where the property, in whose favor the servitude is imposed, is owned by a stranger, to suppose that he intended to take it subject to that. This class of decisions does not rest at all upon technicality, but upon the broad substantial grounds constituting the foundation of the former class. . . . The substantial foundation for both classes of decisions is the strong natural presumption that the parties sell on the one hand, and buy on the other, the property in its actual physical condition, and subject to such rights, either in favor of the vendor or others, as that physical condition obviously indicates, without any ex- ceptions or reservations concerning them in the deed. So that the decisions that an existing highway in favor of the public, and a right of flowing the land con- veyed by the vendor as it was done at the time of the conveyance, do not consti- tute breaches of the covenant against incumbrances for which the vendor is liable, really rest upon the same principle. The court below compared it to the Janes v. Jenkins, 34 Maryland, 1. 112 THE COVENANT AGAINST INCUMBRANCES. years, and covenanted that the lessee should have the right to open certain windows deriving their light from the West lot ; he subsequently conveyed the West lot with a covenant of warranty against his own acts.^ In an action brought by the purchaser of the West lot for a breach of the covenant, it was held that the existence of the windows and the right to their continuance was not a breach of the covenant. The question, said the court, " depends upon the apparent and ostensible condition of the prop- erty at the time of sale. And as the wall had been erected, and the lights therein were plainly to be seen when the appellant pur- chased the property overlooked by them, it is but rational to con- clude that he contracted with reference to that condition of the property, and that the price was regulated accordingly. The parties, in the absence of any thing to the contrary, are presumed to have contracted with reference to the then condition and state of the property ; and if an easement to which it is subject be open and visible, and of a continuous character, the purchaser is sup- posed to have been willing to take the property, as it was at the time, subject to such burthen. That being so, the covenants in the deed must likewise be construed with reference to the condition of the property at the time of conveyance. The grantor, by his covenant, warranted the premises as they were, and by no means intended to warrant against an existing easement, which was open and visible to the appellant, and over which the former had no power or control whatever. To construe the covenant to embrace such subject would most likely defeat the understanding and inten- tion of the parties, certainly of the grantor ; " and the case of Patterson v. Arthurs^ was cited and approved.^ case of a mortgage on the property sold, known to the purchaser. But the two cases are essentially different. A mortgage does not affect the physical condition of the property at all. It is a mere incident to a debt of the vendor; and where the purchaser takes his covenant against incumbrances, there is no reasonable ground for supposing that he intended to have his land subsequently sold to pay the vendor's debt, or else to pay it himself. It is so different from the question that has been considered, that there is really no comparison between them." ' So far as respects the point decided in this case, the covenant of warranty was the same as the covenant against incumbrances. 2 9 Watts (Pa.), 152, supra, p. 102. ' This decision has been criticised in 11 Amer. Law Register, N. s. (January, 1872), p. 81, but apparently without sufficient reason. The decision was but an extension of that in James v. Litchfield, supra, p. 100. THE COVENANT AGAINST INCUMBRANCES. 113 In considering these cases which thus decide that such ease- ments as highways and rights of water and light are not to be deemed incumbrances within the scope of the covenant against incumbrances, they seem to proceed upon the ground that such easements are always impliedly reserved in favor of the grantor whenever the burden is apparent and necessarily results from the situation of the property ; or, in other words, that the generality of the covenant is limited and qualified by the nature of the estate conveyed.! The question, moreover, whether the easement is or is not an incumbrance, is regarded by the cases on both sides as exclusively one of law, to be determined as an abstract proposition by the court. And so, in fact, it must be, if the rights of the parties are absolutely fixed by the terms of the deed. But if the court be at liberty to seek for the intention of the parties dehors the deed, by reference to physical or supposed notorious incidents of the land, the question would seem to extend beyond one of mere construction of a written instrument, and the fact that parol evi- dence is admissible, to some extent, to explain what was the subject of the contract does not lessen the power of the coiirt to determine what is an incumbrance within the intention of the parties. And, in the nature of things, it would seem that such questions cannot always be mere abstract ones. Such incumbrances as leases have already been referred to.^ They may be benefits and they may be burdens. So, with respect to buildings ; in most cases, they add to the value of the laud,^ and yet, if it be bought for purposes of improvement, their removal must cause expense. But no breach of a covenant against incumbrances was ever assigned by alleging that the land was in part covere"d by buildings, which passed, with the land, to the purchaser. Instead, therefore, of laying down an abstract rule, it would seeim that, in a certain class of cases, the question of what is or is not an incumbrance, should, as has been already said, be deter- mined by reference to the subject-matter of the contract — the relation of the parties to it and to each other — the notice on the part of the purchaser, and, to some extent, the local usage and ' As to this see infra, Ch. V. ^ Supra, p. 99. ' And, as has been already seen, the removal by paramount right of a house or other fixture has been held to be a breach of the covenant for seisin and of warranty, supra, p. 79. 8 114 THE COVENANT AGAINST INCUMBRANCES. habit of the country ; and when these facts are found by the jury, it will be the province of the court to determine whether the easement did, or did not constitute an incumbrance, subject always, in case of doubt, to the application of the maxim verba cartarum fortius accipiuntur contra proferentem?- It was observed in the chapter on the covenant for seisin that in the pleadings on that covenant, it was unnecessary for the plain- tiff to specify tlie paramount title, or indeed refer to it in any way, either in the declaration or replication. A different rule, however, prevails with respect to the covenant against incumbrances. It is not sufficient that the plaintiff negative the words of the covenant generally ; he takes upon himself the responsibility of proving the incumbrance, and must set it forth in his declaration. A contrary rule would oblige the defendant to prove a negative.^ It is not, however, necessary or prudent, either in suing upon this covenant, or upon that for quiet enjoyment or of warranty, that the incum- brance or paramount title should be set forth more than substanti- ally, since if it were particularly alleged, and being so alleged were traversed, the plaintiff might not liave the means of proving it exactly.^ The damages should, however, be laid with reasonable certainty,* ' Supra, p. 96. As was said in the recent case of Wilson v. Cochran, 12 Wright (Pa.), 112, " It is suggested that this mode of ruling the case is virtually impair- ing a written covenant by parol evidence. Not at all. The subject-matter of the conveyance, its condition and peculiarities, may be explained by parol without any contradiction of a deed. Do we contradict the conveyance of a tract of land when we permit it to be proved by parol that it is covered with timber, or is an improved farm, or contains a water-power, or has a private road upon it ? If a vendee means to exclude proof upon such subjects, he should take a more special covenant than a general warranty of title." ^ Dummer v. Birch, 1 Comyns, 1^6 ; Marston v. Hobbs, 2 Mass. 437 ; Bick- ford V. Page, id. 461 ; Mills v. Catlin, 22 Verm. 106 ; De Forest v. Leete, 16 Johns. 122; Kennedy v. Newman, 1 Sandf. S. C. R. (N. Y.) 187 (see this case noticed supra, p. 86) ; Shelton v. Pease, 10 Missouri, 473. ^ 2 Williams' Saunders, 181 a, note 10 ; Foster v. Pierson, 4 Term Rep. 617 ; Young V. Rainoock, 7 Com. Bench, 310; Duval v. Craig, 2 Wheaton, 45 ; Mor- gan V. Smith, 11 Illinois, 200; Blake v. Everett, 1 Allen (Mass.), 248. ' De Forest u. Leete, 16 Johns. 122; Funk «. Voneida, 11 Serg. & Rawle, 109 ; Tufts V. Adams, 8 Pick. 549 ; Pillsbury v. Mitchell, 5 Wisconsin, 22. The following form is given by Mr. Greenleaf in his Treatise on Evidence, vol.'ii. § 244. " The declaration by a grantee by deed of bargain and sale, against his grantor, for breach of the covenant of freedom from incumbrance by the exist- THE COVENANT AGAINST INCUMBRANCES. 115 for as the general rule is that the mere existence of the incum- brance, without more, will entitle the plaintiff to but nominal dam- ence of a paramount title, is in this form : ' in a plea of covenant ; for that the said defendant, on the day of by his deed (if by indenture it should be so set forth) duly executed, acknowledged, and recorded, and by the plain- tiff now here produced in court, for a valuable consideration therein mentioned, bargained, sold and conveyed to the plaintiff (here describe the premises) , to have and to hold the same with the appurtenances to the plaintiff, and his heirs and assigns forever ; and therein, among other things, did covenant with the plain- tiff that the said premises were then free from all incumbrance whatsoever. Now the plaintiflf in fact says that, at the time of making the said deed, the premises aforesaid were not free from all incumbrance ; but on the contrary, the plaintiff avers that, at the time of making said deed, one E. F. had the par- amount and lawful right and title to the said premises ; by reason whereof the plaintiff has been obliged to expend, and has expended a great sum of money, to wit, the sum of , in extinguishing the said paramount and lawful right and title of the said E. F. to said premises.' " The above form is, however, very concise. Others more elaborate will be found in 2 Chitty's Pleading, 548-559 ; 6 Wentworth's Pleading, 53, 63 ; and in Carter v. Denman, 3 Zabr. (N. J.) 273, is a very carefully drawn declaration where the incumbrance was a right of dower which had been extinguished by the plaintiff. The form will, of course, vary with the nature of the incumbrance and the manner in which the damages have been sustained. If the covenant be limited to the acts of the grantor, the declaration must, of course, show that the incumbrance was made or suffered by him, otherwise it will be bad on demurrer ; Mayo v. Babcock, 40 Maine, 142. It has been recently held in Connecticut that an amendment of a declaration, by adding a count setting forth a new and distinct incumbrance, is not objectionable as changing the ground of action, within the statute which authorizes amend- ments which do not change the form or ground of action ; Spencer v. Howe, 26 Conn. 200. There are cases where the plaintiff has extinguished the incumbrance after suit brought, and been held entitled to recover the amount paid for that purpose ; Kelly K. Low, 18 Maine, 244; Foote v. Burnet, 10 Ohio, 317; Brooks v. Moody, 20 Pick. (Mass.) 475; Moseleyu. Hunter, 15 Missouri, 322. In a recent case in the Queen's Bench, the plaintiff declared on the breach of an agreement to assign a lease, and alleged that he had been " put to great expense, amounting to a large sum of money," &c., in investigating the title. On the trial it appeared that he had not paid the bill of costs until after suit brought, but it was, never- theless, held that he was entitled to recover. "If," said Lord "Denman, "a plaintiff chopses to allege in his declaration that he had paid money, he must prove that he had paid it; but if he merely says that he has been 'put to expense,' the allegation is satisfied by proof that he has incurred a liability to pay ; " Richardson v. Chasen, 10 Q. B. 756. In Boyd v. Bartlett, 36 Verm. 1, the plaintiff, in his original declaration, averred that the defendant covenanted that there were no incumbrances, and 116 THE COVENANT AGAINST INCUMBRANCES. ages,^ the familiar principle applies that where damage does not necessarily arise from the act complained of, the plaintiff must, to prevent surprise, state the particular damage sustained, or he will not be permitted to give evidence of it on the trial.^ The damage may arise in various ways. The purchaser may be obliged to extinguish the incumbrance, or he may be evicted under it, or the land may be sold under a subsequent incumbrance, when, if the amount of the former one be paid out of the proceeds of sale, it will, by so much, diminish the amount coming to the plaintiff.^ As respects the burden of proof, this rests, in the first instance, upon the plaintiff. In case there are known incumbrances of any kind subject to which the purchaser agrees to take the property, these should, for every reason, be specially and expressly excepted from the opera- tion of the covenant. 1. Tliey should be excepted, for the protection of the vendor, for assigned as a breach that there was a mortgage on the property at the time of the conveyance by the defendant to one of the grantors of the plaintiff. To this the defendant demurred, and the court sustained the demurrer. Subse- quently the plaintiif, with leave of the court, amended his declaration by adding a count based on the covenant of general warranty, and assigned the said mort- gage as a breach ; and it was held that the amendment was properly allowed, as the cause of action in the two counts was the same. In this case the plaintiff relied on a mortgage as being a breach of the covenant of general warranty, and the defendant by demurring admitted that it was a valid incumbrance. So the only question was, whether a proper eviction had been shown by the pleadings. The case seems to be not very clearly reported. > See infra, Ch. IX. = 1 Chitty's Pleading, 338 ; Pillsbury v. Mitchell, 5 Wisconsin, 22. " Haire v. Baker, 1 Selden (N. Y.), 361. Thus, in Funk v. Voneida, 11 Serg. & Rawle (Pa.), 109, when the fact of the existence of a mortgage on the premises of the purchaser got to be publicly known, his creditors, becoming anxious for their security, pressed him, and the property was sold at a sacrifice, and the court said, " If the plaintiff had laid the consequential damages he offered to prove, the evidence should have been received ; but as they were not laid, and not confessed by the plea of covenants performed, it is evident the evi- dence was properly overruled. If he had discharged the mortgage, this ought to have been stated as the actual gravamen. So if by a judicial sale he had sus- tained, as was alleged, the ultimate damage which he ever could have sustained, this gravamen ought to have been laid." See also Batchelder v. Sturgis, 3 Gush- ing (Mass.) , 204. THE COVENANT AGAINST INCUMBRANCES. 117 if not SO excepted, the fact of their being known to the purchaser will, according to the weight of authority, be no bar to his recovery upon the covenant.^ Thus, in an old case where a grantor cove- nanted that a lease was good and unincumbered, in an action of covenant alleging an incumbrance the defendant pleaded that the plaintiff had notice, which was held bad on demurrer.^ This decision has been often recognized and followed,^ and it must be considered as settled that mere notice of an incumbrance cannot affect the right of recovery upon the covenant.* It is evident that ^ That is to say, if the alleged incumbrance be really an incumbrance, as to which, as has been seen, the question of notice may be very material ; see supra, p. 96. ^ Levit V. Witherington, Lutwyche, 317. This reference is to the French folio of 1704. In Nelson's translation (octavo, 1718) the case is omitted. ^ Funk V. Voneida, 11 Serg. & Rawle, 112 ; Hubbard v. Norton, 10 Conn. 431 ; Grice v. Scarborough, 2 Spears (S. C), 649 ; Snyder u. Lane, 10 Indiana, 424. In the two latter cases a plea of the plaintiff's notice of the incumbrance was held bad on demurrer. "It is no answer to the purchaser's complaint," said Duncan, J., in delivering the opinion in Funk v. Voneida, supra, " to say it was his duty to search the record, and to have protected himself by some special covenant against this specific incumbrance. It was no part of this case that he had actual notice, but if he had, it could make no difference. The purchaser covenanted against all incumbrances. The rule as to the vendee is caveat emptor. So let the vendor take care of the covenants he enters into. Notice of the mort- gage would make no difference, as was determined in Levit v. Witherington." So in Hubbard v. Norton, supra, it was said, " How can the plaintiff's knowl- edge 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 seisin ? If not, by what rule can such knowledge impair a covenant of warranty against incum- brances ? " * Hubbard v. Norton, 10 Conn. 422 ; Sargent v. Gutterson, 13 N. Hamp. 473 ; Lloyd V. Quimby, 5 Ohio State R. 265 ; Taylor v. Gilman, 25 Verm. 413 ; Harlow V. Thomas, 15 Pick. (iVIass.) 70; Grice v. Scarborough, 2 Spears (S. C), 654; Medler v. Hiatt, 8 Indiana, 173; Snyder v. Lane, 10 id. 424; Dunn w. White, 1 Alabama, 645 ; Suydam v. Jones, 10 Wendell (N. Y.) , 185 ; Morgan V. Smith, 11 Illinois, 200 ; Van Wagner v. Van Nostrand, 19 Iowa, 427, where the text was cited; Barlow v. McKinley, 24 Iowa, 70; Perkins v. Williams, 5 Coldwell (Tenn.), 513; Worthington v. Curd, 22 Arkansas, 285; and see also the cases cited infra. But, as will be hereafter seen, although the purchaser's notice of an incum- brance or defect is no bar to his recovery at law on the covenant, it will afford a ground for refusing him relief in equity as to detaining the unpaid purchase- money ; Worthington v. Curd, supra. See infra, Ch. XIV. In Roberts v. Levy, 3 Abbott's Pract. R. (N. S.) (N. Y.) 316, a distinction 118 THE COVENANT AGAINST INCUMBRANCES. the only presumption to be drawn from the purchaser's notice is that he agreed to run the risk of the incumbrance, or, in other words, that the incumbrance was intended to be excepted from the operation of the covenant ; but if this be really the case, it is in the power of the vendor to insert this fact in the deed, and if he neglect to take this precaution, he cannot be allowed to repair his carelessness at the expense of settled principles. If, indeed, the agreement of the parties has been improperly or imperfectly set forth in the conveyance, the familiar jurisdiction of equity in the reformation of deeds on the grounds of fraud and mistake may be successfully resorted to,' or if the omission has been occa- sioned by fraud, he may have a remedy at law by an action on the case in the nature of a writ of deceit,^ but every court of law which enforces the rule that parol evidence is not admissible to control or contradict the effect of written instruments must, in was suggested between actual and constructive notice ; and while the court were clear that constructive notice would not defeat a recovery, it seems to have been thought that proof of actual notice might be received in mitigation of damages. But it is submitted that the evidence, if admissible at all, must be to prove that the particular incumbrance /brmecZ no part of the contract, and hence there could be no recovery for a breach of it. • Haire v. Baker, 1 Selden (N. Y.), 360; Busby v. Littlefield, 11 Foster (N. H.), 199; Taylor v. Gilman, 25 Verm. il3 ; Butler v. Gale, 27 id. 744; Metcalf M. Putnam, 9 Allen (Mass.), 99; Stanley v. Goodrich, 18 Wisconsin, 505; Van Wagner !). Van Nostrand, 19 Iowa, 427. "Where no question of fraud or mistake is involved, the rule with respect to the admission of parol evi- dence to vary a written contract is the same in courts of equity as in those of common law. The rule is one of common sense and reason as well as of law, and is based upon the well-founded presumption that, when an agreement is re- duced to writing by the act and consent of the parties, the agreement should be sought in the instrument which they have chosen as the repository and evidence of their purpose, and not on one side of it, in extrinsic facts or allegations. This presumption may, however, be rebutted in equity by proof of fraud or mis- take in the preparation of the writing, by which its terms have been varied or made different from what they were intended and believed to be, which neces- sarily shows that the written contract is not the true one, and that the meaning of the parties must be sought elsewhere. And it is equally well settled that this may be done by every species of evidence, and by oral testimony in default of other proof, because it would be absurd to look for the fraud or mistake in the writing ; and some latitude is necessary for the attainment of the end in view, and for the detection of the fraud, if fraud has been committed ; " Judge Hare's note to WooUam v. Hearne, 2 Leading Gases in Equity (3d ed.), 670. ^ Sargent v. Gutterson, 13 N. Hamp. 473 ; Funk v. Voneida, 11 Serg. & Rawie, 112. THE COVENANT AGAINST INCUMBRANCES. 119 an action on the covenant against incumbrances, exclude evidence to show that it was the agreement of the parties tliat the covenant was not to extend to a particular incumbrance not expressly ex- cepted from its operation.^ ' Townsend v. Weld, 8 Mass. 146 ; Harlow v. Thomas, 16 Pick. 70 ; Don- nell V. Thompson, 1 Fairf. (Me.) 177 ; Batchelder v. Sturgis, 8 Gushing (Mass.), 203; CoUingwood v. Irwin, 3 Watts (Pa.), 306; McKennan v. Doughman, 1 Penn. 417; Suydam v. Jones, 10 Wendell (JST. Y.), 185; Long u. Moler, 5 Ohio State R. 271 ; Grice v. Scarborough, 2 Spears (S. C), 649 ; Van Wag- ner V. Van Nostrand, 19 Iowa, 428. In CoUingwood v. Irwin, supra, the cove- nantor offered to show that at the time of the execution of the deed it was agreed that the assignment of a certain judgment should be the only secufity of the covenantee, and that the former was not to be held liable on his covenant. But the court said, " It is impossible to avoid seeing that to admit such proof would not only be admitting evidence to contradict, but to alter and change most mate- rially, the character and effect of the deed. Instead of being a deed with cove- nant of general warranty, as it purports on its face, it would, by the operation of the evidence proposed to be given, become a deed without any engagement whatever on the part of the grantor for the goodness of the title. It is not pre- tended that there was any mistake or fraud committed in introducing the covenant of general warranty into the deed ; the evidence, therefore, is not offered with a view to obtain relief from the one, nor the purpose of correcting the other. The evidence offered then being oral, falls directly within the general rule that it shall not be admitted to contradict, alter, or vary the written agreement between the parties to it. The court was therefore right in rejecting it." It is true that in Leland v. Stone, 10 Mass. 459, it was held that evidence was admissible, in mitigation of damages, to show that part of the land had been included by mistake in the deed ; that the purchaser had paid nothing for it ; and that the prior grantee had long been in notorious and exclusive possession ; and this was thought to present " a case for the equitable consideration of the jury.'' Upon the authority of this case, the Supreme Court of Illinois went a little farther, and decided (as had also been held in Indiana, see infra') that parol evidence may, in bar of a recovery, be given to show that the purchaser agreed to take the prop- erty subject to certain incumbrances which were not excepted from the covenants or in any way mentioned in the deed ; Sidden v. Kiley, 22 Illinois, 111 . But more recently, in Massachusetts, the same point was decided the other way, in Harlow V. Thomas, 15 Pick. (Mass.) 66 ; and although Leland «.■ Stone was not then over- ruled, yet in the recent case of Spurru. Andrew, 6 Allen (Mass.), 422, the court, referring to Leland w. Stone, said of it: " So far as that case may be supposed to infringe upon the rule excluding oral evidence, when offered to control or con- tradict the deed Itself as the proper evidence of the contract between the parties, it is not to be extended. Under the equity powers conferred upon this court, full opportunity is afforded for parties aggrieved by the fact that their contracts, as drawn and executed, were the result of accident or mistake, and not such as to give effect to the real contract intended to be made, to apply to this court to 120 THE COVENANT AGAINST INCUMBRANCES. It has, moreover, been said that the fact of the purchaser hav- ing notice of an incumbrance, is the very reason for his taking a have the same reformed and corrected. In that way, proper relief may be granted." In the preceding cases, parol evidence was held inadmissible on the part of the covenantor to show that an incumbrance which, on the face of the deed, was included within the covenant, was in fact intended to be excepted from it, and the converse of the proposition is of course equally true ; an'd an incumbrance which, on the face of the deed, is excepted from the covenant, cannot be shown by parol to have been intended to be included within it ; and it has consequently been held that an action of assumpsit cannot be sustained upon a parol promise alleged to have been made at the execution of a deed containing covenants lim- ited to the acts of the grantor, whereby the latter agreed to discharge an incum- brance not created by himself, and therefore not within the covenant ; Howe o. Walker, 4 Gray (Mass.), 318 ; Duncan v. Blair, 5 Denio (N. Y.), 196 ; or upon an alleged parol warranty of quantity of land conveyed, Cook v. Coombs, 39 N. Hamp. 597 ; or of timber growing on it, Powell u. Edmunds, 12 East, 6. There is, however, a class of cases (which the student will find collected in the note to Woollam v. Hearne, 2 Lead. Cas. in Equity, 670) which, while profess- ing to observe the rule which prohibits the introduction of parol evidence to con- tradict or alter written instruments, still recognize an important exception to it, and proceed upon the ground that where an agreement has been entered into, with an understanding that it shall only be used for certain purposes or with cer- tain qualifications, that understanding cannot be violated without a breach of good faith. With these cases must, it would seem, be classed Allen v. Lee, 1 Indiana, 58, where evidence was held admissible to show that, at the time of the execution of the deed, the vendor said that the purchaser was to take the land with the incumbrance of a lease for life, and that he thought it should be so mentioned in the deed, but that the purchaser replied that he knew that such was the contract, but it was unnecessary to mention it in the deed, as he was about to undertake to keep the tenant for life, and wished to have the whole title in himself. Smith, J., in delivering the opinion of the court, said, somewhat more broadly than was necessary, "A general covenant of warranty does not, at least con- clusively, extend to such incumbrances as were known to the purchaser at the time of the contract, and which he agreed to pay or discharge himself, in addition to, or as part of, the consideration-money from him to the vendor ; and where the question is, as in this case, what was the true consideration paid for the land, we think such facts may be given in evidence without in any manner contradicting the terms of the written warranty." It must, how- ever, 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. In the subsequent case of Medler u. Hiatt, 8 Indiana, 173, the court, while professing to adhere to Allen v. Lee; said that "the rule of decision on this subject, as evinced by various authorities, is to some extent unsettled. None of these, however, sustain the position that mere THE COVENANT AGAINST INCUMBRANCES. 121 covenant within whose scope it is included,^ and that in some cases the vendor may be expected to discharge it out of the pur- chase-money.^ For all these reasons, therefore, whenever the contract is that the purchaser is to take the land cum onere, the incumbrance notice to the vendee, at the time he receives his deed, of an existing incumbrance, excludes it from the operation of an express covenant against incumbrances." The authority of Allen v. Lee has, however, been approved in Illinois ; Sidden V. Riley, 22 Illinois, HI (see supra) ; while in Indiana it has been distinctly recognized and affirmed. In Pitman v. Conner, 27 Indiana, 337, in an action on the covenant against incumbrances, the defendant was allowed to prove that at the time of the execution of the deed the plaintiff himself agreed to discharge the incumbrance, and this was affirmed on error. " It was held by this court, in Allen V. Lee, that a covenant of general warranty does not extend to such in- cumbrances, as the party receiving the deed assumed to discharge as part of the consideration for the land, and that parol evidence may be admitted to show that he thus assumed to pay such liens, and that such evidence does not contradict the covenant, but simply that the property was taken subject to the liens. We regard this as an established rule of property in this State, and could not feel ourselves at liberty to disturb it upon any question of its soundness. Nor are we satisfied that the rule is wrong in principle." In the very recent case of Fitzer v. Fitzer, 29 Indiana, 468, the court, in again speaking of Allen v. Lee, said, " Though this doctrine is questioned elsewhere, and indeed the very opposite is held in many of the States, yet in Pitman v. Conner, where we were urged to reconsider it, we regarded it as a rule of property, so long established that it ought not now to be disturbed." And in the very recent case of Laudman v. Ingram, 49 Missouri, 212, the plaintiff having brought an action on the covenant against incumbrances to recover the amount of certain taxes paid by him, the defendant was allowed to prove that the taxes formed part of the consideration of the deed to the plaintiff, and that the latter had agreed to pay them. ' Harlow v. Thomas, 15 Pick. (Mass.) 70; Keith v. Day, 15 Verm. 670; Jacques v. Esler, 3 Green's Ch. (N. J.) 463 ; Burbank v. Pillsbury, 48 N. Hamp. 483, where the text was cited; Refeld v. Woodfolk, 22 Howard (U. S.), 326; Long V. Moler,'5 Ohio State K. 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 operation of the covenant. But a majority of the court are of opinion that the weight of reason and authority alike are clearly the other way; Rawle on Covenants for Title, p. 149. Nothing is more common than for parties to make and accept covenants of this kind with a full knowledge of existing incumbrances, the covenantor relying on his ability to discharge them, and the covenantee in the security which the covenant affords ; and the fact of a purchaser having notice of an incumbrance, is the very reason for his taking a covenant, within whose scope it is included." ^ Grice v. Scarborough, 2 Spears (S. C), 654; Dunn v. White, 1 Alabama, 645; Skinner B. Starner, 12 Harris (Pa.), 123. 122 THE COVENANT AGAINST INCUMBRANCES. should be expressly excepted in the deed from the operation of the covenant, in which case, of course, the covenantor will not be liable.^ The same result would be obtained if a sealed instrument to that effect were executed cotemporaneously.^ ' Potter V. Taylor, 6 Verm. 676 ; Van Renssellaer v. Keaiyey, 11 Howard (U. S.), R. 321; Foster v. Woods, 16 Mass. 116; Sanborn v. Woodman, 5 Cusbing (Mass.), 36; Shears v. Dusenbury, 13 Gray (Mass.), 292; Kinnear jj. Lowell, 34 Maine, 300 ; Freeman v. Foster, 55 id. 508 ; Aufricht v. Northrop, 20 Iowa, 62, and see the cases cited infra. Mr. Preston, in his practical instruc- tions as to the preparation of abstracts of title, after suggesting that in general they need only set forth that there are "the usual covenants for title," adds: " Sometimes the covenants are expressed more fully by showing the extent of the covenant, and consequently introducing the clause ' notwithstanding,' &c. That part of the covenant which deserves the most attention is the exception, if any, against incumbrances ; such exceptions, as often as there are any, and the incumbrances there noticed, as far as they are material to the title, should be stated in the words of the covenant, and at least so full as to show the nature and extent of those incumbrances;" Preston on Abstracts of Title, vol. i. p. 158. In Foster u. Woods, 15 Mass. 116, where the conveyance was made, ex- cepting from the covenants " all mortgages made by defendant's intestate in his lifetime, and which are duly recorded," evidence was held admissible on the part of the defendant to show that a recorded deed from the intestate, absolute on its face, was in fact accompanied with an unrecorded defeasance, so that the two constituted a mortgage, which therefore came within the exception in the cove- nant. When, however, an incumbrance has been expressly excepted from the opera- tion of the covenant, it must not be supposed that this exception has, in general, any other or greater effect than to bar a recovery against the grantor, it does not create an express liability on the part of the purchaser to discharge the incum- brance ; Belmont v. Coman, 22 New York, 488; Johnson v. Monell, 13 Iowa, 300; Aufricht v. Northrop, 20 id. 62; Drury v. Tremont Improvement Co., 13 Allen (Mass.), 171. Nor, of course, can the exception from the covenant of an incumbrance, which is invalid in itself, give it validity as against the grantor ; Melley v. Casey, 99 Mass. 241. Where, however, a lease is excepted from the covenant, the only effect of such exception is to protect the grantor ; but where the rent passes to the purchaser with the reversion, the exception obviously can- not be relied on by the grantor as a reservation of the rent to himself; Gale v. Edwards, 62 Maine, 368. " Brown v. Staples, 28 Maine, 497 ; Robinson v. Bakewell, 1 Casey (25 Pa.), 424; Morgan v. Smith, 11 Illinois, 201. In Copeland v. Copeland, 30 Maine. 499, the agreement, though reduced to writing, seems to have been unsealed. In Watts V. Wellman, 2 N. Hamp. 458, the report does not state whether the agreement by which the plaintiff was to discharge the incumbrance was or was not written ; but as he demurred to the plea which set up such an agreement in bar, he of course admitted its existence. THE COVENANT AGAINST IKCUMBRANCE9. 123 2. To avoid all question, it is better for the purchaser, also, that the incumbrance should be specially excepted, for it seems sometimes to have been thought, though never so directly decided, ^ that when the incumbrance is known to exist, the purchaser will be deemed to have taken the estate subject to it. Sugden has observed, " It sometimes happens that a purchaser consents to take a defective title, relying for his security upon the vendor's covenant. Mr. Butler remarks that where this is the case, the agreement of the parties should be particularly mentioned, as it has been argued' that as the defect in question is known, it must be understood to have been the agreement of the purchaser to take the title subject to it, and that the covenants for the title should not extend to warrant it against this particular defect." ^ But the remarks and authorities already submitted will show that no such presumption can properly arise. ' Except in that class of cases referred to supra, where the alleged incum- brance is deemed not to be such, bijt merely an incident of the estate con- veyed. ^ 2 Sugden on Vendors, 449. So in Hughes' Practice of Sales of Real Prop- erty, it is said, "It is sufficient to covenant against incumbrances generally, without any particular specification, unless the estate is subject to a known incum- brance ; then, it seems, if the purchaser intend to rely upon a vendor's cove- nants, they should be made expressly to extend to such incumbrance, otherwise it may be presumed that he took the estate subject to such incumbrance, and this should be added at the end of the covenant, as follows : ' and particularly of, from, and against a certain quit-rent, &c."' Vol. ii. p. 205 (2d ed. 1850). Savage v. Whitehead is the case cited by Sugden as the authority for the observation in the text. That case (reported 3 Chan. Rep. 14) is as follows : " Sir Thomas Savage, the plaintiff's father, sold land to the defendant's ancestors, and covenanted that they were free of incumbrances, and gave a collateral security on other lands also ; and the purchaser having entered on the security for damnifications, the bill was to have the collateral security recon- veyed ; whereto the defendants having set forth divers incumbrances on the pur- chased land and (inter alia) a lease of twenty-one years of parcel thereof, the plaintiff replied generally ; and at the hearing, a reconveyance was decreed on satisfaction of the damnification ; and upon the report the plaintiff excepted against the lease, that it was no incumbrance, because they had proved the purchaser had notice of it at the time of the purchase, whereto the defendants insisted that the notice was not issue in the case ; yet Lord Keeper Bridgman would not con- clude the infant by a slip of her counsel, in not putting it in issue upon the replication, but ordered a trial whether the purchaser agreed to take the lands, charged with the lease." The reputation of Sir Orlando Bridgman as a common- law judge gives weight to any decision he is reputed to have made in that capacity. But as a chancellor his reputation was less eminent. Roger North said of 124 THE COVENANT AGAINST INCUMBRANCES. Iiim, " He labored very much to please everybody ... if the case admitted of divers doubts, which the lawyers call points, he never would give all on one side, but either party should have somewhat to go away with ; " 3 Campbell's Lives of the Chancellors, 231. This case seems an example of the criticism, and is apparently not supported by other authority. Sir William Grant, indeed, observed in Ogilbie v. Foljambe, 3 Merivale, 621, " Even in cases where there has been a covenant against incumbrances, it has been sometimes doubted whether that covenant would extend to protect a purchaser against incumbrances of which he had express notice ; " but this was probably in reference to the case of Savage v. Whitehead. THE COVENANT FOE QUIET ENJOYMENT. 125 CHAPTER VI. THE COVENANT FOR QUIET ENJOYMENT.^ The covenants for seisin and of good right to convey are some- times spoken of as covenants for " the title," while that for quiet enjoyment has been defined to be " an assurance against disturb- ance consequent upon a defective title." ^ While in England it is sometimes called " the sweeping covenant," its place has been here, to a great extent, supplied by the covenant of warranty, which seems to be considered the principal or sweeping covenant in American conveyances. It is, however, on both sides of the Atlantic, the only covenant generally inserted in a lease ; and, in Pennsylvania at least, and perhaps elsewhere, in ground-rent deeds.^ By reference to a preceding chapter,* it will be seen that where it is intended that the covenant for quiet enjoyment should be lim- ited to the acts of the vendor or lessor, it is usual to insert after the words " that the premises shall be quietly enjoyed without interruption of the grantor or lessor or his heirs or any person or persons whomsoever," these words : " lawfully claiming or to claim by from or under him them or any of them or by or with his or their acts means consent default privity or procurement." ' For the form of this covenant, see Ch. II. pp. 25, 28, supra. ' Howell V. Richards, 11 East, 641. No better illustration of this can be found than the cases of Wilder ». Ireland, 8 Jones' Law (N. C), 88, and Parker V. Richardson, id. 452, in the former of which it was held that where a tenant for life conveyed in fee, covenanting for quiet enjoyment, there was no breach so long as his life-estate endured, while in the latter, the cesser of the life-estate and eviction by the remainder-man of course worked a breach of the covenant. ' That is to say, deeds which convey the fee, and reserve as the entire consid- eration a perpetual annual rent, redeemable or extinguishable, however, at any time by the payment of a certain principal sum by the purchaser. * Ch. n. pp. 26, 28. 126 THE COVENANT FOR QUIET ENJOYMENT. These words have been made the subject of several decisions in the English courts, which it is proper here to refer to. In a case where a lessor covenanted against any interruption of or by himself, " or any other person or persons lawfully claiming or to claim by, from, or under him, them, or any of them," and the premises were distrained upon for arrears of land-tax, due by him before the making of the lease, it was held that " tliis distress was certainly not a proceeding within the terms of the covenant. Let, suit, disturbance, or interruption by the defendant, or others claiming by, from, or under him, are different things from the injury here complained of, those words implying a claim by title from the lessor. Here the claim was against him." ^ Where, liowever,^ a fine was levied of a wife's estate, with a joint power to the husband and wife to declare the uses, which they did by reserving a power of leasing and appointing a remainder, and the husband then made a lease not warranted by the power, cove- nanting against interruptions by him or any one claiming by, from, or under him, and the lessee being afterwards evicted by the re- mainder-man by reason of tlie defective execution of tlie lease,^ Lord Mansfield said that as the husband was a necessary party to the declaration by which tlie remainder was limited, the remainder- man " certainly claimed under him, within the meaning of this covenant. Undoubtedly the husband had covenanted against his own acts, and the new limitations were created by one of his acts." So, in a later case, where one, upon his marriage, settled an ' Stanley v. Hayes, 3 Queen's Bench, 105. In Ireland v. 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 plaintiif, covenanting for quiet enjoyment. The question whether this was a disturbance " by, from, or under them,'' although argued by counsel, was not decided, as the case went off upon another ground ; see infra, Ch. XII. ^ Hurd u. Fletcher, 1 Douglas, 43. ^ On behalf of the defendant, it was contended that the declaration of appoint- ment and the fine were to be considered as one instrument ; that the husband only joined in the fine for conformity ; and the fine being the act of the wife (since persons taking under a power claim under the one who creates, and not under the one who executes it), the remainder-man took his estate from the wife and not from the husband; and, therefore, that the covenant, which was limited to the acts of the husband and those claiming under him, did not extend to the case. THE COVENANT FOR QUIET ENJOYMENT. 127 estate upon himself for life, with remainder to his first and other sons in tail, with a power to the tenant for life to grant leases for years, determinable on three lives, and afterwards granted a lease of part of the estate for the lives of three persons, and covenanted that the lessee should quietly enjoy during the said term without the interruption of the lessor, his heirs or assigns, or any other person claiming any estate, right, or interest, by, from, or under him or any of his ancestors ; and the lease not being in conformity to the power, the eldest son of the lessor, on the death of the latter, brought ejectment and evicted the lessee, whose heir brought cove- nant against the son as his father's heir ; and, on behalf of the defendant, it was urged that he could not be said to claim under his father, but in his own right as tenant in tail under the marriage settlement ; but the court were clearly of opinion ^ that the defend- ant was a person claiming under the lessor, within the meaning of the covenant for quiet enjoyment.^ So, in a recent case,^ lands were, on a man's marriage, settled in execution of a power reserved to his father, in trust to convey to his father for life, remainder to himself for life, with remainder to his first and other sons in tail, with power of leasing for twenty- one years. The settlor subsequently demised part of the premises for three lives, and covenanted for quiet enjoyment during that time, " without any let, suit, denial, interruption, or disturbance of or by him, his heirs or assigns, or any other person or persons claiming by, from, or under him or them." On the death of the lessor, his eldest son brought ejectment against and evicted the tenant, who thereupon claimed damages from the lessor's estate ; but the master, to whom the matter was referred, found that the estate was not subject to any liability by reason of the covenants. On exception to his report, it was urged, on behalf of the estate, tliat the eldest son did not claim wider the lessor, but under the creator of the power, viz., his father.* But the Master of the Rolls ' Upon the authority of Hurd v. Fletcher, supra. ^ Evans v. Vaughan, 4 Barn. & Cress. 261 ; s. C. 6 Dowl. & Ryl. 3i9. It was also held that by the words " during the said term," was understood the term which the lessor purported to grant by his deed, and not, as contended by the defendant, a term continuing only for the life of the lessor. ' Calvert v. Sebright, 15 Beavan, 156. ' There was also another ground of defence. The lessor had covenanted " so far as in his power lay, or he lawfully might or could," and it was urged that the covenant was then qualified by this clause ; see the case noticed on this point and classified with others, infra, Ch. XII. 128 THE COVENANT FOR QUIET ENJOYMENT. asked, was it not the intention that the estate should be continued to the lessee during the whole term for which it was granted, and did not the covenant affirm that the grantor had neither done nor would do any thing to prejudice the title of the lessee to that term ? If he held that the covenant only affected such estate as the lessor had, or was confined to the persons claiming under him any interest he might then have in the land, he shou,ld be giving a qualification to an unrestricted covenant. In many cases, such a covenant was a great security for the title, and he was of opinion that those words ought to be construed in their largest possible terms ; and that, when a person having a power to appoint, executes that power, the appointee does, in fact, obtain the estate " by, from, or under " the appointor, and, consequently, tliat any eviction by the appointee comes within the terms of a covenant for quiet enjoyment aa against all persons claiming " by, from, or under" the grantor. So in another recent case, the defendant assigned a term of a thousand years to trustees in trust to raise by way of mortgage a sum of money for the payment of his debts. The trustees accord- ingly assigned the term on mortgage, and the defendant subse- quently granted a lease of part of the lands, covenanting with the lessee for quiet enjoyment during the term, without the let, suit, trouble, denial, eviction, molestation or disturbance of the lessor or any person claiming by, from or under him. The lessee was afterwards compelled to give up possession to the mortgagee, and the court had no hesitation in deciding that there was a disturb- ance by one claiming through and under the defendant, within the meaning of the covenant for quiet enjoyment.^ So a recovery of dower by the wife of the covenantor is within the covenant for quiet enjoyment against all claiming from or under him.^ ' Carpenter v. Parker, 3 C. B. (N. S.) 206. The court seemed to entertain some doubt whether the facts in this case amounted to an eviction (see infra), but none whatever that they constituted a molestation and disturbance within the words of the covenant. 2 Anonymous, Godbolt, 333; Sheppard's Touch. 171. " Otherwise," it was said, " if the woman who demanded dower had been the mother of the lessor; the action would not then have lain against the heir because she did not claim by, from, or under the lessor.'' The recent case in Ohio of Tooker v. Grotenkemper, 1 Cincinnati, Sup. C.R. 88, was too plain for argument. The owner of land sub- ject to a mortgage created by a prior owner, leased it with a covenant for quiet THE COVENANT FOR QUIET ENJOYMENT. 129 It has also been held that the words " acts and means " import something actually done by the person against whose acts the cov- enant is made. Thus, where one holding under a lease which reserved a power of re-entry in case of the exercise of any trade or calling on the demised premises, made an under-lease, in which he covenanted against interruption by him, or " by or through his acts and means," and the under-lessee let the premises again to one who commenced the business of an auctioneer, and the orig- inal landlord re-entered, it was held in an action by the second lessee against his lessor, upon the covenant contained in his lease, that the eviction was not within the words of the covenant ; the word " acts " meant something done by the person against whose acts the covenant was made, and the word " means " had a similar meaning, something proceeding from the person covenanting. The eviction was not produced by any thing proceeding from the cove nan tor, but from the person in possession of the premises, and judgment was given for the defendant. ^ So in a case in Massachusetts, where the defendant covenanted " against the lawful claims and demands of all persons claiming by, through, or under him, and against no other claims and de- mands," it was held that a prior claim for taxes, assessed against the property before it came to the defendant, did not come within the covenant.^ In a very recent case in the Queen's Bench,^ a vendor had, some years before the sale of the premises by him, added a cornice and certain spouts and pipes to his house, of which the effect was to drip water upon the premises of his neighbor, and he had also opened certain windows overlooking the same. By subsequent agreement in writing between the adjoining owner and himself, he acknowledged the encroachment, covenanted to remove it upon de- mand, and to pay a nominal rent during its continuance. He then sold the premises, covenanting that, notwithstanding any act done enjoyment without molestation for himself or any one claiming under him, and it was obviously held that the eviction of the lessee by foreclosure of the mortgage was no breach of the covenant. ■ Spencer v. Marriott, 1 Barn. & Cress. 457 ; S. 0. 2 Dowl. & Ryl. 665. The authority of this case has also been affirmed very recently in Dennett v. Ather- ton, Law Rep. 7 Q. B. 316 ; infra, p. 143, where the facts were very similar. * West V. Spaulding, 11 Metcalf (Mass.), 556 ; and see Rundell v. Lakey, 40 New York, 513 ; Ingalls v. Cooke, 21 Iowa, 560 ; and supra, p. 97. " Thackeray v. Wood, 6 Best & Smith (Q. B.), 325. 9 130 THE COVENANT FOR QUIET ENJOYMENT. by him, he had good right to convey. Upon the purchaser's refusal to acknowledge the right of the adjoining owner and to pay the rent, an action was brought by the latter for the encroachment, and the purchaser having been obliged to pay the damages and costs therein, brought covenant against his vendor, and it was urged on his behalf that, but for the vendor's written acknowledg- ment, the right to the easements would have become indefeasible in time, and that his acknowledgment and payments had estopped him from setting up a title which, but for them, he might have acquired ; but the court had no doubt that judgment must be for the defendant. He had sold the estate in no worse plight than that in which he found it ; he had never acquired a right to the ease- ments, and could not have derogated in any manner from the estate which he ever possessed, by an acknowledgment of which the effect was simply to keep things in statu quo. No case had been cited to show that such a covenant meant more than a warranty against acts done by the party who might have incumbered or " made worse " his estate ; and though the court were not insensible to the hardship upon the plaintiff, it was of the opinion that no breach of the covenant had been committed, and, upon appeal, this judgment was affirmed in the Exchequer Chamber.^ The woi'd " default " was once held to extend to an arrear of quit-rent which the purchaser was obliged to discharge, although not accruing while the covenantor was owner of the premises. It was said that, if it happened to be in arrear in his lifetime, it was a consequence of law that it was of his default in respect of the party with whom he covenanted.^ But this decision seems open to much observation.^ ' 6 id. 766. 2 Howes V. Brushfield, 3 East, 491, per Lord EUenborough. ^ Sugden has said of it: "It was argued by the counsel for the vendor, and apparently on very solid grounds, that to make the vendor liable to the arrear of this rent under his covenant would be tantamount to a decision that the covenant although limited, should extend to the acts of all the world. The clear intention of the parties was that the vendor should covenant against his own acts only, and yet it should seem that the argument of the court would apply as well to a mort- gage or any other incumbrance created by a prior owner, as to an arrear of quit-rent in payment of which a former occupier made default. The reader should be cautious how he applies this decision to cases arising in practice, as it may lead him to draw conclusions not authorized by prior decisions ; " Sugden on Vendors, 490. It certainly never was imagined in Pennsylvania, where ground- THE COVENANT FOR QUIET ENJOYMENT. 131 In a subsequent case,^ one who had received from a tenant for life and his son, remainder-man in tail, a lease for ninety-nine years, underlet the premises, with a covenant for quiet enjoyment against himself and his heirs and all persons lawfully claiming under them, " or by or with his or their acts, means, consent, neglect, default, privity or procurement." The tenant in tail and his son both died, and the next remainder-man evicted the under- lessee, who thereupon brought covenant. The court said that the eviction being by a paramount title could not be brought within the covenant, unless by means of the words " neglect or default " of the covenantor, who certainly might have required his lessors, the tenant in tail and his son, to have suffered a common recovery ; but that, before a breach could be assigned on these words, it must be averred tliat the covenantor had tlie power or means of procur- ing such common recovery, and that he neglected or omitted to do so. " With such an allegation made and proved, an action of cov- enant might possibly be maintainable, but not without it. It may, indeed, show a want of discretion in the covenantor that he took leases under such a defeasible title ; but a neglect and a default seem to imply something more than the mere want of discretion rents are, and quit-rents were formerly common, that a vendor was ever held liable to his purchaser under a limited covenant against incumbrances, bj reason of arrears of ground-rent accruing for a longer period than he himself possessed the premises, — though if the covenant were a general one, it would, of course, be otherwise ; Hamond v. Hill, 1 Comyn, 180. The same author remarks that care must be taken to distinguish this case from Cavan v. Pulteney, 2 Vesey, Jr. 544, where the covenantees were evicted by reason of their covenantor not having suffered a common recovery, which would have given him a fee-simple, of which in the deed he recited that he was seised ; and the consequent eviction by the remainder-man was therefore by the cove- nantor's " default; " since " the act required to make good the title was within the compass of his own estate, and within his own power ; therefore the omission to do it was a default by him within the limit of a covenant strictly restrained to his own acts, and he assumed, as far as his own acts or defaults extended, to be seised in fee. In Howes v. Brushfield the seller assumed in like manner to be seised free from incumbrances, but he did not assume to be entitled free from incumbrances by whomsoever created ; the two cases would have been similar, had it not been in the seller's own power to have suffered the common recovery in Cavan v. Pulteney. If a third party's concurrence had been necessary, which the seller must have purchased, and that had been deemed obligatory upon hira within his covenant, then the case would have been the same as Howes v. Brushfield; " Sugden on Vendors, 491. ' Woodhouse V. Jenkins, 9 Bingham, 431 ; s. c. 2 Moore & Scott, 599. 132 THE COVENANT FOE QUIET ENJOYMENT. with respect to his own interests, something like the breach of a duty or legal obligation existing at the time ; these words, in their proper sense implying the not doing some act which he ought to have done, and which he had the power to do, and the not prevent- ing or avoiding some danger to the title, whicli he might have prevented or avoided." ^ As to the words " means, title, or procurement," in an old case, a fine having been levied of certain lands to the husband and wife and his heirs, the husband made a lease, covenanting against in- terruption or disturbance " by him or his assigns, or by any other person or persons by his means, title, or procurement." After the death of the husband, the wife ousted the lessee, who brought covenant against her as his executrix. On demurrer it was objected that the title which the wife claimed was not by any title or means derived from the lessor, but from the cognusor of the fine. But the court said, " The question is, if these words of the covenant (by any person or persons by his means, title, or procurement) are to be referred to the act, viz., the disturbance, or to the title under color of which the disturbance is made ; for if it is to be referred ' The case of Blatchford v. The Mayor of Plymouth, 3 Bingham, N. C. 691,. seems to have been principally decided upon the insufficiency of the breach as- signed, though, from expressions used by the court, it 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 the lessors should already have contracted with, or should thereafter con- tract to supply, provided that such a quantity should be left as would be suf- ficient to supply the mill for twelve hours a day, with a covenant that the lessee should enjoy without interruption 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 bringing of suit, caused and procured to be drawn oif large quantities of water, &c. But on the trial it appeared that nothing had been done since the making of the lease, but 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 evidence might have suited a breach that persons having rights under prior grants had diminished the quantity of water. If the plaintiff meant that he was injured by contracts entered into by the defend- ants, previously to the demise, the breach should have been framed accordingly ; and Tindal, C. J., remarked, that the evidence did not fall within the triple con- dition of the covenant, the terms of which were made to guard against acts of the defendants individually, acts of persons claiming under them, and acts occasioned by their means and default; see Dexter v. Manley, 4 Gushing, 14, cited infra, Ch. IX. ; Swasey v. Brooks, 30 Verm. 692. THE COVENANT FOE QUIET ENJOYMENT. 133 to the disturbance and not to the title, the entry of the wife cannot be a breach of the covenant, for the disturbance is not by means of the husband, for he is dead, nor by 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 to the title under color of which the disturbance was made, and they are to be con- strued as if it had been said that no disturbance should be made by any person by force of any title acquired by his means, and so it is a breach of the covenant." ^ But even where the words of the covenant purport to assure the purchaser from disturbance on the part of the grantor, or any person or persons whomsoever, yet the generality of this assurance is subject to certain well settled qualifications. 1. Such a covenant is not broken by tortious disturbances. It is true that in a few old cases it seemed to have been thought that a covenant thus framed extended to all interruptions and dis- turbances whatsoever, whether lawful or tortious ; ^ and although the oldest authorities were directly in opposition to this doctrine,^ ' Butler V. Swinerton, 2 RoUe, 286 ; Palmer, 339 ; Cro. Jac. 657. The re- port in Cro. Jac. is less clear and full than in either RoUe or Palmer, and of these the report in the former is the better. Sugden has said of this case : "It may be proper to mention that the case of Butler v. Swinerton, which (to borrow an expression of Lord Kenyon's) is the magna charta of the liberal construction of covenants for title, is also stated in Sheppard's Touch. 171, which goes on to state, ' and so it is also if A purchase land of B, to have and to hold to. A for life, the remainder to C the son of A in tail, and after A doth make a lease of this land to D for years, and doth covenant for the quiet enjoying, as in the last case, and then he dieth ; and then C doth oust the lessee, in this case this was held no breach of the covenant,' and for this position Swan's case, M. 7 and 8 Eliz. is cited, and no reference is made to any other report of the case. Now this case is in direct opposition to the case of Butler v. Swinerton ; but from other reports of Swan's case. Mo. 74, pi. 204; Dy. 257, pi. 13; Bendl. 138, pi. 208 ; and And. 12, pi. 25, it appears that there was no actual covenant in the lease, but merely a covenant in law on the words 'concessit et demisit,'' and, therefore, the judges thought the action did not lie because the covenant deter- mined with the estate of the lessee; " 2 Sugden on Vendors, 517. As to the covenants implied from the words concessit et demisit, see infra, Ch. XII. ^ See Mountford v. Catesby, 3 Dyer, 328, and the cases therein referred to. ^ Brooke's Ab. Garranties, pi. 1. "If one lease for years and covenant to warrant the land, and the lessee be ousted by wrong, he shall not have covenant ; otherwise if it be -by elder title,'' citing Year Book, 26 Hen. VIII. 3, a miscita- 134 THE COVENANT FOE QUIET ENJOYMENT. the law seems not to have been settled until the case of Hayes v. Bickerstaff.i In that case, the defendant, being possessed of a long term of years in certain woodlands, leased them to the plaintiff for a portion of the term, with a covenant that the latter should quietly enjoy the same, " without any impediment, distui-bance, eviction, or interruption whatsoever from either the defendant, his executors, administrators, or assigns, or any other person." The defendant subsequently granted his reversion in the term, and the grantee, notwithstanding the plaintiff's attornment to him, entered upon the lands and deprived the latter of his possession. The plaintiff then brought this action on the above covenant. But it was decided that the covenant, however generally expressed, must be under- stood as applying merely to the acts of those claiming by title ; because, first, the grantor does not expressly covenant against tor- tious acts of strangers ; secondly, it would be unreasonable that he should do so, as he could neither foresee nor prevent them ; thirdly, the law gives the covenantee a remedy against the wrong-doer ; fourthly, the covenantee might thus have a double remedy and satisfaction, one against his covenantor, and the other against the wrong-doer ; fifthly, it would enable him to injure the covenantor by colluding with a stranger to make a tortious disturbance ; and, sixthly, because the express words of the covenant were that the covenantee should lawfully enjoy the premises without the let or hindrance of the covenantor or any other person. These unanswerable reasons have since been consistently acqui- esced in, and the case has long been recognized on both sides of the Atlantic as decisive authority.^ tion for 26 Hen. VIII. p. 11. So in Year Book, 22 Hen. VI. (Pasch.) pi. 26, " If a lease be made for a term of years by deed, so that the lessor is chargeable by writ of covenant, if a stranger who has no right oust the termor, yet he shall not have a writ of covenant against his lessor. But if he to whom the right belongs oust the termor, then he shall have writ of covenant against his lessor." ' Vaughan, 118; s. c. but not s. p., 2 Modern, 34. ^ Tisdale v. Essex, Hobart, 34 ; Wotten v. Hele, 2 Saunders, 178, n. ; Nokes V. James, Cro. Eliz. 675; Lewis v. Smith, 9 Mann. Gr. & Scott, 610; Greenby V. Wilcocks, 2 Johns. 1 ; FoUiard v. Wallace, id. 402 ; Kelly v. Dutch Church, 2 Hill (N. Y.), Ill; Gardner v. Keteltas, 3 id. 330; Meeks v. Bowerman, 1 Daly (N. Y.), 100; Brick v. Coster, 4 Watts & Serg. (Pa.) 499; Spear v. Allison, 8 Harris (Pa.), 200 ; Schuylkill R. R. v. Schmoele, 7 P. F. Smith (Pa.), 273 ; Moore v. Weber, 29 Legal Intelligencer (August 16, 1872), 260 ; Yancey V. Lewis, 4 Hen. & Munf. (Va.) 395 ; Wilder v. Ireland, 8 Jones' Law (N. C), 88; Rantiu v. Robertson, 2 Strobhart (S. C), 366; Beebe v. Swartwout, 3 THE COVENANT FOR QUIET ENJOYMENT. 135 The qualification, however, limiting the disturbances to those made under color of title, as distinguished from tortious interrup- tions, has three equally well settled exceptions. a. The covenant extends to all acts of the covenantor himself, whether tortious or otherwise.^ It is obvious that the acts of the servants or agents of the cove- nantor are, if committed at his command, as much within the scope of the covenant as if they were his own acts.^ Gilman (111.), 180 (see a very elaborate argument of counsel and opinion in that case as to the nature of the covenant for quiet enjoyment generally) ; Da- vis V. Smith, 5 Georgia, 274 ; Surget v. Arighi, 11 Smedes & Marsh. (Miss.) 96 ; Gleason v. Smith, 41 Verm. 293 ; Playter v. Cunningham, 21 Cal. 232 ; Branger V. Manciet, 30 id. 624, citing the text ; Hoppes v. Cheek, 21 Arkansas, 585 ; Noonan v. Lee, 2 Black (U. S.), 507. In Meeks b. Bowerman, supra, the tenant alleged that the covenant for quiet enjoyment had been broken by reason of the house demised having previously, with the landlord's assent, been used as a brothel, and that he and his family had been so annoyed by lewd persons call- ing there, that they could not peaceably enjoy the premises, and had, therefore, been evicted therefrom, but it was held that this was no breach. " The acts of strangers not claiming under any title cannot in any sense be regarded as a breach of this covenant on the part of the landlord." So where a lessee finds the premises in possession of a former tenant, whose term has expired, it is held that the covenant does not extend to compel the landlord to give possession ; the wrongful holding over of the former tenant is no breach ; Gardner v. Keteltas, supra ; Howard v. Doolittle, 3 Duer, 464. And the law (as to tortious disturb- ances) applies equally whether the covenant is express or implied ; Gardner v. Keteltas, 3 Hill (N. Y.), 330. ' Cave V. Brookesby, W. Jones, 360 ; Andrews' case, Cro. Eliz. 214 ; Corus V. , id. 644; Crosse v. Young, 2 Shower, 425; Lloyd *. Tomkies, 1 Term, 671 ; Wotten v. Hele, 2 Saund. 180, n. ; Seaman & Browning's case, 1 Leonard, 157 ; Sedgwick v. HoUenback, 7 Johns. 376 ; Mayor of New York V. Mabie, 3 Kernan (N. Y.), 156; O'Keefe v. Kennedy, 3 Gushing (Mass.), 325 ; Levitzky v. Canning, 33 Cal. 308. (In Crosse v. Young, Shower reports a long argument of his own on this point, " which I had prepared to urge, but was prevented by a ready judgment for the plaintiff by the whole court.") Thus in Seaman & Browning's case, supra, one Marshal sold land to the plain- tiff with a covenant for quiet enjoyment ; the breach assigned was that Marshal entered and cut certain elm-trees, and this was held to be a breach of the cove- nant. ^ Seaman & Browning's case^ 1 Leonard, 157. In a case in Mississippi, Sur- get w. Arighi, 11 Smedes & Marsh. 96, the breach laid in an action on a cove- nant for quiet enjoyment, brought by a lessee against his lessor, was the destruction of the premises and expulsion of the tenant by a mob, " moved by exasperation and excitement by them entertained towards the defendant." It was urged for the plaintiff that this was equivalent to an eviction by the lessor 1-36 THE COVENANT FOB QUIET ENJOYMENT. It is said, however, tliat even the acts of the covenantor himself must be done under assumption of right, as distinguished from mere trespasses.^ Thus it seems to have been thought that if a landlord should enter upon the demised premises for the purpose of sportiug,^ the tenant could not maintain covenant for such an act ; and in New York this was expressly decided where the land- lord entered for the pm-pose of making repairs.^ But where one sold a house with a covenant that the purchaser should enjoy it without the lawful let of the grantor, and the latter locked up a pew appertaining to the house, it was held that this was as strong an assertion of right as could well be imagined.* So in a recent case in New York, where the corporation had leased a certain wharf, it was held that the entry upon the premises by the agents of the corporation, and the assumption by them of the control of the berths and locations which ships were to occupy thereat, was a breach of the implied covenant for quiet enjoyment in the lease, — that if the character of the act were such as reasonably to show that the corporation acted under an assumption of title, the action could be sustained.^ 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 view to that par- ticular result. This was the necessary consequence of the principles stated in the authorities in regard to covenants for quiet enjoyment. The language em- ployed in the covenant in Dudley v. Foliott (infra, p. 142) was even broader than in the present case ; and yet it was held only to be a covenant for quiet enjoyment. It was not sufficient that the mob were actuated by feelings of malice or revenge against the defendant ; " and unless, therefore, it should appear that the acts of the mob were constructively those of the lessor himself, the case would fall within the rule that the covenant did not extend to the tortious acts of others ; Jones v. Worley, 21 La. An. 404. ' Crosse V. Young, 2 Shower, 425 ; Lloyd v. Tomkies, 1 Term, 671 ; Wotten V. Hele, 2 Saunders, 180, n. ; Sedgwick v. HoUenbeck, 7 Johns. 376 ; O'Keefe V. Kennedy, 3 Gushing (Mass.), 325; Levy ». Bend, 1 E. D. Smith (X. Y.), 169. ^ Per Ashhurst, J., in Lloyd v. Tomkies, 1 Term, 673, and per Ld. Ellen- borough in Seddon v. Senate, 13 East, 72. ^ Doupe V. Genin, 1 Sweeny (N. Y.), 30. ■■ Lloyd V. Tomkies, supra. '* Mayor of New York v. Mabie, 3 Kernan, 151. The question whether the acts complained of as a disturbance 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 ordinances upon the subject, did not arise upon the evidence THE COVENANT FOR QUIET ENJOYMENT. 137 In Curtis v. Deering,^ land had been conveyed in mortgage with covenants for seisin and of warranty to the mortgagee, who neg- lected to record the mortgage until after the same premises had been conveyed in fee by the mortgagor to a purchaser without notice, who, by recording his deed, took the title clear of the mort- gage. In an action on the covenant of warranty brought against the mortgagor, it was urged that the covenant extended only to elder and better titles, — to those then existing and not to those sub- sequently acquired ; ^ and the court held that a general covenant against all claims had been limited by construction of law to lawful claims, because the law was a sufficient protection against wrong-doers, but all lawful claims, except such as were derived from the plaintiff, were within the terms and should be within the operation of the covenant. There was no propriety in applying the rule, that there should be proof of elder title, to evictions founded upon the subsequent acts of the covenantor which could not be resisted. And in answer to the obvious objection that the defend- in this case, and was expressly reserved. " It was not intended in that case," it was very recently said in Doupe v. Genin, 1 Sweeny (N. Y.), 30, " to ex- tend the force of the covenant beyond a protection to the lessee against the un- lawful entry of the lessor himself, and it is clearly intimated that the entry must be under an assumption or claim of title to the premises. Otherwise, it would be a mere trespass and not a breach of the covenant." The law upon this point is thus stated by Piatt: " In a case in RoUe's Abridgment (Davie v. Sachever- ell, p. 429, pi. 7), it is laid down that a covenant by J. S. that his lessee shaU enjoy the lands peaceably and quietly, without any laioful let, disturbance, ejectment, or molestation of the said J. S., is not broken by his entry on the lessee as a mere trespasser, and without any lawful title. Subsequent decisions, however, have taken a distinction between a tortious entry by a stranger and by the covenantor himself; and it is now admitted law that although the cove- nant only stipulates for quiet enjoyment, without the lawful interruption of the covenantor, his heirs or assigns, yet he cannot avail himself of the subterfuge that his entry was unlawful, and he, therefore, a trespasser, to avoid the conse- quences of his own wrong; for, as against the party himself, the court will not consider the word lawful, nor drive the covenantee to an action of trespass, when by the general implied covenant in law the vendor had engaged not to annul his own deed, either by a rightful or an illegal entry ; " Piatt on Cove- nants, 318. ' 12 Maine, 499. ^ Such is undoubtedly the law. " All the judges agreed that when a man bound himself and his heirs to warranty, they are not bound to warrant new titles of action accruing through the feoffee, or any other, after the warranty made, but only such titles as are in esse at the time of the warranty made ; " Grenelife v. W , Dyer, 42 6. 138 THE COVENANT FOE QUIET ENJOYMENT. ant, being the owner of the equity of redemption, and, therefore, having title to the land, had a right to convey, and, in so doing, had not broken his covenant, it was held that, as against the mortgagee, a conveyance in fee, without any saving, being made by his tenant at will, was a disseisin at the election of the former, and that his conveyance, against the mortgagee, was an unlawful act.^ Such a decision must, it is presumed, be supported by the peculiar eifect given in that State to the subsequent conveyance, for the result was to make the defendant liable for the plaintiff's neglect to record his mortgage. Apart from some local law, noth- ing is more common than a conveyance of what, technically called an equity of redemption, is at this day, practically, the legal estate, and if such a conveyance is made in good faith, to a purchaser without notice of the mortgage, and who takes clear of it because it has not been recorded, there would seem no principle on which a liability under the covenants for title could rest. In a late case in Ohio, the facts were the same as in Curtis v. Deering, except that the defendant had conveyed a tract of land in fee, with a cove- nant of warranty, to purchasers, who had neglected to record their deed ; the land was afterwards levied upon and sold as his property to a purchaser, who, recording his deed, took a valid title, and to whom the defendant subsequently executed a release. Upon these facts it was elaborately urged that the defendant was liable on his covenant of warranty, but the court held that, although the defend- ant might doubtless be liable in some form of action, the remedy was not to be sought in an action on the covenant, and the decision in Curtis v. Deering, on which the plaintiff had strongly relied, was deemed to be not only unsupported by authority, but directly con- trary to it.^ And in a very recent case in Pennsylvania, it was said, ' This decision was cited in Maeder v. City of Carondelet, 26 Missouri, 114, where the facts were somewhat similar, but there was an express provision in the lease that nothing therein contained should be construed to imply a cove- nant for quiet enjoyment, and the court seem to have considered that, had it not been for this provision, the case would have been governed by Curtis v. Deer- ing. In Lukens v. Nicholson, 4 Philadelphia R. 22, it was held that the assignee of a rent reserved on a conveyance in fee, whose estate is defeated by his own failure to put the deed of assignment on record, and the subsequent execation of a mortgage by the assignor, could recover damages from the latter in an action on a covenant of special warranty, and the case of Curtis v. Deering was approved. See the opinion of the court, infra, Ch. VIII. ' Wade V. Comstock, 11 Ohio State R. 71. The court referred also to a THE COVENANT FOR QUIET ENJOYMENT. 139 " No authority has been or can be cited to support the position that a deed or will subsequently made by a grantor is itself a breach of the covenant of warranty contained in his [prior] con- veyance, more especially when such deed or will is a lawful act.^ b. If the covenant be expressly against the acts of a particw- larly named person, it will not be restrained to his lawful 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.^ distinction noticed in several of the cases between such acts of the covenantor as were within the express words of a covenant for quiet enjoyment, and those which come within the general scope of a covenant of warranty, as to which see infra, p. 144. An old case may be here noticed which at first sight seems to support the de- cision in Curtis v. Deering. In Sir Perall Brocas' case, cited Touchstone, 170, and unreported elsewhere (see infra, Ch. X.), it is said: " If I bargain and sell land, by deed indented,' to B, and before the deed is enrolled I grant the same land to C, and covenant that I am seised of a good estate of it in fee, and after the deed is enrolled ; in this case the covenant is broken ; " but it will be seen that the deed enrolled (under the statute of Enrolments, 27 Hen. VIII. c. 16, see 2 Black. Com. 338) was the deed to B, whose enrolment (within the six months required by the act) caused the breach of the covenant con- tained in the deed to C, which is the only covenant referred to in the case. 1 Scott V. Scott, 2 Pittsburg Leg. Jour. (N. S.) (Jan. 81, 1872) p. 91, per Sharswood, J. ^ Thus, in the old case of Foster v. Mapes, Cro. Eliz. 212, the defendant covenanted to save the plaintiffs harmless from one Blount, and the plaintiffs, in an action on this covenant, averred as a breach that "B. had entered upon the premises and put them out." The breach was held to be well assigned, "for," said the court, " when the covenant is to save them harmless against a person certain, he ought to defend him against the entry of that person, be it by droit or tort, for be is damnified if he be disturbed though by wrong." In Nash v. Palmer, 6 Maule & Selw. 374, Lord EUenborough said: "The rule has been correctly stated at the bar, that where a man covenants to indem- nify against all persons, this is but a covenant to indemnify against lawful title. And the reason is, as it regards such acts as may arise from rightful claim, a man may well be supposed to covenant against all the world ; but it would be an ex- travagant extension of such a covenant, if it were good against all the acts which the folly or malice of strangers might suggest, and therefore the law has properly restrained it within its reasonable import, that is, to rightful title. It is, how- ever, different where an individual is named, for there the covenantor is pre- sumed to know the person against whose acts he is content to covenant, and may therefore reasonably be expected to stipulate against any disturbance from him, whether from lawful title or otherwise." And where, in a covenant for quiet enjoyment, an exception as to the acts of certain specified persons is introduced, 140 THE COVENANT FOR QUIET ENJOYMENT. e. Where the plain intention of the covenant, manifested by- express words, is to protect the covenantee against claims of every description, as where it is against all claiming or pretending to claim. 1 2. Nor will a covenant against disturbances, " by any persons whomsoever," extend to acts of sovereignty. a. It will not extend to the exercise by a State of the right of eminent domain. Thus where, in an early case in Massachusetts, a lease had been made with a covenant for quiet enjoyment, upon which the lessee, being evicted by the municipal corporation who opened a street through the demised premises, brought covenant, it was held that the action could not be maintained, as this was not such an interruption as should properly come within the scope of the covenant.^ And the same decision was after- wards made, with more elaboration, in a case in Pennsylvania ; ^ the covenant will apply to the acts of all others not included in the exception ; as in Woodroff M. Greenwood, Cro. Eliz. 517, where a tenant in tail, with rever- sion to the Queen in fee, leased for twenty-one years, covenanting that the lessee should enjoy it against all persons without the interruption of any besides the Queen, her heirs and successors, existentibus regibus vel reginis Anglim, and the Queen granted the reversion to another, who, upon the death of the tenant in tail without issue, evicted the lessee, who brought covenant and obtained judgment, " for none are excepted besides the Queen and her successors, and not her patentee ; " Perry v. Edwards, 1 Strange, 400 ; Fowle v. Welsh, 1 Barn. & Cress. 29 ; Patton v. Kennedy, 1 A. K. Marsh. (Ky.) 389 ; Pence v. Duval, 9 B. Mon- roe (Ky.), 49. ' Chaplain v. Southgate, 10 Modern, 383. The defendant having leased a farm to the plaintiff, and covenanted that he should quietly enjoy the closes therein contained against all claiming or pretending to claim any right in them, the breach assigned was, " that one having or pretending to have a claim time out of mind did enter upon the said closes,'' which was held by the court to be sufficient, as " the words of the covenant did extend to all interruptions whatso- ever, and so was the plain intent and meaning of the parties ; for, if it was to extend to legal claims only, then would the tenant be put under the hardship of trying the right for the landlord ; which was the very thing the tenant plainly designed to prevent by this covenant." '^ Ellis V. Welch, 6 Mass. 246. -■" Frost V. Earnest, 4 Wharton (Pa.), 86. It was then said, " The covenant for quiet enjoyment is designed to indemnify the vendee for a lawful eviction by reason of defect of title in the vendor and any disturbance thereupon. . . . But if the vendee lose the premises, not because of defect of title in the ven- dor, but 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 THE COVENANT FOR QUIET ENJOYMENT. 141 and the law may be considered as so settled there and else- where.^ b. Nor to any other lawful acts of sovereignty. This has been shown in a recent curious class of cases in the United States, arising from the liberation of slaves under the Emancipation Proc- lamation of 1865, the first of which was presented in Missouri, where one having sold a slave with a covenant that she was a slave for life, it was held that the covenant was not broken by the emancipation,^ and decisions to the same effect have been 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 any thing ; for the vendee's remedy in that case does not depend on the vendor's having received any compensation ; it arises by the mere fact of the eviction and loss of the property. The case then would present the aspect of a vendee who, on eviction, is entitled to 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. This cannot be ; the covenant never was designed for such an event, and is not appli- cable to it. It resembles the case of eviction of the vendee by a third person who is a tort-feasor. He may have his action against such tort-feasor ; and therefore it has been decided that the vendor is not liable on this covenant. The same reason applies when the vendee is ousted by the sovereign power of the State under its right of eminent domain, or under reservations in the first settle- ment of the country, exercised according to the constitutional injunction of compensating every man whose property is taken for the public use. The remedy of the vendee is to look to the legislative provisions made for his indem- nity, and not to the covenant for quiet enjoyment, which was introduced into conveyances for purposes entirely different." ' Folts V. Huntley, 7 Wendell (N. Y.), 210; Dobbins v. Brown, 2 Jones (Pa.), 75; Bailey v. Miltenberger, 7 Casey (Pa.), 37; Schuylkill R. R. v. Schmoele, 7 P. F. Smith (Pa.), 273; Dyer v. Wightman, 16 id. 427; Brimmer V. The City, 102 Mass. 19. ^ Phillips V. Evans, 38 Missouri, 305. " When the vendor sold his slave," said Wagner, J., who delivered the opinion, " with a covenant that she was a slave for life, he intended nothing more than that the law at that time made her a slave for life. The covenant extended to all defects in the title, and was in- tended to protect the purchaser against them. But it cannot be presumed that the sovereign act or authority of the government, by which all title or property in slaves was totally annihilated, was in the contemplation of the parties. The emancipation of the slaves by the sovereign act of the people was neither an- ticipated nor thought of when the slave was sold in this case. It was not in the minds of the parties, nor embraced within the purview of the warranty. In case of the sale and conveyance of real estate, when the vendor warrants the title arid covenants for peaceful and quiet enjoyment, should the property be swal- lowed up and destroyed by an earthquake, it will not be contended that destruction would work a breach of the " covenant rendering the seller respon- 142 THE COVENANT FOR QUIET ENJOYMENT. made in all of the Southern States in which the question has been presented,! and very recently the Supreme Court of the United States has recognized and affirmed their correctness.^ And where the loss is consequent upon the exercise of the act of a sovereign de facto, it will be considered as not coming within the scope of the covenant, for one of two reasons : either it is the lawful act of the sovereign, and, therefore, comes within the exception we have just noticed, or it is a mere tortious act, and, therefore, comes within the general principle.^ sible. We are unable to distinguish the case supposed from the one presented here at bar. The ordinance of emancipation caused a complete annihilation or destruction of all property in slaves. It could not be controlled by the parties, nor was it contemplated by them ; and clearly the covenant to warrant and de- fend the title to the negro, and that she was a slave for life, cannot, by any just construction, be made to apply to such an occurrence." ' Fitzpatrick v. Hearne, 44 Alabama, 171; Haskill v. Sevier, 25 Arkansas, 152; Willis u. Haliburton, id. 173; Walker v. Gatlin, 12 Florida, 9; Hand v. Armstrong, 34 Georgia, 232 ; Bass v. Ware, id. 386 ; Porter «. Ralston, 6 Bush (Ky.), 665; Whitworth v. Carter, 43 Miss. 61; Mayfield v. Barnard, id. 270. The case of Steele v. Richardson, 24 Arkansas, 365, was decided upon a different ground. " Osborn U.Nicholson, 13 Wallace (U. S. S. C), 655. "Emancipation and eminent domain," said Mr. Justice Swayne, who delivered the opinion of the court, " work the same result as regards the title and possession of the owner. Both are put an end to. Why should the seller be liable in one case and not in the other ? We can see no foundation, in reason or principle, for such a claim. . . . All contracts are inherently subject to the paramount power of the sovereign, and the exercise of such power is never understood to involve their violation, and is not within that provision of the national Constitution which forbids a State to pass laws impairing their obligation. The power acts upon the property which is the subject of the contract, and not upon the contract itself." ' Thus in Dudley v. FoUiott, 3 Term, 684, land had been conveyed by the defendant to the grantor of the plaintiff with covenants for seisin and of quiet en- joyment "against all and every person or persons whomsoever," and the plaintiif assigned as a breach that, at the time of the conveyance by the defendant, the land had been confiscated during the Revolution by the State of New York. The plaintiff argued, first, that the defendant had no title to the premises, they hav- ing been lawfully confiscated by the State, whose independence, as a part of the Union, had subsequently been recognized ; and, secondly, that (under the author- ity of Mountford v. Catesby, supra, p. 133) the covenant extended not only to acts done by persons having or claiming title, but to an eviction even by a wrong- doer ; but the court, " having no doubt about the law as it respected the first question, and thinking it would lead to the discussion of improper topics, would not permit it to be argued. And as to the second question, they thought it equally clear ; for even a general warranty, which is conceived in terms more THE COVENANT FOR QUIET ENJOYMENT. 143 At one time there seems to have been some doubt whether a disturbance or interruption interfering with the title and posses- sion of the land by reason of a suit in equity came within the scope of a covenant for quiet enjoyment against disturbances generally .^ This question is now well settled in the affirmative ; ^ but where the proceeding in equity interferes only with a particular mode of enjoyment of the land, or part of it, but not with the title or pos- session, it is not a breach.^ Sugden has remarked, " It is custom- ary to expressly extend covenants for title to equitable charges, disturbances, &c." * With like caution, Mr. Preston has ob- served,^ that it is also usual to insert the words, " without any lawful let," &c., so as to preclude the possibility of question as to the extent of the covenant. The law is now, however, so well settled as to both these points, as to render these precautions ap- parently unnecessary, and in the more modern conveyances they are not observed. As it thus appears that the scope of the covenant for quiet en- joyment depends, in so many cases, upon the particular words of its expression, it will be perceived that we cannot lay down a uni- versal rule as to what will cause its breach. It has been con- stantly confounded with the covenant of warranty ; so much so, that In some cases a covenant has been spoken of as a covenant for quiet enjoyment, while it was in fact a covenant to warrant and defend, and vice versa.^ general than the present covenant, has been restrained to lawful interruptions," and judgment was given for the defendant. So, in Watkins v. DeLanoey, 4 Douglas, 354, where one in England sold certain real estate in New York, which he had inherited from his father, who was attainted and his property confiscated, it was said by Lord Mansfield : " The defendant covenants that he is seised in fee of the lands in question by all the laws in being, but he does not covenant against a rebellion or a revolution by an armed force. There is no color for it." ' Selby V. Chute, 1 Brownlow, 23 ; see, however, the remark made in Hunt V. Danvers, T. Raymond, 371, as to the report of this case; and in Winch's En- tries, 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 when Selby V. Chute was decided. ' Calthorp v. Heyton, 2 Modern, 54 ; Hunt v. Danvers, T. Raymond, 370. ' Morgan v. Hunt, 2 Ventris, 213 ; Dennett v. Atherton, Law Rep. 7 Queen's Bench, 326. * Sugden on Vendors, 488. ' Shep. Touch. 166, Preston's ed. • Martin v. Martin, 1 Dev. (N. C.) 413 ; Coble v. Wellborn, 2 id. 388. In 144 THE COVENANT FOR QUIET ENJOYMENT. Nothing is more generally or more truly said than that " an eviction is necessary to a breach of the covenants for quiet enjoy- ment or of warranty." The exceptions are either where the former covenant is so expressed as to have a wider scope than the latter,^ or where some peculiar local construction is given to these cove- nants, or one of them.^ The question, " what is eviction ? " will, of course, be considered irrespective of these exceptions. The original and technical meaning attached to the word evic- tion certainly was an expulsion by the assertion of a title paramount and by process of law ; ^ but it has been long since such an inter- pretation has been given to the term in England, for in a case in the King's Bench, at tlie close of the last century, where a declara- tion on a covenant for quiet enjoyment was demurred to, because it did not show an ouster " under any legal process of law," the report says that " this was abandoned, the precedents being against it." * Ingersoll v. Hall, 30 Barbour's S. C. R. (N. Y.) 392, the covenant was a mixture of both. ' As, for example, where the covenant for quiet enjoyment stipulates against "any let, suit, interruption, disturbance," &c. Such a distinction was noticed by Gibson, C. J., in Stewart v. West, 2 Harris (Pa.), 338. " A covenant for quiet enjoyment," said he, "which resembles the modern covenant of warranty, differs , from it in this, that the former is broken by the very commencement of an action on the better title." So the erection of a gate in a lane, through which the plain- tiff had a right of way, was held to be a breach of a covenant that the defendant would do nothing to molest, hinder, or prevent him in the quiet possession or enjoyment of the lands ; Andrews v. Paradise, 8 Modern, 318 ; so of an interrup- tion of a way of necessity through a house ; Morris v. Edgington, 3 Taunton, 24 ; the building of a house on part of the premises ; Kidder v. West, 3 Levinz, 167, &c. ' Such as seems still to prevail in South Carolina, as it formerly did in Ohio, with respect to the covenant of warranty ; see infra, Ch. VIU. ' See the various dictionaries. '' Foster v. Pierson, 4 Term, 617. In Upton v. Townend, 17 Com. Bench, 30, the court, in speaking of the eviction of a tenant by the landlord, said: "It is extremely difficult at the present day to define with technical accuracy what is an eviction. Latterly, the word has been used to denote that which formerly it was not intended to express. In the language of pleading, the party evicted was said to be expelled, amoved, and put out. The word eviction, from evincere, to evict, to dispossess by a judicial course, was formerly used to denote an ex- pulsion by the assertion of a title paramount, and by process of law. But that sort of eviction is not necessary to constitute a suspension of the rent, because it is now well settled that if the tenant loses the benefit of the enjoyment of any portion of the demised premises, by the act of the landlord, the rent is thereby THE COVENANT FOE QUIET ENJOYMENT. 145 111 rather aa early case in New York, however, it was once said, tliat " the previous cases in that State, taken together, show that to constitute an eviction by a stranger, tliere must be a disturbance of the possession under a paramount title by due process of law," and although, in the case before the court, the dispossession had been an actual one, and made under a paramount and not a tor- tious title, a plea was held liad " for not showing process of law to warrant the expulsion;"^ and in a subsequent case in the same State a similar position was taken.^ But the cases thus referred to^ did not bear out the decision, for the term " lawful eviction," when used by them, was so employed as distinguished from tortious eviction, to wliich, of course, the covenants for title do not extend ; * and more recently decisions in New York, as well as elsewhere, have settled that legal process is not necessary to an eviction.^ suspended. The term ' eviction ' is now popularly applied to every class of expulsion or amotion. Getting rid thus of the old notion of eviction, I think it may now be taken to mean this, — not a mere trespass and nothing more, but some- thing of a grave and permanent character done by the landlord with an intention of depriving the tenant of the enjoyment of the demised premises. If that may in law amount to an eviction, the jury would very naturally cut the knot by find- ing whether or not the act done by the landlord is of that character, and done with that intention." ■ Lansing v. Van Alstyne, 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 in 1829. " Webb V. Alexander, 7 Wendell (N. Y.), 285. ^ These cases were, Greenby v. Wilcox, 2 Johns. (N. Y.) 1 ; Waldron p. McCarty, 3 id. 473 ; Kortz v. Carpenter, 5 id. 120 ; Vanderkarr v. Vanderkarr, 11 id. 122 ; and Kerr u. Shaw, 13 id. 236. ■■ Supra, p. 133. ^ Greenvault v. Davis, 4 Hill (N. Y.), 645. " Upon principle," said Bronson, J., " I can see no reason for requiring an eviction by legal process. Whenever the grantee is ousted of the possession by one having a lawful title to the prop- erty, paramount to the title of the grantor, the covenant of warranty and for quiet enjoyment are broken, and the grantee may sue.'' So in Cobli^. Wellborn, 2 Devereux (N. C), 390 ; Grist v. Hodges, 3 id. 200; Hagler v. Simpson, Bus- bee's Law R. (N. C.) 386 ; Parker v. Dunn, 2 Jones' Law R. (N. C.) 204; Leary v. Durham, 4 Georgia, 593; Booth v. Starr, 5 Day (Conn.), 282; Funk V. Creswell, 5 Clarke (Iowa), 86. In fact, all the cases cited under the ensuing heads virtually overrule such a position. In Stewart v. Drake, 4 Halsted (N. J.), 141, the court said that " the cases cited in the argument from Johnson's Re- ports, as a whole, decide that there must be a disturbance in, or deprivation or cessation of the possession, by the prosecution and operation of legal measures ; " but the point decided in the case was that where land, subject to a mortgage, had been sold with a covenant against incumbrances, the mortgage foreclosed, and 10 146 THE COVENANT FOE QUIET ENJOYMENT. It follows that any actual entry and dispossession, adversarily and lawfully made under paramount title, will be an eviction. Such an entry could, at common law, be made by the holder of the paramount title in cases of abatement, intrusion, or disseisin,^ while it could not be made in cases of discontinuance or deforcement.^ And whenever, at the present day, such a right is exercised,^ it is considered to have all the force and effect of a dispossession under legal process.* Nor is it, in general, necessary that the purchaser should await his actual dispossession by the holder of the paramount title, but he may, under certain circumstances, surrender the possession to the latter, thereby creating what is sometimes called an ouster in pais.^ Thus, in an early case in Massachusetts,^ the defendant's testator conveyed certain land to the plaintiff with a covenant of warranty against all lawful claims. To part of this land the testator had no title, and the real owner thereof entered into possession of the same with the consent of the plaintiff, who withdrew therefrom. " It was contended," said Parsons, C. J., who delivered the opinion of the court, " that here there was no legal evidence of an ouster, because the dispossession took place with the consent of the tenant in possession. It is true that, if the tenant consents to an unlawful ouster, he cannot afterwards be entitled to a remedy for such ouster. the property bought by the tenant of the vendee, these circumstances amounted to a legal eviction. See infra, p. 161, et seq. ' And even in these cases the right of entry, which was never assignable at law, Co. Litt. 314 a, might be tolled or taken away by descent cast ; Litt. § 385, 413. This has been altered by statute 3 & 4 Will. IV. c. 27, § 39. ' Where the original entry being lawful, and an apparent right of possession thereby gained, that right was not allowed to be defeated by the mere act or entry of the claimant; 3 Blacks. 175. ' As, for^example, by a mortgagee who, in Massachusetts, Maine, Rhode Island, New Hampshire, and some other States, has, by statute, a right of entry under certain circumstances. * Gore V. Brazier, 3 Mass. 540 ; Sprague v. Baker, 17 id. 590 ; Smith v. Shep- ard, 15 Pick. (Mass.) 147 ; Rickert u. Snyder, 9 Wendell (N. Y.), 422. ' The earlier New York cases did not seem to recognize this. Thus, in Kerr V. Shaw, 13 Johns. 238, supra, it was said : " The covenantee ought not to stop short of an actual ouster ; if he means to rely upon his covenant, he has no right to make any compromise until an actual eviction has been shown." But the law has not since been held so strictly. • Hamilton v. Cutts, 4 Mass. 350. THE COVENANT FOE QUIET ENJOYMENT. 147 But an ouster may be lawful, and in that case the tenant may yield to a dispossession without losing his remedy on the covenant of warranty. . . . There is no necessity for him to involve himself in a lawsuit to defend himself against a title wliich he is satisfied must ultimately prevail ; " ^ and judgment was given for the plaintiff. " The defendant had an undoubted right," it was said in a case in New Hampshire, " upon being satisfied of the invalidity of his title, to abandon the possession of the premises, and thereby to avoid the necessity of litigation and its attendant perplexities and expenses. He owed the plaintiff no duty to remain in possession and sustain the burden of the defence when the title was invalid. . . . The right of the defendant was, at any period, to give up the possession to the rightful owner upon claim made. He was under no obligation, either of duty or contract, to withhold it. He was not bound to seek redress through a litigation that might turn out to be fruitless with the party having the title ; " ^ and the law as thus stated has been recognized and applied in many cases.^ ' So in Greenvault v. Davia, 4 Hill (N. Y.), 643, the defendant conveyed land to the grantor of the plaintiff, with a covenant of warranty. The land was sub- sequently sold under the power of sale in a mortgage, which existed at the time of the conveyance, and the purchaser put a tenant in possession, which was held to be a sufficient eviction, and the court said : " There is no reason why such surrender without the trouble and expense of a lawsuit should deprive him of a remedy upon the covenant. The grantor is not injured by such an amicable ouster; on the contrary, it is a benefit to him, for it thus saves the expense of an action against the grantor to recover the possession." And in Clarke v. McAnulty, 3 Serg. & Rawle (Pa.), 372, it was said by Gibson, J., " The law does not require the idle and expensive ceremony of being turned out by legal process where that result would be inevitable." Again, in Radclifif v. Ship, Hardin (Ky.), 292, it was said, " Had the plaintiff refused to yield that just respect and due obedience to the court which every good and well-disposed citizen ought to render, then it would have been necessary, in order to effectuate the justice of the case and to complete the right of the plaintiff in ejectment, to have executed the writs of possession ; but surely there can be no objection to his acquiescing in and sub- mitting to the judgment, thereby rendering compulsion unnecessary, and prevent- ing the further accumulation of costs." = Drew V. Towle, 10 Foster (N. H.), 537, per Woods, C. J. ' Woodward v. Allan, 3 Dana (Ky.), 164; Hanson v. Buekner, 4 id. 254; Slater v. Rawson, 1 Metcalf (Mass.), 455; Loomis v. Bedel, 11 N. Hamp. 83; Sterling v. Peet, 14 Conn. 254; Patton v. McFarlane, 3 Pa. R. 425; Poyntell ». Spencer, 6 Barr (Pa.), 254; Steiner v. Baughman, 2 Jones (Pa.), 106; Stone v. Hooker, 9 Cowen (N. Y.), 157; Fowler v. Poling, 6 Barb. 148 THE COVENANT FOR QUIET ENJOYMENT. In order, however, that such ouster in pais should amount to an eviction, it is necessary that the paramount title shall have been hostilely asserted. i For although there is a class of cases to be presently considered,^ which recognize the right of the purchaser S. C. (N. Y.) 168; Blydenburgh v. Cotheal, 1 Duer (N. Y.), 196; Haffey v. Birchetts, 11 Leigh (Va.), 88; McDowell v. Hunter, Dudley (Ga.), 4; Leary 11. Durham, 4 Georgia, 606; Feriss v. Harshea, Mart. & Yerg. (Tenn.), 50, commenting on Kadcliff v. Ship, supra, p. 147 ; Thomas v. Stickle, 32 Iowa, 76. " An eviction by legal process," it was said in Fowler v. Poling, supra, " is not necessary, but the grantee may surrender possession to the rightful owner, and that will be a sufficient ouster to entitle him to his action in the covenant of war- ranty. It is true the Chancellor said in Hunt v. Amidon, 4 Hill, 345, in the Court of Errors, that the grantee had no right to give up voluntarily to a stranger claiming by title paramount, but his remark was obiter, and he was evidently mis- taken. In Hamilton v. Cutts, 4 Mass. 349, Stone v. Hooker, 9 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 contest, he takes upon himself the burden of showing that the person who entered had a title paramount to that of his grantor." The expressions in Beebe ». Swartwout, 3 Gilman (111.), 182, 183, which at first sight appear to conflict with this train of authority, refer entirely to the outstand- ing possession being one under a, paramount title, in distinction to a mere adverse possession in its narrow and technical signification; see infra, p. 158. Although in Mississippi there are expressions in the cases of Hoy v. Taliaferro, 8 Smedes & Marsh. 741, and Dennis v. Heath, 11 id. 218, which seem to advo- cate a more rigid rule, yet the cases were not actions on the covenant of war- ranty, but the breach of the covenant was attempted to be set up as a defence to the payment of the purchase-money (see infra, Ch. XIV.), and the court seemed unwilling to try the question of title in that action. In Hoy u. Taliaferro, it was said, " 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 purchasing from the marshal's vendee. Or it may happen that the title acquired from the marshal would not be sufiicient to effect an eviction. The voluntary abandonment in this instance gives no strength whatever to the defence. A court of law, although the proper tribunal for the trial of titles to laud, will not try such titles collaterally ; " see these cases more particularly noticed, infra, Ch. XIV. In the more recent case, however, of Witty v. Hightower, 12 Smedes & Marsh. 481, Clayton, J., remarked, "The utmost limit to which the cases cited by the counsel of the plaintiff go, is,, that an actual eviction under judgment of court is not always necessary. An ouster maybe sufficient, but then the burden of proof is upon the party who has yielded the possession ; Hamilton v. Cutts, 4 Mass. 360; Stone v. Hooker, 9 Cowen (N. Y.), 157. But these cases do not establish that there can be a breach of the covenant of warranty without an eviction, an ouster, or a sur- render, or holding out under a paramount, outstanding title." ' Knepper v. Kurtz, 8 P. F. Smith (Pa.), 480. ' Infra, p. 162. THE COVENANT FOR QUIET ENJOYMENT. 149 to buy in the paramount title, and in an action on the covenant recover tlie amount tluis paid, yet it will be found that they refuse to sanction such a recovery unless there has been a prosecution or distinct assertion of such title. Where such has been the case, its purchase is considered as equivalent to an eviction, as the idle form of abandoning the premises under one title in order to re- enter under another is deemed unnecessary. But if, in the one case, it be considered as indispensable that there shall have been a previous assertion of the paramount title, it would seem that it would be equally indispensable in the other.^ ' Thus, in Sprague v. Baker, 17 Mass. 690, it was said : " If the plaintiif had 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, and such an ouster would have entitled him 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 the breach of covenant for quiet enjoyment would not be well assigned. If a demand was made, the plaintiff, it was said, might yield to the dispossession ; '' while in Hagler v. Simpson, 1 Bus- bee (N. C), 386, where the plaintiff gave up the possession of the premises soon after their recovery from him in ejectment, this was held to be no eviction. " Non constat that he would have been disturbed in his possession had he remained upon the premises." In Moore v. Vail, 17 Illinois, 190, the law was thus well stated by Eaton, J. ; " The older authorities undoubtedly hold that there could be no breach of a common warranty of title, or warranty for quiet enjoyment, until the covenantee had been actually evicted or turned out of the premises. The spirit of such a covenant, and the manifest justice of the matter, soon began to prevail over such an extremely literal interpretation of the intention of the parties. And it was held that where, at the time of the execution of the covenantee, the premises were in the actual possession of another, who held them under a paramount or perfect title, then the covenant was broken as soon as it was made ; for the party should not be put to the useless expense, delay, and trouble to bring ejectment to get the possession, when it would certainly prove unavailing ; nor should he be required to commit an actual trespass upon the real owner in order to get possession, that he might himself be turned out of possession. But this is not the only case of constructive eviction which may now be considered as well settled by authority and sustained by sound principles of morality and justice. If the covenantee be in the actual possession of the estate, he has the right to yield that possession to one who claims it under a paramount title, without resisting him by force or by litigation ; and this is sus- tained by the same reasons of justice and good government which are appli- cable to the first exception. This, however, is not to be understood as holding that the mere existence of a paramount title constitutes a breach of the covenant, or that it will authorize the covenantee to refuse to take possession when it is 150 THE COVENANT FOR QUIET ENJOYMENT. And in all these cases it must be borne in mind that, if the pur- chaser choose to retire before the paramount title, it is at his own risk ; and, in the suit against his covenantor, he must assume the burden of proof, and make out the adverse title to which he has yielded, with as much particularity as if he were suing in eject- ment,^ unless, of course, the adverse right of possession has been established by a judgment or decree in a suit of which the cove- nantor had been properly notified, in which case the burden of proof will not only be removed, but the judgment or decree will be conclusive evidence of the validity of the paramount title.^ The result of the authorities would therefore seem to be that where the holder of the adverse title has the right summarily to obtain possession under it, and adversarily asserts or prosecutes that right, the covenantee may anticipate its actual exercise, and voluntarily surrender the possession, by which ouster in pais a sufficient eviction will be caused to support an action on the cove- nant, in which, however, he will be obliged to prove that the results which he thus anticipated were inevitable.^ The foregoing cases, in which there has been either an adversary quietly tendered to Mm, or when lie can do so peaceably, and then claim that by reason of such paramount title and his want of possession the covenant is broken ; nor will it justify him in abandoning the possession without demand or claim by the one holding the real title. His possession under the title acquired with the covenant is not disturbed by the mere existence of that title ; and he has no right to assume that it ever will be, until he actually feels its pressure upon him. He must act in good faith towards his covenantor, and make the most of whatever title he has acquired, until resistance to the paramount title ceases to be a duty to himself or his covenantor. While he is not bound to contest where the con- test would be hopeless, or resist where resistance would be a vrrong, 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 posses- sion to the pressure of that title. Whenever he does yield quietly, he does so at his peril." ' Hamilton v. Cutts, 4 Mass. 350 ; George v. Putney, 4 Gushing (Mass.), 355 ; Stone ». Hooker, 9 Cowen (K Y.), 157 ; Greenvault v. Davis, 4 Hill (N. Y.), 643 ; Witty v. Hightower, 12 Smedes & Marsh. (Miss.) 481 ; Thomas v. Stickle, 32 Iowa, 76 ; Peck v. Hensley, 20 Texas, 678, citing the text. « Miner u. Clark, 16 Wendell, 427 ; Middleton v. Thompson, 1 Spears (S. C.), 67 ; Wilson v. McElwee, 1 Strobhart (S. C.), 65 ; Bridgeru. Pierson, 45 N. Y. 603. ^ The statement in the text of the result of the authorities was approved in Funk V. Creswell, 6 Clarke (Iowa), 86. THE COVENANT FOR QUIET ENJOYMENT. 151 dispossession or a compulsory yielding up of the possession, illus- trate what is generally termed actual eviction. Under the head of constructive eviction may be considered, first, tlie cases in which an eviction is deemed to be caused by the in- ability of the purchaser to obtain possession by reason of the para- mount title. 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 ; and, upon objection that the plaintiff showed no actual entry on his part and expulsion of the stranger, it was held that the word demise implied a power of leasing, which, if it did not exist, was broken as soon as made,^ and also that it was not reasonable to force the lessee to enter upon the land, and so commit a trespass ; " but," the court added, " if it wei-e an express covenant for quiet enjoying, then perhaps it were otherwise." This supposition was, however, soon after met by the case of Cloake v. Hooper,^ where lands were conveyed by the defendant to the plaintiff, with a covenant for quiet enjoyment, and the latter having averred that the lands belonged to the king, who had pre- viously conveyed them, a demurrer by tlie defendant that the plaintiff did not allege an entry, and so could not be disturbed, was held bad ; the court saying, " The declaration is good enough ; for having set forth a title in the patentee of the king, the plaintiff shall not be enforced to enter, and subject himself to an action by a tortious act." So, in a more recent case in the King's Bench, the plaintiff declared on a covenant for quiet enjoyment in a lease for years determinable on lives, alleging that he was never in pos- session, that he had been refused attornment by the tenant, and subsequently defeated by him in an ejectment, on the ground of a prior lease granted by the defendant. The latter pleaded that for the first half year after the date of his lease the plaintiff might have entered and enjoyed, but that, for non-payment of tlie rent for twenty-one days after that time, the defendant had a right of re- entry, which he exercised ; and, upon demurrer, the court held that the defendant's covenant for quiet enjoyment meant a legal entry ' Hobart's Rep. 12. ' As to this, see infra, Ch. X. ' Freeman's Rep. 122. 152 THE COVENANT FOE QUIET ENJOYMENT. 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 judg- ment was accordingly given for the plaintiff.^ On this side of the Atlantic, however, there were at one time dicta, and even decisions in favor of a narrower rule. Thus, in a case before the Supreme Court of the United States in 1825,^ where the plaintiffs alleged first, that, by reason of a want of title in' their grantor, they had been unable to obtain possession of the premises ; and, secondly, that they had been ousted from the said premises, it was said, " These averments are in opposition to each other. But the allegation that possession has never been obtained is im- material, because not a breach of the covenant, and a majority of the court are disposed to think may be disregarded on a general demurrer ; " and such was the actual decision in New York in a case of Kortz v. Carpenter, where the breach of the covenant for quiet enjoyment being alleged to be that at the date of the deed to the plaintiff, and long before, the premises were adversely, by law- ful title and right, held, possessed and enjoyed by the proprietors of the Hardenbergh patent, this was held bad, on general demurrer, as not showing an eviction.^ So, in a subsequent case in the same State,* it was said that if the covenantee never had had the posses- sion, however hard the case might be, no action would lie on the covenant for quiet enjoyment — that the grantee should have pro- tected 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 referred to iu the case of Holder v. Taylor,^ has failed to receive judicial sanction in the other States, and the reasons upon which the opposite doctrine is based have been nowhere stated more forcibly than in a case in North Carolina,^ where Ruffin, J., in delivering the opinion of the ' Ludwell V. Newman, 6 Term, 458. In the case of Hawkes v. Orton, 5 Adolph. & Ellis, 867, judgment was rendered for the defendant by reason of there being no evidence of the breach as stated in the declaration. But the court seem to have thought that a refusal to give possession inight, if properly averred, be a breach of the covenant for quiet enjoyment. 2 Day V. Chism, 10 Wheaton, 452, per Marshall, C. J. 3 5 Johns. (N. Y.) 120. * St. John V. Palmer, 5 Hill (N. Y.), 601. ' Supra, p. 151. • Grist V. Hodges, 3 Devereux (N. C), 200. THE COVENANT FOB QUIET ENJOYMENT. 153 court, said : " The existence of an incumbrance, or the mere recovery in a possessory action under which the bargainee has not been actually disturbed, are held, for technical reasons, not to be breaches of a covenant for quiet possession, or, in other words, of our warranties. But that is a very different case from this, in which the bargainee never in fact was in possession, but was kept out by the possession of another, under better title existing at the time of sale and deed, and ever since. The case of Kortz v. Car- penter is of the same character. But it is distinguishable from the present, for there had been no attempt in that case to get posses- sion. Here there was, by ejectment. ^ I do not, however, thinlc that was necessary ; but the existence of a better title, with an actual possession under it in another, is of itself a breach of the covenant. It is manifestly just that it should be so considered ; for otherwise the covenantee would have no redress but by making himself a trespasser by an actual entry, which the law requires of nobody, or by bringing an unnecessary suit, for the event of that suit proves nothing in the action on the covenant. But upon purely legal grounds it is so. For, as between the bargainor and bar- gainee, the latter is in by force of the statute of Uses. It is upon that idea that the legal estate is acquired by a deed of bargain and sale. It passes the use, and the statute carries the possession. It is so in the conveyance by lease and release. There must be a pos- session for the latter to operate on. But it is not an actual posses- sion ; at least, the actual entry need not be proved. The statute transfers the possession, and the lessor cannot say it was not actual, for the purpose of defeating his subsequent release. As between the parties, then, the bargainee is, on strict principles, in ; but if there be in reality an adve.rse possession, he can only be held to be in for an instant, for there will be no implication against tlie truth further than is necessary to make the deed effectual for its purposes. If such adverse possession be upon title paramount, then there is an eviction of the bargainee eo instanti that the pos- session conferred by the statute takes place, or the eviction need not be by process." The general principle thus ably explained has ' The breach assigned in the case was an eviction by one Wingtield, and the evidence was that Wingfield was in actual possession of the property, and that the covenantee had brought an ejectment against him and failed therein, by rea- son of Wingfield's paramount title. 154 THE COVKNANT FOR QUIET ENJOYMENT. been recognized and applied in many other cases,^ and an analogy may be found in the old common law, which, although strictly requiring livery of seisin to accompany every feoffment, allowed the feoffee, where he dare not enter through fear of his life or of bodily harm, to make a yearly continual claim, as near the land as possible, which would be " a good entry in law." ^ The rule, therefore, as best supported by reason and authority, would seem to be this : where, at the time of the conveyance, the grantee finds the premises in possession of one claiming under a paramount title, the covenant for quiet enjoyment or of warranty will be held to be broken, without any other act on the part of either tlie grantee or the claimant ; for tlie latter can do no more towards the assertion of his title, and, as to the former, the law will compel no one to commit a trespass, in order to establish a lawful right in another action.* It remains to inquire how far such a rule would apply to cases where, as is often, the case in this country, the land is without > Duvall V. Craig, 2 Wheaton, 62; Noonan v. Lee, 2 Black (U. S.), 507, citing the text; Curtis v. Deering, 12 Maine, 501; Blanchard v. Blanchard, 48 id. 174 ; Phelps v. Sawyer, 1 Aikens (Vt.), 158 ; Park v. Bates, 12 Verm. 381 ; University of Vermont v. Joslyn, 21 id. 52 ; Loomis v. Bedel, 11 N. Hamp. 74 ; Miller v. Halsey, 2 Green (N. J.), 69; Gardner v. Keteltas, 3 Hill (N. Y.), 330; Small v. Reeves, 14 Indiana, 164; Wilder v. Ireland, 8 Jones' LawR. (N. C.) 87 ; Randolph v. Meeks, Mart. & Yerg. (Tenn.) 58 ; Caldwell v. Kirkpatrick, 6 Alabama, 60 ; Banks u. Whitehead, 7 id. 83 ; Dennis v. Heath, 11 Smedes & Marsh. (Miss.) 206 ; Witty v. Hightower, 12 id. 478 ; Cummins v. Kennedy, 3 Littell (Ky.), 123; Barnett v. Montgomery, 6 Monroe (Ky.), 328; Playter v. Cunningham, 21 California, 229. In Moore v. Vail, 17 Illinois, 185, the court said: "We admit the principle of law claimed, that if, at the time this convey- ance was executed, the premises were actually in possession of a third party claiming under a. paramount title, that of itself amounted to an eviction eo in- stanti ; Rawle on Covenants for Title." See this case, infra, p. 157. = Co. Litt. 253, n. • This statement of the law was quoted and approved in Murphy v. Price, 48 Missouri, 250 ; Clark u. Conroe, 38 Verm. 475 ; Russ v. Steele, 40 id. 315 ; Rea V. Minkler, 5 Lansing (N. Y.), 296. In Murphy ». Price this rule was applied to a case arising under the statutory covenants implied from the words ' ' grant, bargain, and sell" (infra, Ch. XII.) ; and in Russ v. Steele and Rea v. Minkler an existing, hostilely asserted, paramount right of way was held to be an eviction to the extent of the adverse right. But in McMuUan u. Wooley, 2 Lansing (N. Y.), 395, the right to draw water through pipes from a spring was held to come only within the scope of a covenant against Incumbrances, as it was not consid- ered to be a deprivation of part of the land. THE COVENANT FOR QUIET ENJOYMENT. 155 actual occupation or possession by any one. With respect to wild and uncultivated lands, it has long been settled on this side of the Atlantic that the owner is to be deemed in possession so as to enable him to bring trespass against a wrong-doer, on the ground that the legal seisin draws with it the possession, unless there is at the time an actual adverse possession.^ When such land is con- veyed by deed, taking effect under the statute of Uses, there is, in the absence of a better title, a constructive possession given to the grantee ; and this, where the land is thus wholly unoccupied, seems to be considered as equivalent to an actual entry and possession by the latter. Hence it was held in New York that, where a mortgagee of wholly unoccupied land foreclosed his mortgage and obtained a decree that he should be let into the possession, this was an evic- tion amounting to a breach of the covenant.'^ " In the cases which have been cited," ^ said the court, " the covenantee either remained in possession without any actual ouster before suit brought, or else he never had any possession, either actual or constructive. In the case before us, as the premises were wholly unoccupied, the legal seisin followed the title. The plaintiffs had the constructive pos- session the moment they received the deed, and could have main- tained trespass against any one who should enter on the land withoiit title. They were in such a condition that an ouster or disseisin might follow. Now, have the plaintiffs been evicted ? When the mortgagee acquired a paramount title under the mort- gage, the legal seisin, the premises still being unoccupied, imme- diately passed from the plaintiffs to him. He then had the constructive possession, and could maintain trespass against the plaintiffs, as well as any one else who should enter on the land. ' Proprietors of Kennebeck v. Call, 1 Mass. 484; Van Brunt v. Schenck, 11 Johns. (N. Y.) 385; Mather v. Trinity Church, 3 Serg. & Rawle (Pa.), 614; Bush V. Bradley, 4 Day (Conn.), 806. When the cases say that this rule applies only when there is no adverse possession, this is principally intended to preserve the effects of the statutes of Limitation, as those statutes would be totally useless in case an actual, visible and notorious 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. In the note to Taylor v. Horde, 2 Smith's Lead. Cas., the student will find the numerous cases upon this subject classified. = St. John V. Palmer, 5 Hill (N. Y.), 699. ' These cases were Waldron v. McCarty, 3 Johns. 471 ; Kortz v. Carpenter, 5 id. 120 ; Kerr v. Shaw, 13 id. 236 ; Webb v. Alexander, 7 Wendell, 281. 156 THE COVENANT FOR QUIET ENJOYMENT. This would not be enough without showing that the mortgagee had asserted his title to the land. The mere fact of a superior title in a third person can never amount to a breach of the covenant for quiet enjoyment. The possession of the covenantee must be dis- turbed, he must be evicted, by the person having the better title. It is not necessary, liowever, that he should be evicted by legal process ; it is enough that he has yielded the possession to the riglitful owner, or that such owner has entered, the premises being vacant, and taken possession.^ The mortgagee has asserted his riglit. He filed a bill in chancery for the purpose of perfecting his title under the mortgage, and made the defendants, as well as the plaintiffs, parties to the suit. And he not only acquired a perfect paper title by the foreclosure and the sale, but there was a decree against all the parties to the present action that he should be let into tlie 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 was necessary for the purpose of giving the mortgagee the complete enjoyment of his legal rights. It would have been an idle ceremony to issue a writ of assistance or any other execution on the decree. The decree was executed the moment the mort- gagee received the Master's deed. And thus the constructive pos- session, or legal seisin, which was in the plaintiffs, was, by the acts of the parties and the operation of law, transferred to the mortg^agee. He has since exercised acts of ownership over the property, and no one has questioned his right to do so. I thinls; there *has been such an eviction of the plaintiffs as aP'°'".^°' Vto a breach of the covenant.'"' ^hf 'ii>^ Oq,, ' Citing Greenvault v. Davis, 4 Hill (N. Y.;in pV. r^ ' "Although this is," the court went on to s''™9 " in several particulars like the case of Waldron v. McCarty, 3 Johns. 471, tViere is still a plain distinction between the two cases. There the averment was that the plaintifif was obliged to purchase the premises under the decree of for,<3closure, ' in order to prevent his being deprived and ousted of the same ; ' and on demurrer it was held that this did not amount to a breach of the covenant. But the plaintiff was in actual pos- session of the land, and the possession never had been changed. In Kerr v. Shaw, 13 Johns. 236, a person having the paramount title had recovered eject- ment against the covenantee ; but, as no execution had been issued on the judg- ment, 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 actual possession in the plaintiffs or any one else, no execution THE COVENANT FOR QUIET ENJOYMENT. 157 So in a recent case in lUindis, it was said, " In this country, where so much of the land which is the subject of sale and trans- fer is actually wild and unoccupied, rules on the subject of eviction as well as of possession must be determined in reference to such a state of things. Although in this case it does not appear that the covenantee was ever in the actual possession of the premises, yet he certainly once held the legal title, and the lands being then actually vacant, such legal title drew after it the constructive pos- session." 1 or other formal proceeding was necessary for the purpose of giving full effect to the decree." Waldron v. McCarty, and the other cases of that class will be no- ticed infra. ' Moore u. Vail, 17 Illinois, 185. In this case, the question arose with respect to the statute of Limitations. In an action on the covenant of warranty, it was proved that, at the time of the sale to the plaintiff, in 1836, the premises were in the actual possession of one Lynch, who, however, did not claim to be in posses- sion under color of title, and who soon after left them vacant, in which state they continued until 1842, when Mrs. Lynch, tvho then held the paramount title, took possession. " The defence now insisted upon," said the court, " is the statute of Limitations. It is not denied that the title has failed, and that there has been in contemplation of law an eviction so as to give the right of action on the cove- nants ; but it is insisted that the title failed, and that a technical eviction accrued on the first day of September, 1836, the moment the deed was executed, which was more than sixteen years before this action was brought. We admit the prin- ciple of law as claimed, that if, at the time this conveyance was executed, the premises were actually in the possession of a third party claiming under a para- mount title, that of itself amounted to a conviction, eo instanti ; Eawle on Cov- enants for Title. From the facts already stated, does it appear that, on the first of September, 1836, Lynch held possession of the premises under an adverse paramount title ? The presumption is that he held in subordination to the title which he had conveyed to Collins, and there can be no doubt that he might have been dispossessed,, under the deed of conveyance on which this suit is brought by an action of ejectment. The continued possession of Lynch not being under paramount title, nor even adverse to the plaintiff's title, did not constitute an eviction so as to give the plaintiff a cause of action on his covenant of warranty. The plaintiff's constructive possession continued until it was actually interfered with by the owner of the paramount title. Until that time he might peaceably have entered upon and enjoyed the premises without resistance or molestation, which was all his grantors covenanted he should do. They did not guarantee to him a perfect title, but the possession and enjoyment of the premises. There was no interference with this till Mrs. Lynch entered and took possession of the property in 1812. This entry being by paramount title, although peaceable and without opposition from the covenantee, was at least a constructive ouster and a breach of the covenant. Then, for the first time, an action accrued upon this covenant, and not till then did the statute of Limitations begin to run." The dis- tinction is here stated with great clearness. 158 THE COVENANT FOR QUIET ENJOYMENT. Before dismissing the class of c&ses upon the subject of an evic- tion being caused by the grantee's inability to obtain the possession, it should be observed that such possession must be under a title actually paramount, and not an adverse possession such as would ripen by lapse of time under the limitation acts into a perfect title. Such a possession might, according to some authorities, cause a breach of the covenant for seisin ;^ but there appear to be none which decide that it would cause a breach of the covenant of warranty or for quiet enjoyment. On the contrary, in an early case in Vermont,^ and recently in Illinois and New York, it has been held that such a possession was no breach of these cove- nants.^ The next class of cases under the head of constructive eviction is that which holds that an eviction will be caused by the covenantee having compulsorily purchased or taken a lease under the para- mount title, without any actual change of possession, both in cases where the validity of such title has been established by the judg- ment or decree of a court of competent jurisdiction, and, under certain circumstances, where it has not been thus established. In opposition to such a doctrine, it has been often urged that it confounds all distinction between a covenant for seisin and a cove- nant for quiet enjoyment or of warranty ; and it has also been ar- gued that an analogy exists to the rule which prohibits a tenant ' Supra, p. 65 et seq. " Phelps V. Sawyer, 1 Aikens (Vt.), 157. ' Beebe v, Swartwout, 3 Gilman (111.) , 183, where the subject was elaborately ex- amined both by counsel and the court ; Moore u.Vail, 17 Illinois, 185, supra, p. 157. In Jenkins v. Hopkins, 8 Pick. 350, the law was incidentally considered as so set- tled: "The depositions show an actual possession and occupation, and payment of taxes by several persons, but there is no legal evidence of their title. . . . The fact of possession, as proved by the witnesses, stands disconnected from any title, and therefore we cannot know that it was not unlawful, and if it was so, it is no breach of the covenant of warranty." In Rindskopf «. Farmers' Loan Co., 58 Barbour (N. Y.), 49, lands were conveyed by the defendant with a covenant of general warranty. They were, at that time, held by third pai-ties claiming adversely to the defendant, whose possession, however, had not yet ripened into title, but subsequently did so before suit brought ; and it was held, in an action on the covenant, that there could be no recovery. " The plaintiff," said the court, " has not lost his right to the land by a title paramount existing at the time the covenant in question was made by the defendant, but by his own laches in suffering an imperfect and inferior claim of title to become a legal title para- mount to his." THE COVENANT FOR QUIET ENJOYMENT. 159 from disputing his landlord's title, unless there has been an eviction under the paramount claim. But in answer to sucli an analogy, it may be said, first, that what- ever may have been the origin of this rule,^ or its earlier application, it is now settled that wherever the landlord's title is insufficient for the security of the tenant, the relation between them may be re- nounced, and the latter may protect himself under the paramount title ;2 and this is held to be a constructive eviction.^ The excep- • It is now well settled that, except where the lease was by indenture, this doctrine is of modern origin, and was never heard of till towards the close of the last century. In the former editions of this treatise, some space was devoted to this subject (Covenants for Title, pp. 262-268, 3d ed.), but since their publica- tion it has been discussed by several learned authors, as also from the bench, and need therefore only be incidentally referred to at this time ; see an able article on Estoppel of Tenant to deny his Landlord's Title, in American Law Review, Oc- tober, 1871 ; Bigelow on Estoppel, c. 15 ; Notes to Moss v. Gallimore, and Duchess of Kingston's case, 2 Smith's Lead. Cas., 7th ed., and an elaborate opinion by Woodruff, J., in Moffat v. Strong, 9 Bosworth (N. Y.), 57, in which latter the same conclusions were reached as those heretofore stated in this treatise. ' Thus, a payment of rent by a tenant to a mortgagee claiming under a mortgage prior to the lease, and who has at that time a right of entry, is a suf- ficient defence in an action for rent by the landlord ; Jones v. Clark, 20 Johns. 61 ; Magill v. Hinsdale, 6 Conn. 469 ; Smith v. Shepard, 16 Pick. (Mass.) 147 ; Stone V. Patterson, 19 id. 476 ; Welch v. Adams, 1 Metcalf (Mass.), 494 ; George V. Putney, 4 Cushing (Mass.), 355; Greeno v. Munson, 9 Verm. 37; Simers v. Saltus, 3 Denio (N. Y.), 216 ; Chambers v. Pleak, 6 Dana (Ky.), 428 ; Pope v. . Biggs, 9 Barn. & Cress. 245 ; see Mayor of Poole v. Whitt, 15 Mees. & Wels. 677 ; Waddilove v. Bamett, 2 Bingham's N. C. 538 ; Franklin v. Carter, 1 Com. Bench, 760; Graham v. Alsopp, 3 Exchequer, 198; Doe v. Barton, 11 Ad. & Ell. 314. ' Thus in Ross v. Dysart, 9 Casey (Pa.), 464, it was said : " Nor is it neces- sary for the tenant to be actually removed from the premises to give him a good defence against rent. Writs of habere facias possessionem are well executed when the tenant attorns to the plaintiff therein. And the taking of a lease or contract of purchase under pressure of such writ, where there is no fraud or col- lusion, is an actual eviction in law, which dissolves the relation between the tenant and his original landlord." Nor need the pressure be that of a writ. " If a party," said Chief Baron Pollock, " having a good right to eject the occu- pier of demised premises, goes there and demands to exercise that right, and the tenant says, ' I will change the title under which I now hold, and will consent to hold under you,' that, according to good sense, is capable of being well pleaded as an expulsion ; " Mayor of Poole v. Whitt, 15 Mees. & Wels. 577, and see accord. Clapp v. Coble, 1 Dev. & Battle, Ch. (N. C.) 177 ; Morse v. Goddard, 13 Metcalf (Mass.), 177; George v. Putney, 4 Cushing (Mass.), 354. To ren- der the eviction a valid defence against the landlord's claim for rent, it must take place before the rent falls due ; Giles v. Comstock, 4 Comstock (N. Y.), 275. 160 THE COVENANT FOR QUIET ENJOYMENT. tions to this application of the rule are sufficiently obvious. The analogy, therefore, if any really exist, is, according to the later cases, ratlier in favor of than against the doctrine now under con- sideration. And, secondly, it would, moreover, seem clear that the reasons in favor of a somewhat rigid adherence to the rule that a tenant shall not dispiite his landlord's title, lose their force when applied to a conveyance purporting to pass the whole estate of the grantor and to leave no reversion in him.' For the relation of landlord and tenant imposes upon both parties greater rights and obligations than tliat of vendor and purchaser.'^ There seems no obligation of allegiance and loyalty on the part of the latter towards the title he has received. The mischief to which, as between landlord and tenant, the absence of such a rule must lead, would evidently be that a tenant, having obtained the possession from his landlord, could betray it to another, and thus drive the former to an eject- ment to regain the possession, and no landlord would ever be safe from the prospect of litigation. Hence the tenant's obligation to restore to him the possession.^ But, as between vendor and pui-- ' Thus the rule would never be applied to the case of one who had received a conveyance in fee containing a reservation of a ground-rent to the grantor ; Brown ». Dickerson, 2 Jones (Pa.), 372. The case of Naglee v. IngersoU, 7 Barr (Pa.), 185, will, on examination, be found not to contradict this. "The fourth plea," said Bell, J., "is either a nil habuit in ienementis, which, in cove- nant, is bad on demurrer, or it is tantamount to a plea of eviction. But neither of the latter pleas set out the name of the evictor, or allege that he entered upon the defendant's possession by virtue of a lawful title acquired before or at the time of the grant to the defendant. This averment is absolutely essential to the sufficiency of such plea.'' = Blight V. Kochester, 7 Wheaton, 548 ; Walden v. Bodley, 14 Peters, 156 ; Watldns V. Holman, 16 id. 54; Page v. Hill, 11 Missouri, 149; Osterhout v. Shoemaker, 3 Hill (N. Y.), 518; Kenada v. Gardner, 3 Barb. S. C. (N. Y.) 589; Averill v. Wilson, 4 id. 180; Bigelow v. Finch, 11 id. 600; James v. Pat- terson, 1 Swan (Tenn.), 311; Winterbottom w. Ingham, 7 Queen's Bench, 611. ' Or, as has been well expressed in Judge Hare's note to the Duchess of Kingston's case, " It is well known that a recovery cannot be had in ejectment without proof of title, and that it may be defeated by proving an outstanding title in a third person. The result of allowing a tenant to deny the right of the landlord, in an ejectment for the land, would therefore be to take the estate from the latter and confer it on the former whenever there was a defect either in the title itself or the evidence brought forward to sustain it. And the law, conse- quently, will not tolerate a course which would be equally inconsistent with pub- THE COVENANT FOR QUIET ENJOYMENT. 161 chaser, there can be no such danger. By the contract, as uitended to be fulfilled, the title and possession leave the vendor, never to return to him ; and, with the execution of the conveyance, as a general rule, all the relations between the parties cease, except those arising from the purchaser's obligations with respect to the unpaid purchase-money and his rights upon the covenants which he has received. Hence it may be safely said that in those courts which hold that a constructive eviction is caused by a tenant being obliged, on pain of dispossession, to accept a lease under the paramount title, it would, a fortiori, be held that a constructive eviction, amounting to a breach of the covenants of warranty or for quiet enjoyment, would be caused by the purchase of such title, by whomever might be entitled to the benefit of the covenants, and such would appear to be the present general course of decision. In the early case in New York of Waldron v. McCarty,^ the plaintiff, in an action on the covenant of warranty, averred that at the execution of the deed to himself the premises were incumbered with a mortgage, that they were afterwards sold under a decree of the Court of Chancery for the principal and interest due on the mortgage, and that he had been obliged to purchase them in order to prevent his being deprived and ousted of the same, to which the defendant demurred, and the demurrer was sustained, Spencer, J., who delivered the opinion, saying, " In good sense, the covenant for quiet enjoyment has reference merely to the undisturbed pos- session, and not to the grantor's title. In the present case, judging from the deed, it was never the intention of the grantor to covenant that the lands were free from incumbrance. From precedents, and as no authority has been shown that the covenant for quiet enjoy- ment is broken by any other acts than an entry and eviction or a disturbance of a possession itself, we are of opinion that the demurrer is well taken." It is, however, believed that this decision is no longer recognized as authority in New York, nor sustained by the weight of authority lie policy and private faith, and might prevent men from letting their property, even when they were unable to use it themselves ; when, therefore, possession is obtained under a lease, the lessee is estopped from keeping the land in violation of the agreement under which it was acquired;" 2 Smith's Lead. Cas. (7th Am. ed.)p. 750. ' 3 Johns. 471. 11 162 THE COVENANT FOE QUIET ENJOYMENT. eLsewhere. Thus, in the case of Sprague v. Baker,' where one who, having received land with covenants for quiet enjoyment and of warranty, paid the amount of a mortgage, upon being threatened by the mortgagee to sue for possession of the premises under it, it was held that there was " nothing to distinguish this case from that of Hamilton v. Cutts,^ but a point of form, which does not affect the merits of the question. The plaintiif has been disturbed in the enjoyment of his possession, and he has been compelled to purchase in another title for his own security, which we think very clearly has been a lawful interruption, and a breach of the covenant of quiet enjoyment." So, in a recent case in Pennsylvania, a mortgagor conveyed the premises bound by the mortgage, reserving to himself a ground- rent, and covenanting that the purchaser should at all times there- after freely, peaceably and quietly have, hold, and enjoy the premises, without any molestation, interruption or eviction of the grantor or his heirs or any one claiming under him or them, or by or with his or their acts, means, consent or procurement. The purchaser sold to the plaintiffs, who, upon the premises being ad- vertised at sheriff's sale under proceedings on the mortgage, pur- chased them and took a deed therefor,^ and this was held a sufficient eviction to entitle the plaintiffs to recover.* ' 17 Mass. 590. ^ i Mass. 350 ; supra, p. 146. ^ It will be observed that the facts in this case were almost identical with those in Waldron v. McCarty, supra. * Brown v. Dickerson, 2 Jones (Pa.), 372. " It is true," said Burnside, J., who delivered the opinion of the court, " that the covenant for quiet enjoyment 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., 514-522), by reason of some adverse right existing at the making of the covenant, not of one subsequently acquired ; Ellis V. Welch, 6 Mass. 246. Proof of the demand of possession on a superior right will not be deemed sufficient on which to found the action ; to maintain it, the plaintiff must exhibit an assertion and proceeding on that title, an ouster or disturbance by means of it ; but a technical ouster on a judgment at law is not absolutely necessary; 2 Greenl. Ev. § 243. Here, one of the plaintiffs was out of possession ; and the other, in order to retain the possession, was forced to purchase at the sheriff's sale, and that to prevent such an ouster as would have kept him out forever. The rule, as settled in Waldron v. McCarty, 8 Johns. 464, has not met the approbation of the profession in many States of this Union. It is too technical, and puts a grantee to unnecessary expense and trouble, and has been properly overruled in many of the courts. We particularly refer to the THE COVENANT FOR QUIET ENJOYMENT. 163 So, in a late case in Massachusetts, where the facts were almost similar, the court said, " The premises were offered for sale at public auction, and, if tlie plaintiff had not become a purchaser, he had a right to presume that he should be dispossessed by the pur- chaser, and he was justified in acting upon that presumption, and the defendant could not be thereby injured ; for, undoubtedly, if the plaintiff had not become a purchaser, he would have been evicted if he had refused to yield possession, and in such case the defendant would be responsible for the costs of suit in the action against the plaintiff as well as for the value of the land, if duly no- tified of the pendency of the action." ^ The same doctrine has been learned and able opinion of Parker, Chief Justice of the Supreme Court of New Hampshire, in Loomis v. Bedel, 11 N. Hamp. 74 (see this case more particularly noticed, infra) , where it is held that where there is a conveyance with a covenant of warranty, and there is, in fact, a superior title, which is asserted by oifering the premises for sale at public auction, and the grantee, under the subsequent conveyance, yields to the superior title and purchases it, this assertion of title and purchase is a sufficient ouster or disturbance to sustain an action on the cov- enant of warranty, notwithstanding there was no actual dispossession. It is fur- ther ruled that if one of several grantees, under the subsequent conveyance, make the purchase and remain in possession, all may have their action on the covenant. These principles are directly in point, and, if respected, rule this case. The weight of modern authority is in accordance with thein. King v. Kerr, 5 Ohio, 158, decides that, if the vendor, in possession (after a judgment in eject- ment against him), buys in the claimant's title, that is equivalent to an execution, and an actual ouster is not necessary ; see also Foote v. Burnett, 10 Ohio, 330. The same good sense is found in New Jersey ; Stewart v. Drake, 4 Halsted, 139, 140. A mortgaged premises to B, and then sold them to C, with a covenant of quiet enjoyment; 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, there was an eviction when the premises were bought in by D. They have substantially adopted the same principle in Alabama; Davenport v. Bartlett, 9 Alabama, 179. We therefore think the weight of authority is with the plaintiff, and the nonsuit ought to be taken off." ' Whitney v. Dinsmore, 6 Cushing (Mass.), 124. The early New York oases of Waldron v. McCarty, Kortz v. Carpenter, &c., were relied on by the defend- ant, but the court said, " However this may be, we consider the law well settled in this Commonwealth, and we see no reason for adopting the doctrine laid down in the cases cited from the New York reports. The question is, whether, in all cases, a party must wait until he is actually evicted or ousted, before he can have the benefit of the covenant 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 Duvajl v. Craig, 2 Wheaton, 45, it was held that, if a grantee is unable to obtain possession, in consequence of an existing possession or seisin by 164 THE COVENANT FOE QUIET ENJOYMENT. recognized and applied in many other States, and is supported by the weight both of reason and authority.^ a person claiming or holding under an elder title, it is equivalent to an eviction. And so we think if the grantee is in possession, and a claim is made on him by a party having a title, against which he is unable to defend himself, he may yield to a dispossession or purchase in the paramount title ; and the present case, we are of opinion, depends on a similar principle." ' White V. Whitney, 3 Metcalf (Mass.), 81; Bemis v. Smith, 10 id. 194; Eastabrook v. Smith, 6 Gray (Mass.), 672 ; Donnell v. Thompson, 1 Fairf. (Me.) 170; Kelly v. Low, 18 Maine, 244; Cole v. Lee, 30 id. 392 (see this case noticed, infra) ; Stewart v. Drake, 4 Halsted (N. J.), }39 ; Haflfey v. Birchetts, 11 Leigh (Va.), 88; Dupuy v. Roebuck, 7 Alabama, 488 (see this case noticed more particularly, infra) ; Gunter v. Williams, 40 id. 572 ; Harding v. Larkin, 41 Illinois, 422 ; McConnell v. Downs, 48 id. 271 ; Claycomb v. Munger, 51 id. 374; McGary v. Hastings, 39 California, 860; Tuite u. Miller (Ohio), 5 West. Law Journal, 413 (and see King v. Kerr, 5 Ohio, 154, whose decision, it was said in Johnson v. Nyce, 17 Ohio, 69, infra, was controlled by the local " occupying claimant law "). In Leary v. Durham, 4 Georgia, 593, after land had been conveyed with a general covenant of warranty, the widow of a former owner made application, under the local statutes, for an admeasurement and assignment of dower, upon which commissioners were regularly appointed, and their return was made the judgment of the court, which directed a writ of possession to be issued upon application of the demandant. The plaintiff (the assignee of the covenantee) rested his case here, with proof that the injury to the land was four or five hundred dollars, and that his covenantor had notice of the pendency of these proceedings. On the trial, the court ordered a nonsuit, on the ground (among others) that there had been no eviction. But the judgment was reversed by the Supreme Court, and Lumpkin, J., in delivering the opinion of the court, after referring to the local provisions as to assignment of dower, held the follow- ing language: " All of this has been done in the present case, except that the record fornishes no evidence that a writ of possession has ever issued. The legal presumption is that none was needed, and that the tenant surrendered voluntarily. The witnesses testify that Leary, the plaintiff, has been injured some four or five hundred dollars. We think that the case should have been submitted to the jury. After the judgment of confirmation by the court, not only the actual but the market value of the premises has diminished to the extent of the worth of the dower. The tenant would have subjected himself to the payment of rent by holding over. The judgment of the court had settled the fact that there was an outstanding and better title than Durham's to a portion of this land. The exist- ence of this claim was an incumbrance, ascertained and fixed by law, and was, in our opinion, such a breach of the warranty as to authorize a suit, not to recover nominal damages only, but indemnity for the actual injury incurred. If the for- mal entry of a mortgagee for foreclosure, though made under a statute which does not require that the possession of the mortgagee should be continued, is a breach (9 Mass. Rep. 495;, 16 Pick. 56), the conclusion is irresistible that the pro- ceeding in this claim of dower would sustain the present suily." But it may be doubted whether the judgment of nonsuit in this case was not properly entered. THE COVENANT FOR QUIET ENJOYMENT. 165 There are, it is true, some decisions which, at first sight, do not appear to be in accordance with this proposition, and some dicta which are not quite reconcilable to it, but it is believed to be sup- ported by the weight of naodern authority .^ If, indeed, the plaintiff had proved that he " had surrendered voluntarily," 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 Fairf (Me.) 170, and Tuite v. Miller, 6 West. Law Journal, 413 ; the case of Davis V. Logan, 8 B. Monroe, 342, was a suit in equity, where all the parties to the title being before the <3ourt, there was a general adjustment of title and set- tlement of damages) ; but the testimony of the witnesses seems to have merely been that, by the proceedings, the market value of the land was diminished by that amount ; that is to say, the covenantee would, before a resale of the prem- ises by himself, be obliged to discharge the incumbrance or have its price deducted from the purchase-money he would receive, and, until these events had actually happened, it would seem that he had no right to more than nominal damages ; infra, Ch. IX. The case is worthy of consideration as evincing a strong desire in that State to make the covenant of warranty as comprehensive as possible ; and the course of decision in South Carolina, where an eviction is held unnecessary to a breach of this covenant, was cited with approbation. Indeed, the precise point decided in Leary v. Durham arose in a very recent case in that State, where it was held that the mere assignment or assessment of dower constitutes a breach of the covenant of warranty ; Lewis v. Lewis, 5 Richardson's Law (S. C.) R. 12. But it will be remembered that in South Carolina the covenant of warranty is, in obedience to a long course of decision there, treated as a covenant for seisin ; see Mackey v. Collins, 2 Nott & McCord (S. C), 186 ; and see also Williams ». Weatherbee, 1 Aikens (Vt.), 240. ' In Witty V. Hightower, 12 Sm. & Marsh. (Miss.) 478, the facts averred in the declaration were nearly the same as those in Waldron u. McCarty, supra, p. 161, and the declaration was held bad on demurrer. So in the more recent case of Burrus v. Wilkinson, 31 Mississippi, 537, where it was said, " until the pur- chaser has yielded possession to the superior title, and been dispossessed thereof, the contract of purchase must be considered as in existence, and any outstanding title acquired by him cannot amount to an eviction, but will be treated as a pur- chase of an outstanding title, which cannot be used in disparagement of the title derived from the original purchaser." In Plannah v. Henderson, 4 Indiana, 174, the facts were much the same, and the court considered that " the mere existence of the better title could not have constituted an eviction of the plaintiff. If he had yielded to it by giving up possession, or bought it in and continued his pos- session under it, the action might have been sustained," but it was decided that " the mere payment of the Judgment to avoid a sacrifice of the land on execu- tion, and even a consequent eviction, will not authorize a suit against the grantor on the covenant." In Reasoner v. Edmundson, 5 Indiana, 393, 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 evidence that the plain- tiff had either yielded up the possession or purchased the mortgagee's title, and 166 THE COVENANT FOR QDIET ENJOYMENT. It may, perhaps, be said that there should be a distinction taken between a lease and a purchase of the paramount title by the cove- it was lience properly held that there had been no eviction. " The case," said the court, " is clearly distinguishable from Huntu. Aniidon, 4 Hill (N. Y.)! 345, a case that goes farther in inferring an eviction from facts than any other we have met with." In Hunt v. Amidon (1 Hill, 147 ; s. c. 4 id. 345), the defendant had, for the consideration of $1,200, sold to the plaintiff's grantor, with a covenant of warranty, premises which were then incumbered by a mortgage, under fore- closure of which the premises were afterwards sold and bought for $470 by the plaintiff, who then brought an action of assumpsit for money paid to the vendor's use ; and Walworth, Ch., in delivering the opinion of the court, said : — " It is perfectly evident that if Hunt, instead of purchasing in the premises himself under the decree of foreclosure, had suffered them to be sold to a third person, and had delivered up the possession to the purchaser as directed by the decree of foreclosure, he could immediately have brought an action at law against Amidon, as assignee of the covenant, for quiet enjoyment contained in the deed from Amidon to Babcock, in which action he would have recovered the whole $1,200 mentioned in that deed as the consideration for the premises. The de- fendant, therefore, has been clearly benefited by the plaintiff's bidding in the premises himself at the Master's sale for the $470 which was due upon the decree for the debt and costs on the mortgage foreclosure. The question then arises, whether, upon equitable principles, the plaintiff was bound to stand aside and suffer his land to be sacrificed to a stranger for this smaller sum, and then to resort to his action at law upon the covenant in the deed to Babcock ; or whether the decree of foreclosure and sale, which undoubtedly contained the usual directions as provided for in the 135th rule of the Court of Chancery, that the purchaser should be let into possession 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 actual eviction of Hunt, by an action at law founded upon a title paramount to that which Amidon conveyed to Babcock with warranty." (And, up to this point, this case of Hunt v. Amidon has been affirmed by the very recent case of Cov^drey w. Coit, 44 New York, 382.) But the Chancellor went on to say : " It is at least doubtful whether an action at law could have been sustained 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 voluntarily to a stranger who claims by title paramount, or even to pay off an alleged incum- brance without suit, and then resort to his action upon the covenant in the deed." The remark that the grantee has no right to give up voluntarily to a stranger who claims by title paramount, is entirely justified by the authorities (see infra) \ and the expression, "or even to pay off an alleged incumbrance without suit," must, it is apprehended, be referred to the same meaning ; for it is generally held, that although it is absolutely necessary that the adverse claim should be hostilely asserted, yet that it is not necessary that the assertion should be made by a judgment, or even a suit, any more than it is necessary that an eviction, when actual, should be under legal process and the effect of a judgment, a decree or a suit is, in this relation, no more than an unequivocal assertion of the right THE COVENANT FOE QUIET ENJOYMENT. 167 nantee, inasmuch as iu case of a lease it is, in legal construction, the holder of the paramount title who is in possession, the posses- by the paramount claimant (see infra). In Fowler v. Poling, 6 Barbour's S. C. (N. Y.) 168, Edmonds, J., said, in delivering the opinion: "The grantee may surrender possession to the rightful owner, and that will be a sufficient ouster to entitle him to his action on the covenant of warranty. It is true the Chancellor said in Hunt v. Amidon, i:i the Court of Errors, that the grantee had no right to give up voluntarily to a stranger claiming by title para- mount; but his remark was obiter, and he was evidently mistaken." It would seem, however, that if the Chancellor meant that a grantor had no right to aban- don the possession, until, at least, a demand made by the paramount owner or something done by the grantee, his language is fully justified by authority. After a rapid review of some of the authorities, it was added, " From these conflicting authorities, I deduce the true rule in this State to be that there must be an actual disturbance of the possession, and that where the covenantee is actually out of 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 cove- nant is broken and an action will lie." In this case, the purchaser had, at the instance and request of his vendor, instituted proceedings iu partition between himself and the holders of the paramount title (the latter having a title to an un- divided part of the land), and had their share set off to them in severalty and surrendered possession to them. Under these circumstances, it was obviously held that there was an eviction pro tanto, and the remarks as to the purchaser being " actually out of possession," would seem not to be necessary to the deci- sion. In the very recent case of Bordewell v. Colie, 1 Lansing (N. Y.), 146, the decisions in Massachusetts were cited with approbation, and it was added : " The tendency of all courts governed by the rules of the common law is to favor and facilitate remedies on covenants for title, and to moderate the ancient rule, which, in many cases, is severe and unjust on the purchaser." In Paul V. Witman, 3 Watts & Serg. (Pa.) 407, however, Rogers, J., ob- served, "there must be a change of possession," which is unquestionably correct ; but the change of possession may be a constructive one, — there must be a cessa- tion 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 re-entry. In Paul v. Witman there was neither averment nor proof of any thing to support even a constructive eviction, and hence the court correctly said: "A judgment in ejectment, without more, is not an eviction; there must be a change of possession. But if the declaration had averred an eviction, and the proof had been that the covenantee had actually retired before the judgment, or had been compelled to take a lease under, or to purchase the good title, it is possible that he might have been held entitled to recover ; " and this was so decided in the recent case of Knepper v. Kurtz, 8 P. F. Smith (Pa.), 480, with the proper qualification that it was necessary that the adverse title or incumbrance should have been hostilely asserted (see supra, p. 148, and infra, p. 176). In the case of Poyntelli). Spencer, 6 Barr (Pa.), 257, Gibson, C. J., remarked : " Though a covenantee must actually go out of possession to bring himself within the words of the covenant, he need not wait till be is thrust out." If, however, the preced- 168 THE COVENANT FOB QUIET ENJOYMENT. sion of the tenant being that of the landlord, while in case of a purchase the possession remains in the covenantee. To this it may be answered, that, although in the latter case the covenantee in reality remains in possession, yet he is supposed to have been actually ousted, whereby all connection with his former title is dissolved, and then to have been reinstated under the paramount title.i In all the foregoing cases the purchase of the paramount title had been made after the establishment of the latter by a judgment or decree. But as it has been already seen that the authorities as to ouster in pais draw no distinction, save as to burden of proof, etc., between cases where the title has or has not been thus first established, so it will be found that no such distinction is taken as to constructive eviction ; ^ and it is now held that a purchase by a ing sentences are carefully read, it TTill be seen that this expression must not be construed too literally. These are, " If they (the holders of the better title) 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 leasing or purchasing from them. But for what purpose execute a writ of pos- session, and bring him back at the next moment as a lessee or a purchaser ? The ceremony would have been a ridiculous one. A forcible eviction on a recovery by title is not an indispensable ingredient in the breach of a warranty. The defendant 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 v. Dickerson, supra, p. 162, in accordance with modern authority. ' Poyntell v. Spencer, 6 Barr (Pa.), 257. It seems hardly necessary to re- mark that, in every case in which an eviction would be held to be caused by the purchase of the paramount title, the damages would be measured by the amount which had been fairly and bona fide paid for this purpose, and could never exceed that amount. '^ That is to say, no distinction is made as to a yielding up of the possession when the paramount title has, or when it has not been established by a judgment or decree, it being sufficient that its holder has either the right to obtain posses- sion himself, or to deprive the purchaser of it ; the only difference being, that when there is no such judgment, the covenantee retires at his peril, with the burden of proving that the adverse title was one to which he would have been compelled to yield. Where there is a judgment, it is held by some authorities to be prima facie evidence, and when the covenantor has proper notice of the action, it is conclusive evidence of the better title. If it be objected that when there is no judgment or decree of a court of competent jurisdiction, every door seems open to fraud, and a party may receive the possession of land with a cove- nant of warranty, and without ever having left that possession, collusively pur- THE COVENANT FOE QUIET ENJOYMENT. 169 covenantee of an outstanding paramount title, wlien that title is actually asserted, will constitute siich an eviction as will entitle him to damages upon his covenants for quiet enjoyment or of war- ranty, measured by the'amount he has thus paid. Thus, in a case in New Hampshire, the plaintiff, in his action on the covenant of warranty, proved a prior conveyance, by his cove- chase in any title, and then sue upon his covenant ; it may be replied, that when fraud is intended, it is easy to hide it behind a Judgment or decree of a court. It is impossible for courts to give a severe scrutiny to every decree or judgment which they pronounce, where there is a prima facie right to such a Judgment on one side, and no denial of that right on the other; nor, even if they had the power, would it be proper to do so. But this very circumstance has given rise to the familiar rule that although the Judgment of a court of competent Jurisdic- tion, acting within the scope of its authority, cannot be inquired into collaterally, but binds parties and privies to it, yet that it may always be impeached on the ground of fraud, and, of course, this rule equally applies to actions on the cove- nants for title ; Wilson v. McElwee, 1 Strobhart (S. C), 66. Even where there is no pretence of fraud or collusion, there seems but a single case in which, in the action on the covenant, the whole question of title cannot be gone into, and that is where the party bound by the covenant refuses, upon proper notice, to come in and defend. Having thus, by his own laches, lost the advantage of trying the question of title then, he must suffer for his neglect afterwards ; and even under these circumstances, the plaintiff is obliged to prove that the adverse title is not one derived from himself. Indeed, in proportion as the conclusiveness of the Judgment is increased, the temptation to fraud will increase also ; and it is, therefore, most for the interest of the covenantor that as little effect as possible be given to a Judgment to which he has not been a party or privy. But the advantage to be obtained by the cov- enantee from a collusive Judgment can always be counteracted. Such an advan- tage must be sought to be gained, if at all, by enabling him to purchase in the paramount title at a low price, and then recover from the covenantor the full con- sideration paid for the premises. But by limiting the damages, as is done in the case of the covenant against incumbrances, to the actual amount thus paid, every temptation to fraud is precluded, and the covenantor is always allowed, in miti- gation of damages, to give evidence of what the plaintiff has paid to buy in the outstanding title ; Tufts ». Adams, 8 Pick. (Mass.) 550 ; Cole v. Lee, 30 Maine, 392. And if the amount which he has thus paid be a nominal one, his damages will be nominal also; Leffingwell v. Elliot, 8 Pick. 457; s. o. 10 id. 204; Loomis V. Bedel, 11 N. Hamp. 87. There are dicta to a contrary effect in Martin v. •Atkinson, 7 Georgia, 237, where Lumpkin, J., in delivering the opinion, said: " Whenever a vendee, in order to protect his title, takes up an outstanding in- cumbrance, he is entitled only to be refunded the amount paid. But when the property is bona fide sold under a mortgage or Judgment lien, existing at the time of the contract, without fraud or connivance on the part of the vendee, and the vendee repurchases it, the price which he pays is no criterion whatever of the damage sustained." 170 THE COVENANT FOR QUIET ENJOYMENT. nantor, of part of the premises to other parties. The land was wild and uncultivated, and there was no actual possession by any one. Upon the death of one of the prior grantees, his interest in the land was sold by his administrator at public safe and purchased by the plaintiff, and it was held that these facts constituted an eviction.^ ' Loomis V. Bedel, 11 N. Hamp. 74. "It seems to be generally settled," said Parker, C. J., who delivered the opinion of the court, "that, in order to support an action upon a covenant of warranty, there must be something more than evidence of an outstanding paramount title. There must be 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 entry under the paramount title amounts to a breach of a covenant of warranty ; and the grantee may, upon demand, surrender the land to a claimant having a good title, and resort to his action ; Hamilton v. Cutts, 4 Mass. Rep. 349. But in Waldron v. McCarty, 3 Johns. 464, where there was an outstanding mortgage at the time of the conveyance to the plaintiff, and the premises were afterwards sold upon the mortgage in pursuance of a decree of the Court of Chancery, and purchased by the plaintiff, who then brought bis action upon the covenant of warranty in his deed, the court held that an entry and ex- pulsion 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 right would not be barred or forfeited should he forthwith purchase the premises from the claimant, to whose superior title he had thus yielded the possession. He might, on such purchase, immediately re-enter into the possession, and still maintain his action on the covenant. If, instead of this formality, he yields to the claims of a para- mount title, and purchases without any actual entry of the claimant under it, where is the substantial difference? For all practical purposes, his title under the grant to which the covenant is attached, and under which he originally en- tered, is as much defeated in the one case as in the other. He is, in fact, dispos- sessed, so far as that title is concerned. He is still in possession, but he is so under another title, adverse and paramount to his former one ; and his purchase is, therefore, equivalent to an entry of the claimant. It is an ouster by his con- sent, 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 title, and to purchase it. The grantor who conveys a defective title, with a covenant of warranty, has no reason to complain of this. No action can be maintained against him upon his covenant, in such case, except upon proof of the actual existence of a title superior to the one he conveyed, and which his grantee could not withstand at law; and if that proof is made our, with evidence that the title was asserted and yielded to, why should he be per- mitted to insist there must be a formal surrender of the possession, or actual THE COVENANT FOR QUIET ENJOYMENT. 171 So in a recent case in Vermont, the purcliaser having been sued by the holder of the paramount title, bought in that title before final judgment and in order to prevent being dispossessed of the land, and it was held that this was an eviction.^ entry, and that if this was not done there could be no breach of his covenant ? How would his interests be benefited by the going out and going back again ? The ouster, so far as holding under his title is concerned, is as effectual by a pur- chase 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. 690." The judgment below, in this case, was, however, properly set aside on the ground of the measure of damages, the court saying that there was no evidence of the amount which had been paid by the plaintiff for the purchase of the property, and that his damages must be measured by that amount unless it exceed the value of the land. ' Turner V. Goodrich, 3 Deane (Vt.), 709. "We have now the case," said Redfield, C. J., who delivered the opinion, " of a suit brought by one having an elder and better title, and, before final judgment, the covenantee, to prevent being dispossessed of the land, purchases in the title at a fair rate. This, no doubt, in justice and moral equity, is the same thing as eviction. As the covenant is intended to bind the -covenantor to defend not only the title but the possession, and the rule of damages adopted in this State is also intended to indemnify the purchaser for the loss of both, it is highly just and proper that he should recover such indemnity under the covenants of warranty. If the covenantee never taki'S possession, or if, having taken possession, the outstanding title is not asserted against him, he may have full indemnity by action upon the covenants of seisin. But when he is in possession of the land, and the suit is brought, or the title asserted in any way, perhaps, whereby it becomes impossible for the covenantee longer to maintain his possession, it is the same thing whether he yields without suit or after judgment, to a writ of seisin and possession, or buys in the outstand- ing title at a fair rate. Of course, if he yields to a claim of title, without suit or ■without judgment or notice to the covenantor to defend his title, he assumes the burden of showing the title, to which he yields, good, and so also if he purchases in the outstanding title ; and, in either case, he must rebut all possible implica- tion of collusion. But this is matter of evidence, and, when established, it 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 ob- tain the title, and all expenses necessary in the premises, which must extend to the costs of the suit, while pending, and counsel fees ; Pitkins v. Leavitt, 13 Verm. 379. A summary of the cases upon this point will be found in Rawle on Covenants, 234 ef seq. The author assumes that the American law is fully settled to this extent. The cases in which the law is so decided or so declared are as follows: Clapp v. Coble, 1 Dev. & Bat. Chan. R. 177 ; Sprague v. Baker, 17 Mass. 590. In this case, the outstanding title was, in fact, a mere incumbrance, and should have been so regarded probably ; but the court held it a breach of the covenant of warranty, as a perfect title would have been, if asserted and bought in by the covenantee to save being dispossessed under it ; Patten v. 172 THE COVENANT FOR QUIET ENJOYMENT. There are a few cases whose language might admit of miscon- struction, and whicli, therefore, it seems proper to notice here. Thus, in a case in Kentucky, ^ it was broadly said, " It could not be disputed that if a vendee, before eviction, purchase in an out- standing paramount title, he cannot continue in possession under his first purchase, and claim damages as for a breach of warranty, on account of the title he has acquired." In a previous case^ it had been laid down by the court that, " if a vendee acquire a par- amount title under such circumstances, the most' he can do in equity is to show the advances made, and claim to be considered as the agent and trustee of the vendor in acquiring the adverse title, or (if the vendor refuse so to consider him) to surrender the possession acquired from him and use the newly purchased title in warfare. He cannot continue in possession, and set up the new title in hostility to the old." But this language proceeds upon a misapplication of the familiar principle in equity, that if a mort- gagee, executor, trustee, tenant for life, &c., who have a limited interest, get an advantage by being in possession, or " behind the back " of the party interested in the subject-matter, he shall not retain it for his own benefit, but hold it in trust. ^ This, however, it is believed, was never applied to the case of a purchaser, with reference to his remedy on the covenants for title, as he can have no interest in setting up or procuring an adverse title except for the simple purpose of his own protection, and this protection the vendor has expressly covenanted to afford. The mistake has arisen from forgetting that the measure of damages is not, in such cases of purchase, the consideration-money and interest (which would McFarlane, 3 Penn. 425; Dickinson v. Voorhees, 7 Watts & Serg. 409 ; Loomis V. Bedel, 11 N. Hamp. 74; Brown v. Dickerson, 2 Jones (Pa.), 372. The conclusion of the author, which seems to be fully justified by the cases, is, ' That the weight of authority is in favor of the position that the purchase by the cove- nantee of an outstanding paramount title, when that title is actually asserted, will constitute such an eviction as will entitle him to damages upon his covenants for quiet enjoyment or of warranty, measured by the amount he has thus paid,' and necessary expenses of course, according to the decisions in this State and at common law. This rule, as applied to one who has entered into possession under his deed, is no doubt the true rule, and I have no doubt is fully sustained by the latest and best English decisions upon this subject." ' Vanmetre v. Griffith, 4 Dana (Ky.), 92; see this case, infra, p. 178. ^ Morgan v. Boone, 4 Monroe (Ky.), 297. ^ Nesbitt V. Tredennick, 1 Ball & Beatty (Irish Ch.), 46; Holeridge v. Gil- lespie, 2 Johns. Ch. 33; Burhans v. Van Zandt, 7 Barbour, S. C. (N. Y.) 102. THE COVENANT FOR QUIET ENJOYMENT. 173 open every door to fraud), but simply the amount which has been paid to purchase the paramount title. ^ ' The oases of Venable v. Beaucliamp, 3 Dana (Ky.), 323, and Coleman v. Coleman, id. 403, decided no more than that one tenant in common could not, before eviction, purchase in an outstanding title to the prejudice of his co-tenant, but that the purchase must enure jointly to both. Vanmetre v. Griffith, 4 Dana, 92, was quite correctly decided. One who had received land, with covenant of warranty, contracted with the paramount owner to buy in his title, in case it should prove, on legal investigation, to be the better one. Suit was brought against the covenantee, and notice given to the covenantor. Judgment was entered in favor of the paramount title by confession, and on a writ of possession the sheriff indorsed that he had delivered the possession to the plaintiff's agent, who then delivered it to the covenantee, and the latter then sued the representa- tives of his covenantor, who had died in the mean time, and judgment was con- fessed for the amount of the original purchase-money, with interest. For part of this judgment one of the administrators gave his own note and paid the bal- ance, 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, filed a bill to restrain the collection of the balance of the judgment, and to refund the excess over the amount thus paid by the cove- nantee. The Chancellor, under these circumstances, most properly decreed for the complainant, and the Court of Appeals affirmed the decree. With these facts in view, the remarks of Marshall, J., in the latter court, are perfectly appropriate : "If a judgment obtained," said he, " under such circumstances, and the effect of which, by operation of a previous contract made by the vendee, is to confirm the existing possession by uniting the paramount title to it, shall be allowed to have the further effect of severing the possession from the title under which it was originally held, and rendering the original vendor liable upon his warranty as for an eviction, whereby the vendee, beside the advantage of continuing in posses- sion, may gain the difference between the amount recoverable upon the warranty, and the sum which he has given for the paramount title, it is obvious that he will have gained his advantage at the expense of his vendor, by a contract made while he was certainly in possession under the vendor's title, and while the obligations of fidelity and good faith belonging to the condition of a vendee in possession under warranty, were resting upon him in their full force and vigor. To estab- lish such a consequence would be to admit that a vendee in possession may, by a contract made for his exclusive benefit, place himself in hostility to the title under which he acquired and holds possession ; and that he may, by means of the title and possession derived from his vendor, obtain an advantage at the expense and by the loss of the vendor." The results thus deprecated are, as has been said, prevented, or, as in this case, cured, not by denying a covenantee any remedy upon his covenant, but by strictly limiting his damages to the amount paid by him for the better title. The case of Woodward v. Allan, 3 Dana, 164, though perhaps more properly classified under the preceding head, may be referred to as showing that the law in Kentucky is in harmony with the more modern authorities elsewhere. In that case, there was a covenant for restitution of the consideration- 174 THE COVENANT FOR QUIET ENJOYMENT. It may also be observed that cases sometimes occur where courts of equity have brought before them the whole question of title, and money if the land should be lost. " If it be admitted," said Robertson, C. J., " that a covenant to be responsible if the land is lost is tantamount to a covenant of general warranty, and that, therefore, an eviction would be indispensable to the plaintiff's right to maintain this action, still we are clearly of the opinion that he proved on the trial every fact that was necessary to 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, after the judgment, surrendered to one of the lessors and leased the land of him.'' In Johnson v. Nyce, 17 Ohio, 66, the declaration averred a right of dower in the widow of a prior owner of the property, and upon her petition for dower being filed, the covenantee took defence, " and such proceedings were had therein, that afterwards, in November term, dower in all of said lands and premises was duly assigned and confirmed unto the said J. M. at the gross sum of $137.50, which the plaintiff was thereby ordered to pay to the said J. M., in full for her dower, &c., in sixty days after said November term; and, in default thereof, that execution issue as upon judgments at law, by means whereof the plaintiff has paid and been liable to pay a large sum of money," &c. On demurrer, it was held that this was no eviction. " We do not doubt,'' said Hitchcock, J., " that the covenant in the deed is sufficient to cover a claim for dower, provided the same be prosecuted to such a result that the covenantee is thereby deprived of even the temporary possession of the whole or any part of the land conveyed. It may be thought that a covenant against incumbrances is the appropriate cove- nant to meet such a case, but it is equally well met by the covenant of warranty. In order, however, to maintain an action upon the latter covenant, there must, as a general rule, have been an eviction, and this fact should appear from the decla- ration. There are exceptions, it is true, to this general rule, and in particular cases other matters have been held equivalent to an eviction. In the case of King V. Kerr, 5 Ohio, 154, the court say, in speaking of the covenant of warranty, ' this covenant is not broken until the grantee, his heirs or assignee, is evicted from or disturbed in the enjoyment of the premises, or a part of them, by the setting up of a superior or paramount title.' Still, in that case, it was determined that where, after a judgment in ejectment, the tenant remains in possession, claiming payment for improvements under the occupying claimant law, and while so remaining in possession purchases in the paramount title, the tenant may have an action upon the covenant of warranty against his grantor, although not actually evicted. In making this decision, the court was controlled by the principles of the occupying claimant law. Under that law, the occupant cannot be dispossessed until paid for his improvements. And, if the claimaint should neglect to make payment, the occupant must either lose the benefit of his improvements, or be delayed in the proceeding under his covenant. The court held that this case might be well considered as an exception to the general rule that no action could be sustained until actual eviction." The case of Tuite v. Miller, 5 West. Law Journal, 413 (not Tuite v. Miller, 10 Ohio, 383), was then mentioned and ap- proved. In that case, one-third of the rents and profits of the land had been set THE COVENANT FOR QUIET ENJOYMENT. 175 all the parties are before the court. This perhaps most frequently happens in the marshalling or administration of assets, some of the instances of which will be hereafter referred to.^ In these cases, where an equitable 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 is more relaxed, and it seems not necessary that even a payment to purchase the better title should have been made ; but, the para- mount riffht having been established, the amount of damages is equitably adjusted without making this essential.^ Such cases, however, it must be observed, are exceptional, and occur, perhaps, only when all the parties to the title are before the court, and their respective rights are capable of equitable adjustment. But, it may be asked, what then is the practical distinction be- tween a covenant of warranty and a covenant for seisin or against incumbrances ? The answer to this is, that the latter covenants assure the title, off to the widow for her dower, and made a charge upon it, and it was ordered that, unless payment was made, the land should be sold. This was held equiva- lent to an eviction, as it was also in the recent ease of McAlpin v. Woodruff, 11 Ohio State R. 128. But it was said in Johnson ii. Nyce, that in the case then before the court there had been no assignment of dower by metes and bounds, nor, according to the local statute, of one third of the rents. " The statute seems to have been entirely disregarded. True, a decree was made in the widow's favor against the plaintiff for $137.50, which was to be in full of dower. This, however, was not made a charge upon the land, and could in no shape act as an incumbrance upon it. It was a mere personal debt, to be enforced by execution. ... It had no operation to incumber the land. Had the one-third part of the land been set off by metes and bounds, and the widow put in possession, or had dower been assigned according to the statute, as in Tuite v. Miller, then the plaintiff might have had redress on the covenant of warranty. But, as the case is now presented, he can have no such redress.'' This case should be read in connec- tion with the one next reported, viz., Nyce 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. It is evident, from an examination of these two authorities, that they were decided under special circumstances. The Supreme Court seem to have determined, owing to the apparent disregard of the provisions of the local statute as to dower by the court which had pronounced the decree, that no re- covery should be had under these circumstances upon any of the covenants for title. With this end, the case of Nyce v. Obertz went very far. ' Infra, Ch. XV. ' See infra, Ch. IX. and XIV. 176 THE COVENANT FOR QUIET ENJOYMENT. and the purchase of the adverse claim has nothing to do with their breach, however it may affect the measure of tlie damages. If the title be defective, or if an incumbrance exist, the purchaser has a right of action which, as such, is not affected, either beneficially or injuriously, by the purchase of the paramount claim. Such a pur- chase merely affects the question of damages. And, moreover, the question whether the claim is or is not asserted, and if asserted, to what extent, has nothing to do with the right of action, — it is suffi- cient that such claim exists. 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 himself evicted to the extent of the purchase-money of such claim. However far the doctrine of constructive eviction may be supposed to have been car- ried, it is believed to be still absolutely necessary that the adverse claim should have been hostilely asserted. It is not necessary that the assertion should be made by a judgment or even a suit, any more than it is necessary that an eviction, when actual, should be under legal process. ^ The effect of a judgment, a decree, or a suit is, in this relation, no more than an unequivocal assertion of the right by the paramount claimant. According, therefore, to the weight of authority at the present day, the distinction is not whether there has or has not been a judgment in favor of the paramount claim, but whether such claim has or has not been adversarily asserted.^ This is well illustrated by a case in Pennsylvania, where a cove- nantor, having neglected to pay the purchase-money due to the Commonwealth, it was voluntarily, and without claim being made by the latter, paid by the covenantee, who, it was held, was not, under these circumstances, entitled to recover upon his covenant of warranty, as the possession had never been disturbed or threatened.^ ' See supra, p. 145 et seq. ' The difference thus sketched between these covenants was approved in the late case of Funk v. Creswell, 5 Clarke (Iowa), 89. ^ Patton V. McFarlaue, 3 Penn. 419. " If a recovery in this case upon the covenant of general warranty," said Kennedy, J., who delivered the opinion of the court, " can be supported without either allegation or proof of an eviction, it would, in effect, be deciding that the covenant of general warranty contains within it each of these five covenants for title, which would be a novel idea to conveyancers and professional men. Because I cannot conceive of any defect or objection that can be discovered which may affect either the possession or the THE COVENANT FOE QUIET ENJOYMENT. 177 So, in a later case, the same court held that " until an eviction of the grantee, or a demand made of the land from him by one having sufficiency of the title to invest the vendee completely with the estate professed to be conveyed, that may not, -with as much propriety as the present case, be embraced in and considered as provided against by the covenant of general war- ranty, and an action supported for a breach of it, without either averring or proving an eviction. It comes to this, that the covenant of general warranty may either be considered as a covenant for seisin, of good right to convey, of quiet enjoyment, of indemnity against incumbrance, or for further assurance, as may best suit the wishes of the vendee. But it has been decided by the Supreme Court of the State of New York, when composed of judges alike distinguished for their talents and legal intelligence, that a general warranty contained no cov- enant of seisin, either express or implied; Vanderkarr v. Vanderkarr, 11 Johns. 122. It was the inaptitude of the covenant of general warranty to accommodate itself to the various intentions of the parties, as well as the circumstances con- nected with the titles to the land, that first gave rise to these special covenants, and recommended them to general use, which repudiates the idea of their being contained within it. . . . Although the Commonwealth had a claim against the land in the case under consideration, yet she had taken no step whatever, after the conveyance of it to McFarlane, to enforce the payment of the money. Whether she would have done so, was uncertain, and Patton had a right under his covenant of warranty with McFarlane, to avail himself of all the indulgence that might be given by delay on the part of the Commonwealth to proceed against the laud, to have the money collected by a sale of it. Although it may be con- sidered certain that the payment of the money would have been compelled some day or other, yet it might make some difference to Patton whether he was to be called upon immediately, at the will of McFarlane, for payment, or to have it postponed to a distant day by forbearance on the part of the Commonwealth to proceed to collect it." So far, however, as this case approved Waldron v. McCarty, 3 Johns. 417, it should be observed that that case has been since dis- tinctly overruled in Pennsylvania (Brown v. Dickerson, 2 Jones, 372), as well as elsewhere (see supra, p. 161), and would not be recognized as law at the present day in New York ; Hunt v. Amidon, 4 Hill, 349 ; Fowler v. Poling, 6 Barbour's S. C. 168. So in a case in Missouri, Shelton v. Pease, 10 Missouri, 482, it was said, " The covenant declared on is to warrant and defend the title and possession against all liens, and especially against the incumbrance specified in the deed. There is no covenant that the grantor will pay oif the mortgage, nor is any such covenant implied by the covenant of general warranty. Nor is the payment of the mortgage by the grantee any breach of the covenant of general warranty or of the covenant of quiet enjoyment. It seems to be well settled that a disturbance of the possession is necessary to constitute a breach of these cove- nants. Among the numerous cases which are to be met with on this subject, both in the United States and in England, I have met with none in which a mere pay- ment of money for the purpose of buying in a paramount title or extinguishing a mortgage, has been held to be a breach of the covenant of warranty. The case of Sprague v. Baker, 17 Mass. 686, seems to countenance this idea to some extent, but, even in that case, whose authority has been much questioned, the payment 12 178 THE COVENANT FOR QUIET ENJOYMENT. a better title for it, tlie covenant of warranty could not be said to be broken;"! and, more recently, that "there must be proof at least of an involuntary loss of possession." ^ So, in a recent case of the mortgage was made under threats of a suit for possession." The decision in Caldwell v. Bower, 17 Missouri, 668, is to the same effect. It was not, how- ever, necessary to deny the authority of Sprague v. Baker, which, on examina- tion, will, it is thought, be found to have been correctly decided (see supra, p. 162) ; nor is the author aware that the authority of that case has on this point been questioned. It has been virtually overruled in Massachusetts on another and totallj' different point, viz., the capacity of the covenant against incum- brances for running with the land ; see infra, Ch. X. ' Dickinson v. Voorhees, 7 Watts & Serg. (Pa.) 357. ^ Dobbins v. Brown, 2 Jones (Pa.), 79; see this case noticed infra, p. 182. In the recent case of Knepper v. Kurtz, 8 P. F. Smith (Pa.), 482, real estate was devised to the testator's son, charged with the payment of certain legacies, and the devisee conveyed to the defendant, who agreed to convey the land to the plaintiff clear of all incumbrance, and afterwards delivered a deed to the latter containing a covenant of general warranty. The plaintiff, on discover- ing the existence of the legacies, notified the defendant to discharge the same, and afterwards the plaintiff paid them himself, and brought this action to recover the amount. The court below, whose opinion was affirmed in error, thus stated the law, in conformity with the text : " Outside of the legal profession, the cove- nant of warranty is regarded a panacea for every defect that can be alleged against the title of the grantor, and scriveners, especially in the rural districts, rarely think of the necessity for any other. It was, doubtless, supposed in this, that the insertion of the covenant in the deed fully met the requirements of the articles of agreement providing that the land should be conveyed clear of incum- brances. There is, however, a very broad distinction between a covenant of general warranty and a covenant against incumbrances. In the latter, where incumbrances exist, the covenant is broken as soon as entered into, while in the former the covenant is broken only by an eviction. In order to give the cove- nantee a remedy against his warrantor, he must allege and prove an eviction, either actual or constructive. The eviction is actual when the covenantee is dis- possessed of the land, or when a judgment at law is rendered, which may result in actual dispossession ; and it is constructive where the covenantee, by reason of the paramount title, has never been able to obtain the possession ; or when, after the adverse title has been established, the covenantee has either purchased or taken a lease under such title, without any actual change of possession ; or where he has purchased or taken a lease, the adverse title not having been established. These instances of constructive eviction relate more particularly to cases where there is an outstanding paramount title, and not to cases in which the party may be dispo.ssessed by the enforcement of a Uen existing against the land conveyed. In the case at bar there was no eviction, in the legal sense of that term, either actual or constructive, which could give to the covenantee the right to commence his action on the covenant of warranty. To allow him to do so would be to abolish the practical distinction between the covenant of warranty and the cove- THE COVENANT FOR QUIET ENJOYMENT. 179 in New York, certain land of wliich a part liad been returned to the comptroller and sold by him for unpaid taxes, was subsequently conveyed with a covenant for quiet enjoyment to a purchaser, who on the last day for the redemption of the land paid the amount of taxes, with charges, &c., and thereby redeemed the land, and then brought suit on his covenant ; but it was held by the court below that the action could not be maintained, there having been no pay- ment of money at the request of tlie defendant and no eviction, and this ruling was sustained by the Supreme Court, which held that as there was no covenant against incumbrances, the plaintiff had no right to pay voluntarily and without any request on the part of the defendant and then charge him with such payment.^ A different nant against incumbrances. If suits had been brought by the legatees, and the warrantor had been notified to defend, a judgment thereon rendered against the plaintiffs would, on payment thereof, have placed them in a position to maintain this action, as the law would not require them to submit to the ceremony of an actual dispossession ; but having paid the legatees voluntarily and without suit, when it is possible, if an opportunity had been offered, the covenantor might have been able to show that the incumbrances were discharged, they are within the rule established in Patton v. McFarlane, 3 Penn. R. 425. Notice to the cove- nantor to pay and discharge the legacies is no evidence of an eviction, as insisted upon by the plaintiffs. Had a suit been threatened, and the plaintiffs were likely to be disturbed in their possession, there would be more plausibility in the posi- tion ; but even then the weight of the authorities would require us to hold there was no eviction." ' McCoy V. Lord, 19 Barbour's S. C. (N. Y.) 18. " Upon principle," said Greene, J., who delivered the opinion, " this seems a very clear case. The plain- tiffs purchased a piece of land of the defendant, and, in the conveyance which they took, provided for their own security by such a covenant as they thought proper to exact and the defendant was willing to execute. The rights of the par- ties under that covenant are well settled and understood, and there is no pretence that it has been broken. But it is supposed that there is something in the peculiar circumstances of this case from which the plaintiffs derived a right to pay the money in question, and charge the defendant with it in this action. And the cases of Hunt v. Amidon, 4 Hill, 34.5, McCrea v. Purmort, 16 Wendell, 460, s. C. 5 Paige, 620, and Exall v. Partridge, 8 Durn. & East, 308, are cited. These cases are all distinguishable from the case under consideration, by peculiar facts existing in each case upon which the judgment of the court was clearly founded. This fact renders criticism, which is precluded by the authority of the last two cases, unnecessary in all. It is sufficient that none of them afford any authority for this action. The plaintiffs' covenant for quiet enjoyment has never been broken, for the reason that there never was any eviction. They were not com- pelled by legal process to pay, as was the case in Hunt v. Amidon and Exall v. Partridge. And as they had no covenant against incumbrances, they had no right to pay them voluntarily and without any request on the part of the defend- 180 THE COVENANT FOR QUIET ENJOYMENT. rule might, however, apply in the case of a covenant for quiet en- joyment, when expressed as is usual in English conveyances,-' and in a recent case in Maine, it has been held that where the cov- enant was one of non-claim,^ " the purchaser was not bound to wait until such measures were taken to deprive him of possession, when his remedy against the defendant might be fruitless." ^ So, where in Iowa there is a statutory form of a covenant of warranty, which is considered " to include and imply every lesser covenant for title," it was held, that where a grantor refused to pay off a tax which was a lien upon the land conveyed, his grantee might pay the same, and recover the amount so paid, in an action on the covenant.* ant, and charge him with such payment. It is no answer to say that it would be a hardship for the plaintiffs to be compelled to wait until they were evicted, and then sue for the purchase-money and lose the enhanced value of the land and improvements. But for the covenant for quiet enjoyment they could not even recover the purchase-money in a case free from fraud ; and if they desired a remedy adequate to other contingencies, they should have provided for it by appropriate covenants. These covenants have been long in use, and the rights and remedies of parties under them have been long and well settled ; and it is a sufficient answer to this action, under such circumstances, that there is no prece- dent for it.'' ' That is to say, that the purchaser shall enjoy without any let, suit, &c., a7id that free from all incumbrances, &c., supra, p. 25, &c. Such was the form of the covenant in Hall v. Dean, 13 Johns. 105, where it was held that the purchaser was entitled to recover the amount he had voluntarily paid to extinguish the incumbrance. ' See supra, p. 29. ^ Cole V. Lee, 30 Maine, 392. " But," continued the court, " as under a deed containing the common covenant of warranty against incumbrances, he, as grantee, might remove them, and resort to the covenant of his warrantor in an action for indemnification." If " the common covenant" here referred to be the ordinary covenant of warranty as expressed, supra, p. 28, then these remarks are apparently inconsistent with the course of decision in Pennsylvania and New York, noticed in the text. But if the covenant be indeed a warranty against incumbrances, the case would, it is apprehended, fall within the distinction no- ticed supra, in note 1. The case itself was simply one of a mortgage given by the defendant to one ISTickerson, and a subsequent mortgage by the former to the plaintiff with a covenant of warranty, which latter mortgage was afterwards ex- tinguished by a quitclaim deed from the defendant to the plaintiff, containing the covenant that neither he nor his heirs nor any one claiming under him or them should, by any way or means, claim or demand any right or title to the premises. The plaintiff bought in the Nickerson mortgage and took an assignment of it, and it was held, in a suit upon the covenant, that he was entitled to recover the amount paid by him. ■• Funk V. Creswell, 5 Clarke (Iowa), 91. THE COVENANT FOR QUIET ENJOYMENT. 181 In the preceding classes of cases which have thus b6en attempted to be considered, the loss for which the benefit of the covenant was invoked, has been that of the land itself, or of some corporeal right incident to its enjoyment. But in case the subject of the loss has been an incorporeal right annexed or incident to the land, or some- thing which represented, or stood in the place of the land, there have been at least two decisions to the effect that such a loss is not within the scope of a covenant of warranty. In the case of Mitchell v. Warner, decided in Connecticut, in 1825,^ a tract of land, through which ran a stream of water, was conveyed to a purchaser with a covenant of warranty, and the water having been, under paramount title, diverted from the land, it was held that the covenant was not broken, either by the existence of the paramount right, or by the actual entry and diversion of the water in pursuance of it. But it may be observed of this decision, that although authorities were cited to show that, at common law, warranty extended to rents, commons, " and all things issuing out of the land," and to incorporeal hereditaments, yet the court pro- ceeded upon the distinction that these authorities could not have meant to include incorporeal hereditaments which were not tene' ments, and it was said that water and a right to draw water were indeed incorporeal hereditaments, but not tenements, as not being of a permanent nature. Such a distinction was not, however, taken in the authorities thus cited,^ and seems open to much objection, for it is elementary law that " if a man grants all his lands, he grants thereby all his mines of metals and other fossils, his woods, his waters, and his houses, as well as his fields and meadows, and by the name of land, which is nomen generalissimum, every thing ' 6 Conn. 497. = Co. Litt. 46, 48, 388, 389 ; Touchstone, 184 ; 2 Black. Comm. 18 ; Pomfret V. Ricroft, 1 Saunders, 322; Bally v. Wells, 3 Wilson, 26. "If he that hath a rent, common, or any profit out of the land in tail, disseise the tenant of the land and make a feoffment of the land, and warrant the land to the fe9ffee and his heirs, regularly the warranty doth extend to all things issuing out of the land ; that is to say, to warrant the land in such plight and manner as it was at the hand of the feofifer at the time of the feoffment with warrantie, and the feoffee shall vouch as of lands discharged of the rent, &c., at the time of the feoffment made ; " Co. Litt. 388 b. The passage in the Touchstone is, " A warranty indeed may be annexed to estates of inheritance or freehold, and that not only of corpo- real things which pass by livery, as houses, lands, and the like, but also of incor- poreal things which lie in grant, as advowsons, rents, commons, estovers, and the like, which issue out of lands or tenements." 182 THE COVENANT FOR QUIET ENJOYMENT. terrestrial shall pass," ^ and it would seem natural to suppose that when a warranty accompanied such a grant, its scope was coexten- sive with the subject-matter.^ Hence, in Pennsylvania, a covenant for quiet enjoyment in the lease of a furnace and grist-mill has been held to be broken by the diversion, under paramount right, of the water of the stream ; ^ and very recently, in the same State, the case of Mitchell v. Warner has been pronounced to be " an ill- considered case, and opposed to the teachings of all the elementary writers on common law." ^ In Dobbins v. Brown, decided in Pennsylvania in 1849,^ the de- fendant, being the owner of certain lots, executed a deed, by which, in consideration of the benefit to be derived to him frona the open- ing of the Pennsylvania Canal through the lots, he agreed that the agents of the Commonwealth might enter upon, occupy, and keep so much of them as should be 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 ' 2 Black. Coram. 18. ' It was likewise decided in Wheelock v. Thayer, 16 Pick. (Mass.) 70, that the benefit of a covenant of warranty contained in a grant of a right of drawing water from a pond would not enure to a subsequent purchaser of this right, " aa it could not run with the land, as no land was granted, and to make a covenant run with the land it is not sufficient that it is of and concerning land." Such a distinction is very technical and unsupported by authority, and this case and that of Mitchell v. Warner have been questioned in the note to Spencer's case, 1 Smith's Leading Cases. The subsequent case in Connecticut of Griswold v. Allen, 22 Conn. 89, was decided merely on the ground that the grant was of a limited privilege, and the covenant coextensive with the grant. i* Peters v. Grubb, 9 Harris (Pa.), 465. So, where the plaintiff, in an action on his grantor's covenant of warranty, offered to prove that, at the date of the deed, there had been a house on the premises, which had been since removed by a former tenant, under a prior agreement between him and the grantor, by which the former was to be at liberty to remove the building whenever his term expired, it was considered that the mere statement of the case was the strongest argument that the removal was a breach of the covenant. "What," it was said, " is a more thorough eviction than the absolute removal or destruction of the property conveyed, if the act is done in pursuance of a title superior to that of the grantor at the date of the deed, and what would constitute a more complete breach of the covenant against the grantor and his heirs, than the removal of the house by a title derived from him, anterior to his deed to the plaintiff ? " West v. Stewart, 7 Barr (Pa.), 123. " Wilson V. Cochran, 10 Wright (Pa.), 233. ' 2 Jones (Pa.), 75. THE COVENANT FOR QUIET ENJOYMENT. 183 in the following year the canal was, by authority of the Common- wealth and notwithstanding the plaintiff's resistance, laid out and constructed across the lots, occupying nearly one-third their surface, whereupon the plaintiffs brought suit on the covenant, and at the trial obtained, under the charge of the court below, a verdict for about one-third of the consideration money. ^ But the judgment was reversed by the Supreme Court on the ground, first, that a cov- enant of warranty does not extend to an entry by the Commonwealth in the exercise of her right of eminent domain ; secondly, that there had been no eviction of the land, but at most an interruption of tlie enjoyment of an easement; thirdly, that the defendant's release to the Commonwealth was no eviction, being merely a release of a claim to compensation, which could not have fallen within the ancient warranty, which had regard to things corporeal, and therefore could not fall within the modern covenant ; and fourthly, that the release could not pass a right of entry to the Commonwealth, inasmuch as that right was in her from the beginning.^ ' The charge of the court as to the right to recover was as follo-vvs : " The alleged breach of warranty is the eviction by the Commonwealth under a prior authority or license given by defendant. This eviction, it seems, is but a partial one in point of fact thus far. Was the eviction to the prejudice of plaintiff, and one warranted against by defendant ? Certainly, but not absolutely and without qualification. It is true the Commonwealth have the right, exercised under cer- tain conditions, provided for in the Constitution (§ 10, Bill of Eights) ; for with- out it makes just compensation it is not easy to find in it even any other rights than has any private citizen, except it be that it may exercise the right and then make compensation, whereas a private citizen must precede it with the compensa- tion and consent of the owner. The consent may be already considered as given to the Commonwealth by every citizen owning property, yet it must be understood upon the express stipulations of the Constitution. That right itself may be con- sidered inherent in the government ; so is the right to compensation in the citizen. This general warranty in the deed is not broken by the mere exercise of this right on the part of the Commonwealth. But then this right of the citizen to require damages, or compensation therefor, is so complete and extensive that it cannot be abridged by statute. The right is reserved to the citizen by the Constitution, and there is no legislative authority to take it away or diminish it. This right, then, is warranted to plaintiffs by this deed. And if this right was released or conveyed, and so destroyed by the warrantor prior to his warranty to plaintiffs, it is very clear that, upon the eviction under it, the covenant is broken, and the warrantee or covenantee is entitled to recover from his warrantor. This is most certainly right and just, and nothing more. Upon this principle we charge you the plaintiffs are entitled to recover, if such a state of facts is shown." ■^ " In England," said the court, "the feudal warranty was superseded by a covenant of warranty, which, in turn, seems to have given place in that country, 184 THE COVENANT FOR QUIET ENJOYMENT. The first of these grounds of decision is unquestionably correct, and it has not only been recently reaffirmed in Pennsylvania that but in few of the American States, to what conveyancers call the five common covenants of title; namely, a covenant of seisin, a covenant that the grantor had ■ a right to convey, a covenant for quiet enjoyment, an4 a covenant for further assurance ; for the last of which Chancellor Kent substitutes the covenant of war- ranty, still retained by us, and on which this action is brought. It has been thought by country scriveners, and even by members of the profession, to contain the elements of all the rest ; but the terms of it are too specific to secure the grantee against every disturbance by those who may have a better title. It binds the grantor to defend the possession against every claimant of it by right, and it is consequently a covenant against rightful eviction. To maintain an action for a breach of it, as maybe seen in Clark v. McAnulty, 3 Serg. & Rawle 364, Paul v. Witman, 3 Watts & Serg. 407, and in the cases collected in a note to 4 Kent, 471, an eviction must be laid and proved, not necessarily by process or the application of physical force, but by the legal force of an irresistible title. There must be proof at least of an involuntary loss of the possession. " It would scarce be thought that a covenant of warranty extends to an entry by the authority of the State, in the exercise of its eminent domain. Like any other covenant, it must be restrained to what was supposed to be the matter in view; and no grantor, who warrants the possession, dreams that he covenants against the entry of the State to make a railroad or a canal ; nor can it be a sound interpretation of the contract that would make him liable for it. An explicit covenant against all the world would bind him, but the law is not so unreasonable as to imply it. The entry of the public agents, and the occupancy of the ground, were not a breach of the warranty. " Nor was it an eviction even of the ground taken for public use ; certainly it was not a disseisin. The entry was on the enjoyment of an easement, which was, at most, a disturbance that left the seisin, and a qualified use of the posses- sion, in the grantee. If the subject-matter were, in other respects, within a cov- enant for quiet enjoyment, the public invasion of it might have been a breach of it ; but it was not an eviction. In contemplation of law, the grantee was still the owner and possessor, and might have gained an indefeasible title to the prop- erty, 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 fran- chise, reserved from the beginning. He might lay pipes or open a quarry under the canal, or enter on any other enjoyment of the soil that would not interfere with the works or impede the navigation . " Was the antecedent release of ultimate compensation an eviction ? An evic- tion of what? Of a right to claim. Strange subject of an eviction! Having been executed before the conveyance, the release, if an eviction of any right, was an eviction of the grantor's right, for the grantee could not be evicted of what he had not received. The construction of the canal was subsequent to the convey- ance ; and if there was an eviction at all, it was not by the sealing of the release, but by the entry of the State, which, we have seen, was not a disseisin within the warranty. The release was, if possible, still less so. The claim to compensation, being no more than the benefit of a chance, was an ideal thing ; and, though of THE COVENANT FOE QUIET ENJOYMENT. 185 the exercise of the right of eminent domain is no breacli of the covenants for title,^ but the doctrine has been in other States very recently applied in a peculiar class of cases, which have been already noticed.^ But as to the other grounds of the decision, some exception may perhaps be taken. The position that there had been no eviction of the land, but merely an interruption of the enjoyment of an easement, is met by the numerous authorities which decide that such an interruption, when made by title, by an individual is a breach of the covenants for quiet enjoyment or of warranty.^ The position that the defendant's release to the Commonwealth was no breach of the modern covenant, because it would have been, as was supposed, no breach of the ancient warranty, would seem to be not altogether accurate either as to premises or conclusion, as the latter did, as has been seen, extend to many incorporeal heredita- ments ; * and even if it did not, the modern covenants were ex- appreciable value, it would not have fallen within the ancient warranty, which had regard to things corporeal, and differed from its successor chiefly in regard to the voucher to warranty and the recompense in value. It, therefore, cannot fall within the modern covenant. " A part of the argument has been that the release passed a right of entry to the State, as well as extinguished the compensation for it. But the releasor could not convey a right that was in the State from the beginning, and one that could be exercised without his consent on the single condition of compensating the owner. The release forestalled the compensation, and it did no more. It was not a breach of a subsequent and prospective covenant, not even against incumbrances ; and, running as it did with the land, it could not, by any con- struction, be more than a clog on the enjoyment.'' ' Bailey v. Miltenberger, 7 Casey (Pa.), 37, and see supra, p. 140. ° Cases in which slaves having been sold with a covenant of warranty that they were slaves for life, the covenant has been held not broken by the subse- quent emancipation of the slaves under the proclamation of 1864 ; supra, p. 142. ^ See supra, pp. 145 et seq. * Thus it will be found in the Year Book 43 Ed. III. 25, and 9 Hen. VI. 56, that a warrantia cJiartce will lie on the grant of an advowson with warranty, and see supra, p. 13, note. The ancient warranty was, moreover, before its disuse, extended to many things which it would not formerly have been held to embrace ; for although Coke says." a warrantie does not extend to any lease, though it be for many thousand years, or to estates of tenant by statute staple or merchant, or elegit or any other chattel, but only to freehold or inheritance ; " Co. Litt. 389 ; yet the case of Pinoombe v. Rudge, Hobart, 3, shows that in the seventeenth century, warranty, when annexed to the assignment of a leasehold, was used as a personal covenant ; supra, p. 16. And it has been recently held that where the sub- . ject of a conveyance lay in grant and not in livery, and was therefore insuscepti- 186 THE COTENANT FOR QUIET ENJOYMENT. pressly introduced, among other reasons, for tlie very purpose of extending tlie scope of tlie warranty which they superseded.^ And ble of any other than a constructive seisin, any eviction which might happen must consequently be of the same nature as the possession. Thus, in Lukens v. Nichol- son, 4 Philadelphia R. 22, itwas said, "This case turns in substance on the question whether the assignee of a rent reserved on a conveyance in fee, whose estate is defeated by his own failure to put the deed of assignment on record, and the subsequent execution of a mortgage by the assignor, can recover compensation from the latter by an action on a covenant of special warranty contained in the 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 rent by the sheriff under a levari facias. It is undoubtedly true that such a sale is not an actual dispossession, and that no one can be said to be evicted, under ordi- nary circumstances, until he is actually dispossessed. But it is equally true that when dispossession is impossible, as when the plaintiff has not been and could not be possessed, proof of an actual ouster will be dispensed with, and it will be enough to show that he has been deprived of all power or possibility of enjoy- ment, by a default on the part of the defendant, which is, in other respects, such as to amount to a breach of the warranty. Thus, when the warrantor grants land which is at the time held adversely by third persons, under a paramount title, the grantee will not be bound to go on the land at the risk of an action, merely for the purpose of being turned off again, because the law will not make the per- formance of a vain or impossible act a condition precedent to the vindication of a right in other respects perfect; Rawle on Covenants for Title, 262, 266. The law was so held in Curtis v. Deering, 12 Maine, 449, and the entry of a grantee under a deed duly recorded, held to be a breach of a warranty con- tained in a prior unrecorded mortgage, although the mortgagee had never entered, and consequently could not be actually dispossessed. This decision was cited and followed in Maeder v. The City of 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 title was good when originally granted. Applying these principles to the present case, we find that the estate warranted lying in grant, and not in livery, was insusceptible of an actual or of any other than a constructive seisin, and that any eviction which might happen must consequently be of the same nature as the possession. And it is equally plain that the sheriff's sale stripped the plaintiff of the whole right and title to the rent, and, by taking away the right to possess, necessarily took with it the only posses- sion which can exist in the case of an incorporeal hereditament. An attornment by the tenant of the land to the purchaser might perhaps have been requisite had the question arisen on a grant at common law, but no attornment is 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 ' As has nowhere been better expressed than by the learned judge who deliv- ered the opinion in Dobbins v. Brown ; see Stewart v. West, 2 Harris (Pa.) , 338 ; supra, p. 182. THE COVENANT FOR QUIET ENJOYMENT. 187 as to tlie position that the release could not pass a right of entry to the Commonwealth, inasmuch as that right was in her from the has indeed been said that it was the plaintiff's duty to wait until some act was done or claim made adversely by the purchaser, and then, and not till then, pro- ceed on the warranty. But those who urge this argument forget that the sale left the plaintiff without any right to the rent, or means of redress against the tenant of the land out of which the rent issued ; that any payment to him would have been a mispayment ; that any suit which he might have brought, or distress which he could have levied, would have been destitute of legal validity, and would necessarily have 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 period, without compensation, in attendance upon the pleasure of others, he was necessarily en- titled to sue as soon as the sale was made, and we consequently discharge the rule to show cause why there should not be a new trial." The case of Kinney v. McCullough, 1 Sandford's Ch. E. 370, may be here noticed. The defendant and one Halsey, being the owners, as copart- ners, of certain valuable stores, which were subject to two mortgages, the former, at the dissolution of the partnership, sold his undivided interest to the latter, who assumed, as part of the consideration, the payment of the mortgages which were exempted from the covenants for quiet enjoyment which the deed contained. The purchaser then executed another mortgage to the complainant, who foreclosed it, and at the sale bought the stores himself The lien of the prior mortgages was not divested by this sale, and they were subsequently fore- closed and the property sold again while in the hands of the complainant, and the money brought into court for distribution, when it appeared that at the time of the sale of the stores by the defendant he had agreed to assume the payment of another mortgage to one Phillipon, which they had jointly given for a debt of the firm, but which had not been then placed on record. He did not, however, pay the mortgage, but, with the intention of throwing the debt upon the stores, caused it to be recorded just before the execution of the mortgage under which the complainant purchased. The mortgagee was, therefore, entitled to payment out of the surplus remaining after the two oldest mortgages had been satisfied, and this consumed the whole fund, leaving nothing for the complainant, who thereupon filed a bill against the defendant for payment of the amount thus lost. His right to a decree was sufficiently obvious, but it was objected, on behalf of the defendant, that the complainant had a sufficient remedy at law upon the de- fendant's covenants on the sale to his late partner, the benefit of which had passed to the complainant ; but the court said, " This would have been the case, unques- tionably, if Philhpon's mortgage had been foreclosed while the complainant remained in possession, and the complainant had been ousted thereby. But no such eviction has occurred. The complainant was turned out by a title paramount to both, but which left to him a surplus in money, not a portion of the land. He has been evicted from that surplus by Phillipon's mortgage. This is not such a legal eviction as will sustain an action at law upon the covenants in the convey- ance to Halsey.'' In support of this point, however, the learned Vice-Chancellor relied on the earlier New York cases, which have been already referred to as having been over- 188 THE COVENANT FOR QUIET ENJOYMENT. beginning, the proposition as thus broadly stated must be denied. For although the right of eminent domain is one paramount to the enjoyment of all the land within the borders of a State, yet, under the constitution of all the States, it cannot be exercised unless compensation be first made, or at least provided to the owner ,i and, without such compensation, any taking of private property for public use is an unlawful taking.^ But the release by the owner of his right to compensation makes that lawful which otherwise would be unlawful,^ and it is difficult to see the distinction between the release of such a right to the Commonwealth and the grant to a stranger of the right to construct a canal or railroad upon the land, whose exercise, under all the authorities, would have been a breach of the covenant.* ruled, supra, p. 161 ; and if, indeed, the broad position be taken tbat an eviction, in order to come within the scope of a covenant of warranty, must be of the land itself, it would seem to follow that, if a series of conveyances should be made, each containing a general covenant of warranty, and the last purchaser should be evicted by reason of a title paramount to all of them, and should recover dam- ages from his immediate vendor, the latter would not, on payment of these damages, have any right to resort to the covenants of those prior to himself in the chain of title, because he had not been evicted from the land, but from the consideration-money he had received at its sale by him. Such a result is, however, met by a numerous class of cases (infra, Ch. IX.), which decide that each vendor, on payment of the damages recovered against himself, is entitled to recover them back from any of the previous vendors within whose covenants the loss may be comprised ; and although these cases may perhaps be more properly referred to the principle that the first covenantor has engaged not only to warrant and defend the covenantee, but also his assigns, yet the application of the strict rule referred to would prevent so obvious a course of decision. ' See, generally, Cooley on Constitutional Limitations, c. 15, which is one of those thoughtful and able treatises which so benefit the profession. ^ Thus, although of course the Commonwealth herself cannot be restrained for the unlawful exercise of the right of eminent domain, yet nothing is better settled than that those to whom she delegates that right can be restrained to pre- cisely the same extent as though the interruption were made by a stranger ; Bo- naparte t). C. & A. R. R., 1 Baldwin's Cir. Ct. R. 205 ; Redfield on Railways, c. 29, passim. ' " The release," says the opinion, " forestalled the compensation, and it did no more." True ; but it did do that, and it was the very forestalling of the com- pensation which worked the injury. * The decision in New York of Murray v. Jayne, 8 Barb. S. C. 612, may be incidentally referred to as corroborative of the suggestion thus made as to the decision 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 upon and occupy such lands as were necessary for the purposes of the act, upon purchase being made from the owners, or by an THE COVENANT FOB QUIET ENJOYMENT. 189 In a subsequent case in Pennsylvania,^ the owner of a furnace and grist-mill had made an offer to the Commonwealth that if the appraisement and payment of damages in the manner therein provided ; and in order to raise funds for the payment of such purchase-money, or damages, the commissioners had authority to levy and collect taxes for the lands, and to sell them in default of payment. By a subsequent act they were authorized to open a canal or ditch, and, for that purpose, to acquire the right to the necessary land by purchase or appraisement as before. Some years after, the commissioners made a parol agreement with the two tenants in common of a farm at the outlet of the drowned lands, by which the 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 the commissioners should thereafter assess upon the farm from time to time should be deducted therefrom, and the balance of damages paid by the commissioners. The latter entered upon the land and continued in possession for more than twenty years, but omitted to have the damages ascertained, though requested to do so. The plaintiff subsequently purchased the farm from the tenants in com- mon, and the commissioners having advertised it for sale for non-payment of taxes, the plaintiff filed his bill for an injunction, on the ground that the agree- ment was one which, had it been under seal, would have been a covenant running with the land, and as it was one which a court of equity would enforce, it must be regarded as having passed to the plaintiff under his deed ; and the court held that the plaintiff was entitled to an injunction, and that the true construction of the agreement was that the commissioners were to collect no taxes till the dam- ages were ascertained. " It was said upon the argument," said Brown, J., who delivered the opinion, " that the damages were personal and not real property, and therefore did not pass to the plaintiff by force of the deeds of conveyance. This argument would have had more force if the damages had been ascertained and declared before the execution of the deeds. There would then have been a fixed and definite sum due and payable from the commissioners to the owner, which might have been recovered in an action at law. The severance of the damages for the lands, in respect to which they accrued, would have been, in a measure, complete, and they would then have assumed the aspect and the attri- butes of personal estate. The entry upon the lands and the opening of the canal were not tortious acts creating a right of action, which died with the person, or survived to the representative ; but the entry was under an agreement and license to purchase, pay for, and acquire the title at a future period. Until the title was thus acquired, there was no such severance of the damages from the lands as con- verted them into personal estate, and they consequently passed with the deeds as part and parcel of the thing granted. . . . The agreement to exempt the lands from taxation to the extent of the amount of the damages, would, had the con- tract been under seal, be a covenant running with the land ; Vyvyan v. Arthur, 1 Barn. & Cress. 410 ; Vernon v. Smith, 6 Barn. & Aid. 1 ; Bally v. Wells, 3 Wilson, 25. And if the agreement be such as courts of equity will enforce, for that purpose and to that extent it must be regarded as having passed to the plain- tiff under the deed." ' Peters v. Grubb, 9 Harris (Pa.), 465. 190 THE COVENANT FOR QUIET ENJOYMENT. canal commissioners would raise the height of his dam, he would allow them a sufficient supply of water to feed the canal. The com- missioners, without taking any notice of tliis offer, erected a gate at the head of the race leading to the mill and furnace, and in spite of objection from the owner diverted the water therefrom whenever the low state of water in the canal rendered this necessary. The premises were afterwards leased, with a covenant "to warrant and defend the same to the lessees against the claims, interruption or molestation of any person whomsoever, so that the lessee should suffer no loss from any defect of title of the lessor to the premises." Soon after the execution of the lease, the agents of the Common- wealth notified the lessees that unless there was a rise of water before a certain day, they would be obliged to shut off the water from the furnace, and shortly after the gate was closed entirely. It was contended that the lessors were not liable on the covenants in tlie lease, ■ — that the case was less strong than that of Dobbins v. Brown, as the vendor there had released his claim for damages, while in the present case tlie lessees enjoyed the premises in sub- ordination to the rights of the Commonwealth ; ^ but tlie Supreme ' The charge of the court below, as to this, was : " The covenant of course extended only to lawful interruptions. No man is presumed to covenant against lawless ones, as the tenant can protect himself against them by actions of tres- pass, which the landlord could not sustain, he having parted with the possession. Nor would it be presumed that the landlord covenanted against auy original entry by the State to make roads, take and use the water, or exercise other acts of prerogative. No man is presumed to contract against bare possibilities with- out express words. Besides, for such injuries the tenant has his redress by claiming damages, which it is to be presumed the public will accord and pay. If, then, the State had entered for the first time and drawn off the water after the lease was executed, we should hold that it did not come within the covenant for quiet enjoyment, although the same is expressed in strong and broad terms. The tenant would have to seek his redress by asking for damages under the internal improvement laws. But in the present case the entry had been made some thir- teen or fourteen years before the dam was built, water drawn off when required for the canal, and the damage, if any, was done to John Gamber, the then owner, and paid or presumed to be settled with him. The right to exclude him entirely from the use of the water had been claimed by the State agents but never exer- cised, had been a subject of dispute between him and them, and also with the plaintiffs after their purchase. Shippen in taking his lease would very naturally apprehend difficulty about the use of the water, and as the defendants denied the right of the State to stop their works, it is no more than probable that they would guarantee against it. Have they done so ? We consider the words quite broad enough to cover the case, and applicable to it, more especially as there does THE COVENANT FOR QUIET ENJOYMENT. 191 Court held that the covenant must be held to embrace all existing antagonistical claims, whether on the part of the Commonwealth or of private persons, — that if the original entry of the State under the right of eminent domain had been subsequent to the date of the lease, the case of Dobbins v. Brown might have ruled the case in their favor, but that the works of tlie Commonwealth having been erected for some years prior to the date of the lease, and the right to use the water when necessary, claimed, and to some extent exercised, under objection by the owner, who claimed that his was- the better right to the exclusive use of the water, it could not be doubted that the covenant for quiet enjoyment was intended by the parties to protect against this claim on the part of the Common- wealth. i In reviewing the numerous cases upon the subject of what con- stitutes 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 can- not be regulated in all or even in most cases, by the artificial and technical rules which properly govern the law of real estate. Ref- erence may be had, therefore, not only to the intention of the par- ties as expressed in the conveyance which contains the covenants, 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 in- serted with exactness and fulness, the inference would be strong that the omission of a covenant for seisin 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 cove- nant strictly confers ; and the more exactly and particularly the covenants were expressed, the more rigid would be their construe- not appear to have been any other disputed right, no defect or apprehended de- fect in the title, or pretence of right in any other person to interrupt the tenant in the enjoyment of his lease. ... If you believe these parties had in view the claim of the State to interrupt the occupant in the use of the water, and made the contract with a view to that, we instruct you that the covenant for quiet en- joyment in the lease is broad enough to protect the tenant or his assignees, and render the lessors responsible for the damages sustained by reason of such inter- ruption." 1 " If there was error,'' said the court, " in submitting to the jury the question of the intent of the parties, the defendants have no just cause of complaint, as, in the opinion of this court, the intent might have been inferred as matter of law." 192 THE COVENANT FOR QUIET ENJOYMENT. tion. So far, however, from such being the practice of conveyan- cing in this country, it is rarely, if ever, the case that tlie cove- nants for title which are inserted, are expressed otherwise than very briefly. So, in some of the States, long-settled usage has caused the omission of all the covenants for title, except that of warranty, which, by common practice at least, is looked upon as containing all that is necessary to assure the title to the pur- chaser.i Where such has become the settled practice of a State, it is sug- gested, with great deference, that technical rules, based upon a dif- ferent custom of conveyancing as respects these covenants, lose to some extent their application, and to say that " the purchaser should have protected himself by other covenants," is to apply a hard rule in States where those other covenants are never em- ployed.^ As respects the pleadings in an action for a breach of the cove- nant for quiet enjoyment, it is not sufficient that the plaintiff should merely negative the words of the covenant," and the case of Hayes v. Bickerstaff, 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 defendant was not a mere trespasser, and the declaration would be bad on demurrer.^ It is also well settled that the declaration must state ' These remarks were quoted and approved by Stockton, J., in deliTering the opinion of the court in the case of Funk v. Creswell, 6 Clarke (Iowa), 93, and see infra, Ch. VIII. ^ A branch of this subject of eviction is that of the purchaser's right to detain the unpaid purchase-money by reason of a defect of title. Such a right depends (except in Pennsylvania) upon the defect in question coming within the cove- nants for title he has received, and is, according to the weight of modern authority, sanctioned to the extent to which the purchaser would be, at that time, enti- tled to damages upon the covenants. This subject is attempted to be fully con- sidered in a subsequent part of this work (see Ch. XIV.), where it will be seen that although there are many cases which profess to lay down a strict rule, and to deny this right "unless there has been fraud, or an eviction," yet there are few, if any, which deny to the purchaser the right to set off the amount bona fide, reasonably and necessarily paid by him to buy in the paramount title, even where the only covenants are those for quiet enjoyment or of warranty. •■" Blanchard v. Hoxie, 34 Maine, 378 ; Wait v. Maxwell, 4 Pick. 87 ; and see passim all the eases referred to infra, under this head. * Vaughan, 118 ; see supra, p. 134. ' Claiming title is not sufficient; Norman v. Poster, 1 Modern, 101 ; " Hab- ens titulum would have done your business," said Hale, C. J. THE COVENANT FOR QUIET ENJOYMENT. 193 the paramount title to have existed before and at the time of the execution of the conveyance,^ otherwise non constat that the inter- ruption was not under title derived from the plaintiff himself.^ Of course, however, these rules do not apply to au interruption made by the covenantor himself or those claiming under him,^ nor to a case in which the covenant is against the acts of a particular named person. But having averred that the interruption was made under lawful title existing before and at the time of the conveyance to the cove- nantee, it is not necessary that that title should be set forth partic- ularly,* for although it is in general necessary for the plaintiff to examine the title under which the interruption was made, so far as to satisfy himself that it was not tortious, and that his remedy must be not against the party making it, but against the cove- nantor, 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.^ ' Frost V. Earnest, 4 Wharton (Pa.), 86; Naglee v. IngersoU, 7 Barr (Pa.), 205, 206. ' Kirby v. Hansaker, Cro. Jae. 315 ; Skinner v. Kilbys, 1 Shower, 70 ; Jor- dan V. Twells, Cas. temp. Hardw. 172; Wotton v. Hele, 2 Saunders, 181, and see the authorities collected in the note ; Fraser v. Skey, 2 Chitty, 647 ; Kelly v. The Dutch Church, 2 Hill (N. Y.), 105 ; Naglee v. Ingersoll, 7 Barr (Pa.), 205 ; Knapp V. Marlboro, 34 Verm. 235. ' Supra, p. 135, &c. * Proctor V. Newton, 2 Levinz, 37 ; Buckley v. Williams, 3 id. 325 ; Jordan v. Twells, Cas. temp. Hardw. 161. It was earnestly contended in Foster v. Pier- son, 4 Term, 617, and Hodgson v. The East India Company, 8 id. 278, that the plaintiff should have set forth the adverse title under which he was expelled ; but Kenyon, C. J., said, io the latter of these cases, " I do not know how it was possible for him to set forth the particulars of the titles of the persons who en- tered upon him ; such knowledge could only be acquired by an inspection of title- deeds to which he could have no access." See also note to Browning v. Wright, 2 Bos. & Pull. 14. * A form of a breach of the covenant for quiet enjoyment is thus given in 2 Greenl. Evidence, § 243. " After reciting the execution of the deed and the covenant in its very words, ' Now the said plaintiff in fact says, that he has not been permitted so to possess and enjoy the said premises ; but on the contrary he avers, that, after the making of the said deed, to wit, on the day of , one E. F., who at the time of making said deed had, and ever since, until the mo- lestation of the plaintiff hereinafter mentioned, continued to have lawful right and title to said premises, did enter into the same, and did thence eject, expel, 13 194 THE COVENANT FOE QUIET ENJOYMENT. On the trial, the burden of the proof is, as a general rule, obvi- ously thrown directly upon the plaintifif, in the first instance. It may, however, be shifted. As where, in a recent case,^ the breach having been said to be the inability of the plaintiff to obtain posses- sion by reason of an outstanding paramount title in a third person, the defendant pleaded that such paramount title was not in such third person but in himself, and had been effectually conveyed by his deed to the plaintiff, and it was held that the defendant, by his plea, assumed the burden of proof. and remove the plaintiff, and hold him out of the possession of the same, con- trary to the form and effect of the covenant aforesaid, etc' " This form is concise in the extreme. One more full and precise will he found in 2 Chitty's Pleading, .545, 546, containing also an averment of costs incurred in defending an ejectment, and also of expenses in improvements (see as to the lat- ter, Lewis V. Campbell, 3 J. B. Moore, 35, and infra, Ch. IX.) Another still more full, in which the breach assigned is an interruption by persons claiming common of pasture, will be found in 5 Wentworth's Pleading, 66, 60, and another in 6 id. 63, where, on a covenant for quiet enjoyment and against incumbrances, the breach assigned was that the defendant suffered the ground rent to fall in arrear, per quod the plaintiff was obliged to pay it to avoid distress. A good form will also be found in Lewis v. Campbell, 3 J. B. Moore, 35 ; s. c. 8 Taun- ton, 715. See also Dexter v. Manley, 4 Gushing (Mass.), 14 ; Evans v. Vaughan, 4 Barn. & Cress. 261, and the cases to which reference has been made on p. 129, &c. Some old forms may also be found in 2 Ventris, 60 ; Kobinson's Entries, 171 ; Winch's Entries, 112-118 ; Hobart, 34. » Owen V. Thomas, 33 Illinois, 320. THE COVENANT FOR FURTHER ASSURANCE. 195 CHAPTER Vn. It has been said by a learned writer, " This covenant is deemed of great importance, since it relates both to the title of the vendor and to the instrument of conveyance to the vendee, and operates as well to secure the performance of all acts necessary for supply- ing any defect in the former, as to remove all objections to the sufficiency and security of the latter." ^ It is, however, perhaps less extensively used in the United States than any of the other covenants for title, which would seem to be owing rather to custom, and tlie inartificial character of early conveyances, than to any want of usefulness in the covenant itself, or difficulty as to its application. For the importance of this covenant to the purchaser can hardly be overrated. The remedy, indeed, by an action at law for dam- ages is one seldom sought, and the reported cases are very few. But whatever may be the doubt of a purchaser's right to the specific enforcement by a court of equity of the other covenants for title, there is little or none with respect to that for further assurance.^ A reference to the form of the covenant shows that, in effect, it is an undertaking on the part of the seller to do such father acts for the purpose of perfecting the purchaser's title as the lat- ter may reasonably require ; and the usual mode in England of thus requiring it, is for the purchaser to submit to his grantor a draft of the intended assurance, with the opinion of coun- sel as to its necessity and propriety ; * and the breach of the ' For the forms of this covenant, see Ch. II. p. 25, 28. '' Piatt on Covenants. The latter part of this sentence must not receive too broad an application ; see infra. » See infra, Ch. XV. * Some old authorities held that if the covenant be to make such assurance as the purchaser's counsel should devise, the assurance must not be devised by the 196 THE COVENANT FOR FURTHER ASSURANCE. covenant does not occur until such a request is made and re- fused. ^ What, then, are such further acts as maybe reasonably required of a grantor ? First, the acts must be necessary. If unnecessary, that is, an act which, if done, would be useless, it is not such an act as comes within the scope of the covenant. Thus, where, in a case in the purchaser himself, though he be learned in the law (Eosewel's case, 5 Hep. 19 6; Bennett's case, Cro. Eliz. 9 ; Baker v. Bulstrode, 2 Levinz, 95) ; but by the form of the covenant, as usually expressed in modern times, the assurance may- be either devised by the purchaser or his counsel. The resolution in Manser's case, according to Coke's report (2 Rep. 3 a), that " if the vendor is literate he is bound by law to seal and deliver the assurance presently upon request," and without time to consult with his counsel, seems by the report in Moore, 182, pi. 326, to be rather broadly laid down ; and in Bennett's case, Cro. Eliz. 9, it is said that " B is not only to show him the assurance that he is to make, but is to permit him to read it, and go to his own counsel to consider it." See Wotton v. Cooke, 3 Dyer, 337 6 ; Symmes v. Smith, W. Jones, 314 ; s. c. Cro. Car. 299 ; Andrews v. Eddon, 1 Anderson, 122 ; Heron v. Treyne, 2 Ld. Raymond, 750 ; Miller v. Parsons, 9 Johns. (N". Y.), 336; and in England it seems usual to tender the vendor's costs along with the assurance ; Dart on Vendors, 721. ' Thus in Fields v. Squires, Deady (C. C. U. S. Oregon), 388, the learned judge (who was also the reporter) said : " It is claimed that there is no breach of the covenant for further assurance, because it does not appear that the com- plainant has devised or demanded any particular assurance or conveyance. Where the covenant is general and does not specify the particular conveyance to be made, but only such as may prove necessary or be advised by counsel, the party claiming under it should demand such a conveyance as he conceives him- self entitled to, or counsel shall devise, before he can allege a breach and main- tain an action for damages. In such case, until the party bound to make further assurance is advised as to what is demanded or needed, he cannot be said to be in default for not performing it. This is the rule in actions at law for damages, which fan only be maintained when an affirmative breach of the covenant is shown ; " and the distinction was then pointed out between the remedy at law and in equity. "But, I apprehend, it will be found that the rule has little application to a suit in equity for the specific performance of a covenant. Such suit is not maintained upon a technical breach of the contract, but upon its con- tinuing obligation, binding the party to perform it specifically. In the absence of any special provision in the covenant to the contrary, the suit itself is a sufficient demand for performance. This covenant is special, and requires the performance of a particular thing, — the conveyance of the property, if obtained from the United States. A neglect to perform such a covenant, for the purposes of this suit, is equivalent to a refusal to do so. In this respect the covenant does not differ from an ordinary agreement to convey real property ; Rawle on Covenants, 109." THE COVENANT FOR FURTHER ASSURANCE. 197 exchequer, the breach assigned was that the defendants had not directed trustees to do a certain act, the court held that the direc- tion not being either necessary to be made on tlie part of the defendant, or obligatory on the trustees, if made, was not an act within tlie meaning of the covenant.^ Secondly, the act must be practicable. Thus, where in debt on a bond for the performance of a covenant to make such reasonable assurances as the purchaser sliould 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.^ And the request for further assurance must not only be reason- able in itself, but be made within reasonable time. Thus in an old case where husband and wife, seised in riglit of the latter, covenanted that they had good right to convey the lands and to make further assurance within seven years, and the wife died witliin that time and her right descended to an infant, so as to render performance impossible, the court held that it was the plaintiff's own fault ; that the assurance should have been de- manded in the lifetime of the wife, and that her decease, which prevented the performance of the covenant, was the act of God.^ Apart from this, it has been said in England that a purchaser ' Warn v. Bickford, 7 Price, 550 ; 9 id. 48. So, where in a case in Maryland, a bill was filed to compel a vendor to execute, by virtue of his covenant for further assurance, another deed to be prepared under the direction of the court, merely alleging that the deed already executed did not convey a clear title to the land in question with all its advantages as they might be enjoyed under the original patent, the bill was dismissed with costs, as neither in it, nor at the hearing, had the complainant shown any specific defect or ambiguity in the deed he had already accepted; G-wynn v. Thomas, 2 Gill & Johns. (Md.) 420. ^ Pet and Callys' case, 1 Leonard, 304. So in an anonymous case, Moore, 124, " le verity fuit que al temps del request, la feme fuit egrotant sic ut lahorare non potuit. Et tout le court sembleront que malady excusera cest obligation, car nefuit reasonable request en temps quant la feme nefuit able de traveller, et issint si la feme soil grossement enseint sic ut ne poit traveller.''' But, of course, this was temporary, and the request might have been renewed after recovery. ■> Nash V. Ashton, T. Jones, 195; Skinner, 42. "But Poliexfen, of the same side with Williams, showed another breach, viz., that the wife was under age at the time of the covenant, as appears by the verdict; she then had no power to convey the estate according to the covenant. And this was held a manifest breach, and therefore judgment given for the plaintiiF, nisi.^'' 198 THE COVENANT FOE FURTHER ASSURANCE. may, as of course, require a fine to be levied,^ or a judgment or other incumbrance to be removed.^ It is conceived, however, that this proposition must be taken with some qualification, depending either, first, on the scope of the other covenants in the deed, or, secondly, on tlie nature of the estate conveyed. For it has been seen that all the other covenants for title are either general, that is, extending to all paramount titles and incumbrances — or limited, extending only to defects of title or incumbrances created by the vendor. But the covenant for further assurance has in general the same form of expression, whether the other covenants which accompany it are general or limited ; — it is an undertaking that the vendor will execute such further assurance as may be deemed necessary by the purchaser. If the other covenants in the deed are general, — if their breach will be caused by reason of an incumbrance not created by the vendor, — then it is conceived that the proposition is correct, and that the purchaser may, instead of suing at law upon his other covenants, invoke the aid of equity to remove the incumbrance. But if the other covenants are limited, and the purchaser would therefore be without remedy at law upon them by reason of the incumbrance not having been created by the vendor, it is obvious that the vendor cannot be compelled to remove an incumbrance which he had not covenanted against. So, too, the purchaser's right may depend on the nature of the estate conveyed. There is a class of cases which decide that although the covenants for title may be general, yet when the con- veyance is but of a limited estate or interest, the covenants will ' Middlemore v. Goodale, Cro. Car. 503 ; Boulney v. Curteys, Cro. Jac. 251 ; Innes v. Jackson, 16 Vesey, 366. It should, however, be here observed that, according to the weight of modern 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 or in her own estate, nor consequently will it decree specific performance of a covenant for further assurance, where the wife has not properly joined in the deed ; see 2 Story's Eq. Jur. §§ 731 to 736. ^ Sugden on Vendors (13th ed.), 501; Piatt on Covenants, 344; citing Heath, J., in King v. Jones, 5 Taunton, 427. In Colby v. Osgood, 29 Barbour, S. C. (N. Y.) 339, this proposition was properly limited to the case of an incumbrance created by the grantor, which therefore, of course, came within bis covenants, and this is all that was meant by the passage in the text. THE COVENANT FOR FURTHER ASSURANCE. 199 themselves be restrained and limited to the estate conveyed.^ Under such circumstances, it would be inequitable that the pur- chaser should, by virtue of a covenant for further assurance, require the conveyance to himself of any greater estate.^ ' See infra, Ch. XII. ^ And this, on examination, will be found to be the true meaning of the authorities. In the old case of Taylor v. Dabar, 1 Chano. Cas. 274 (reported also in the same words in 2 id. 212), " a purchaser of the crown lands in the time of the late wars, sells part to the plaintiff, and covenants to make further assurance. He, on the king's restitution, for £300, had a lease for years made to him under the king's title. The decree was, he should assign his term in the part he sold." Here the original contract obviously appears to have been that any confirmation which might thereafter be made of this then doubtful title should enure to the benefit of the purchaser. So in Smith v. Baker (1 Younge & Collyer's Ch. 222), where one believing that he had the fee-simple, subject to his mother's life-estate, conveyed it to trustees for the benefit of creditors, covenanting for title and for further assurance, and it turned out that the mother had the fee-simple, which on her death descended to him, it was clearly held that he must be compelled to convey the after-acquired estate. "It may be,'' said Vice-Chancellor Bruce, " that he did not know what his interest was at the time, but upon the mere circumstances which appear here, he cannot be allowed to deprive his creditors of an estate which he disposed to them for valuable con- sideration. It is not suflioient for him to say that he had no interest then ; — that he acquired subsequently the estate which he said he had, and which he may or may not have supposed himself to have had at the time of the execution of the deed. . . . I see enough to satisfy me that there was a contract for value, by deed, for the sale of this specific estate to the creditors, and I cannot relieve the party from the effect of that contract." Sugden has said, in language which, unless carefully considered, might mis- lead, " If the title prove bad, and the defect can be supplied by the vendor, the purchaser may file a bill in equity for a specific performance of the covenant for further assurance. And a vendor who has sold a bad title will, under such a covenant, be compelled to convey any title which he may have acquired since the conveyance, although he actually purchased such title for a valuable considera- tion ; " 2 Sugden on Vendors, p. 541 (10th ed.) This proposition is undoubtedly correct, if the covenant for further assurance is the only one in the deed, or if the other covenants are unlimited, or general. But if the covenant for further assurance is either expressly or by implication limited or restrained by other covenants or by the grant itself (Davies v. Tollemache, 2 Jurist (N. S.), 1181), then the remark would seem to have rather too broad an application. In support of it, the learned author cites Taylor v. Dabar, which, as we have seen, was clearly a case in which the conveyance of the after-acquired title was properly compellable, and refers to Seabourn v. Powell, 2 Vernon, 11, in which there was no covenant for further assurance at all. The case was, that Austin and his wife being assignees of a term of years, mortgaged it. Austin became insolvent and absconded, and Haynes, who had the real title, 200 THE COVENANT FOE FUETHER ASSURANCE. It is obvious, therefore, that no more is meant than that where the covenants for title are not limited or restrained either by the acts of the vendor or by the particular estate conveyed, the pur- chaser has a right, under the covenant for further assurance, to require the conveyance of a paramount title or the removal of an incumbrance ; but where the other covenants are limited to the acts of the vendor, or restrained by any particular estate, the pur- chaser will have no right, under this covenant, to require the con- veyance of any other estate,^ or the removal of an incumbrance not created by the vendor.^ in compassion for Austin's wife, made a lease in trust for her, whereupon the plaintiffs, who were sureties on the bond which accompanied the mortgage, filed a bill, alleging " that the mortgagee had a plain equity to have the benefit of that title which was but a graft into that stoclj from which he derived, and that the defendant had, since the taldng of the estate (and so it appeared on proof), paid the interest to the mortgagee, and that therefore the plaintiffs, being but sureties in the bond, had an equity to have the benefit of the mortgage, and of that new-acquired title, to save them harmless against the bond, or else the trustees ought to be decreed to make a new moi-tgage to the mortgagee ; " and the Master of the Rolls, deeming the estate made by Haynes to be a graft into the old stock, decreed the trustees to make a new mortgage to the mortgagee. For a full consideration of the right of a purchaser to the conveyance of an after-acquired estate, see infra, Ch. XI. ' Thus in Daviesu. ToUemache, 2 Jurist (N.S.), 1181, a tenantiu tail, having mortgaged all the property to which he was entitled, "in possession, rever- sion, remainder, or expectancy, or otherwise howsoever,'' with a covenant for further assurance, the mortgagee filed a bill to compel him to execute a dis- entailing deed, but it was held that such an act was not within the operation of the covenant. " The utmost extent to which the court has gone with reference to covenants for further assurance," said Vice-Chancellor Stuart, " has been to e.xtend their operation to that very estate and interest which are conveyed by the deed." See this case particularly noticed, infra, Ch. XL and XV. ^ This question was in part presented in the late case in Missouri of Ai'm- strong V. Darby, 26 Mo. 517, where the plaintiff sold certain lands by a deed containing the words " grant, bargain, and sell," which in that State implies, by force of a local statute, covenants for seisin, against incumbrances done or suffered by the grantor, and for further assurance (see infra, Ch. XII.). In a suit on the last of these covenants, the breach assigned was that a mortgage upon the premises, which had been created hy the defendant's grantor, had been fore- closed, that the defendant was thereupon requested to pay off and discharge the incumbrance, which he refused to do, and that the plaintiff had been obliged to pay it off in order to protect his title and possession. To this the defendant demurred, and the demurrer was sustaine^d, on the ground that the covenant must be taken to embrace such incumbrances only as were created by the grantor. THE COVENANT FOR FURTHER ASSURANCE. 201 It seems that, in England, where a purchaser having taken his conveyance without the transfer of tlie custody of the title-deeds, afterwards parts with liis own deed to a subsequent purchaser of part of the property, he may, under the covenant for further as- surance, require his original vendor who retains the title-deeds, to execute a duplicate of the conveyance to himself for his security, as he might otherwise be without any deed whatever ; ^ but whether a purchaser who lias neglected to take with his conveyance a cove- nant from his vendor to produce the title-deeds, can afterwards compel the latter to enter into such a covenant, by virtue of the common covenant for further assurance, seems at least doubtful. He could compel the production of the title-deeds themselves, but not, it would seem, of any papers not strictly within that category.^ Of course, on this side of the Atlantic, the registry acts leave no scope for such questions. ' Napper v. AUington, 1 Eq. Cas. Abr. 166, pi. 4; Dart on Vendors (4th ed.), 7-21. ^ Where in Fain v. Ayers, 2 Sim. & Stuart, 633, a bill stated that the plain- tiff had resold the property which he had purchased with a covenant for further assurance, and prayed in the alternative a new covenant to produce title-deeds, or the actual production of the deeds themselves, a demurrer to the bill for want of equity was overruled. Vice-Chancellor Leach said, "I do not think that there has been a judicial decision upon the particular point whether, under a cove- nant for further assurance in a conveyance, a new deed of covenant to produce title-deeds may be required. But whatever doubt there may be upon that point, this bill, stating that the plaintiff has resold the property, prays alternately either a new deed of covenant to produce, or the actual production of the title-deeds, to enable the plaintiff to show a marketable title upon his resale. The defend- ant's title-deeds being the root of the plaintiff's title, and in that sense a sort of common property (see Barclay v. Raine, 1 Sim. & Stuart, 449), I strongly incline to think that the plaintiff has an equity to that extent ; and I am informed that the Lord Chancellor has expressed an opinion to that effect." But in Hal- lett V. Middleton, 1 Russell, 249, a case which occurred about the same time, where one had conveyed to trustees to sell, if the debts of a partnership in which he had been engaged should exceed a certain sum, and the trustees, reciting that the debts did exceed that amount, conveyed to a purchaser by a deed in which the heir of this partner joined with a covenant for further assurance, and the purchaser filed a bill praying either for the production of the accounts to show that the debts did exceed that amount, or for a covenant for their production, the bill was dismissed by Gilford, M. R., who said, " it was one of the most extraor- dinary attempts at relief that a court of equity has witnessed. The covenant creates no obligations in respect of which the documents should either be deliv- ered to him or deposited in a place of security, inasmuch as they are not part of his title." The precise point stated in the text was not, it will be observed, settled in either of these cases. 202 THE COVENANT FOR FURTHER ASSURANCE. A distinction is to be observed between mere agreements to con- vey by reasonable assurance, which are held to carry with them a right to covenants for the title in the deed of conveyance/ and a right to the insertion of those covenants in the deed of further assurance itself " Where the agreement," says Sugden, " is to convey an estate upon sale, it admits of no doubt that the pur- chaser, both at law and in equity, would have a right to a convey- ance with usual covenants, although nothing was expressed about covenants in the agreement, — that would be supplied. But where the conveyance is really a further assurance, the purchaser must be supposed to liave already obtained all such covenants for title as he was entitled to, and therefore could not require any new ones from the seller in tlie further assurance." ^ And however tliis may be, it is clear tliat the vendor is not, in the absence of an express agreement to the contrary, bound to covenant further than against his own acts ; but it would seem that out of abundant caution a stipulation to this effect is sometimes inserted by way of qualifica- tion to the covenant.^ It would seem that in suing upon this covenant at law, the course of pleading is to assign the breach in the words of the covenant.* Some particularity is, however, to be observed as to the form of the declaration. Thus where the defendant cove- nanted upon request by the testator to make further assurance to him, his heirs and assigns, and the breach assigned was that the plaintiff, as executrix, requested the execution of a release between the defendant and the plaintiff, and one S. A. for the further assur- ance of the premises, on special demurrer the breach was consid- ered badly assigned, as it was not shown what right the plaintiff ' See infra, Ch. XIII. ' Sugden on Vendors, 502. It seems at one time to have been thought that upon an agreement to convey by reasonable assurance, the vendor was not bound to insert any covenants, "although they be ordinary and reasonable; yet the agreement not being to make it with reasonable covenants, but only reasonable assurance, he is not bound to seal it, for it is not any part of the assurance, and the assurance may be without any covenants ; " Coles v. Kinder, Cro. Jac. 571 ; Sheppai-d's Touch. 168 ; Wye and Throgmorton's case, 2 Leonard, 130 ; Pudsey V. Newsani, Yelverton, 44; Lassels v. Catterton, 1 Modern, 67 ; but such is not the law at the present day. 3 See supra, Ch. II. p. 30. " Per Biirrough, J., in Blioke v. Dymoke, 2 Bingham, 105. A precedent for a declaration on this covenant will be found in 2 Chitty's Pleading, 543 ; see also 1 Lutwyche, 284 ; King v. Jones, 5 Taunton, 418. THE COVENANT FOR FURTHER ASSURANCE. 203 had, or to whose use the release was to enure, or why S. A. was to be a party to it.^ So in a case in New York, where upon a cove- nant that the defendant would, upon the reasonable request of the plaintiff, do and execute such further and other lawful assurances for the better and more effectually vesting and confirming the premises as by the plaintiff or his counsel should be reasonably devised, advised, or required, the declaration averred that the defendant's wife would, on her husband's death, have a right of dower in the premises, and that the defendant had been requested by the plaintiff to execute a reasonable conveyance and assurance of the said right of dower, according to the true intent and mean- ing of the covenant. On demurrer, the court held the breach badly assigned ; that the plaintiff having devised the assurance, was bound to give notice of it to the defendant and allow him a reasonable time to consider of it. As no particular assurance was specified in the covenant and none specified by the plaintiff, the defendant could not know what assurance was required.^ ' King V. Jones, supra. ° Miller 11. Parsons, 9 Jobns. 336. See also Warn v. Bickford, 7 Price, 560; s. c. 9 Price, 43; and Gwynn !;. Thomas, 2 Gill & Johns. (Md.) 420, cited siipra, p. 197. In Blicke v. Dymoke, 2 Bingham, 10.5, one purchased a house which was the subject of a tenancy for life with remainder to first and other sons in tail, and the tenant for life covenanted that the first son who should attain the age of twenty-one years should, at the request of the purchaser, well and eifect- ually convey and assure the premises by such common recovery, fine or fines, and other assurance as counsel should advise. In an action on this covenant, the declaration averred the seisin and death of the covenantee, and the descent on and seisin of the plaintiff as his heir, the attainment of the majority of the son, the request of the plaintiff that a common recovery should be suffered, and the neglect and refusal of the defendant so to do. On demurrer, it was objected that there should have been an averment that the defendant had notice of the title having devolved upon the plaintiff, and also that it should "appear that the suffering of the recovery was advised by counsel, of which the defendant had notice. But the Court of Common Pleas held (upon the authority of Reynolds V. Davies, 1 Bos. & Pull. 625 ; Skip «. Hook, Comyns, 625 ; Bristow and Bris- towe's case, Godbolt, 161; Hingen w. Payn, Cro. Jac. 475; Alfrey u. Blacka- more, 3 Bulst. 326, &c.), that the first averment was unnecessary; that the plaintiff need only show all that might bring him within the words of the cove- nant, and that any grounds of exemption must be shown by the covenantor. " I confess," said Best, C. J., " that, unaided by the light of former ages, I should have thought a perfect stranger to the defendant ought to have given him notice that he was become possessed of such an interest in the property as would author- ize him to call upon the defendant for the performance of his covenant ; but by a series of cases it has been decided that it is not necessary to show any such 204 THE COVENANT FOR PUETHER ASSURANCE. In subsequent chapters will be considered the measure of damages for a breach of this covenant ^ — its capacity for running with the land ^ — its operation by way of estoppel or rebutter ^ — and the jurisdiction in equity for its specific performance.* notice; and in two of the cases, the reason assigned is this: that giving notice is no part of the provision ; by which I understand that it is only necessary for the plaintiff to show all that brings him within the covenant ; any ground of exemption must be shown by the covenant." As to the second ol)jection, it was held that it was admitted by the deed that a common recovery was necessary at all events, and that the words, " as counsel should advise," only referred to assur- ances other than a recovery. " If a covenant be that a party shall execute such assurances as counsel shall advise, the plaintiff must show what has been advised; but that is not the covenant the breach of which is complained of here. In the first instance the defendant 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 recov- ery he was to cause to be suffered at all events, but not to do more unless counsel should advise : this is the strict meaning of the language of the covenant, and the words, ' as counsel shall advise,'' do not overrule the whole of the preceding sentence, but only the stipulation for assurances other than a recovery. There- fore, strictly collecting the meaning of the deed from the language of the deed itself, our judgment must be for the plaintiff." ' See infra, Ch. IX. ' Id. Ch. X. ' Id, Ch. XI. ■* Id. Ch. XV. THE COVENANT OF WARRANTY. 205 CHAPTER VIII. THE COVENANT OP WABBANTT.! Iv a preceding chapter has been sketched an outline of the feudal doctrine of warranty, from its introduction in England, at the time of the Conquest, down to its natural disappearance after the passage of the statute of Uses.^ So long, as has been already said, as livery of seisin was necessary to tlie transfer of land, so long did warranty, which was essentially a covenant real, accompany the deed of feoffment. But after the statute of Uses had led to the introduction of conveyances which, passing the estate by raising a use which the statute transferred into a possession, dis- pensed with livery of seisin, a warranty in its proper sense was inappropriate to such modes of assurance, and a covenant natu- rally took its place.^ But it was not a covenant of warranty — that is to say, a warranty in its old form, with words of covenant added thereto — such as is in use throughout the United States at the present day. The covenants which took the place of warranty, and which will be found scattered through the reports in the time of Elizabeth and of James the First,* were, in simple and concise form, the type of those which afterwards during the Protectorate were fashioned by Bridgman in his retirement, and introduced, with all their elaboration, on his return to practice after the restoration of Charles.^ But there is no evidence that the cove- ' For the form of this covenant see supra, Ch. II. " Supra, Ch. I. ' Supra, p. 16, &e. * As, for example, the covenant for seisin, Muscot v. Ballet, Cro. James, 369 ; Gray v. Briscoe, Noy, 142 ; of right to convey, Bradshaw's case, 9 Coke, 60 b ; against incumbrances, Briscoe v. King, Cro. James, 281 ; for further assurance, Boulney ». Curteys, Cro. James, 251 ; Briscoe v. King, id. 281 ; for quiet enjoyment in the conveyance of a freehold, Grenelefe v. W , Dyer, 42 a; and for quiet enjoyment in a lease. Woodruff «. Greenwood, Cro. Eliz. 517; Coras v. , id. 544; Noke v. Awder, id. 373, 436; Penning v. Plat, Cro. James, 383; Mountford and Catesby's case, Dyer, 328. * See supra, p. 17. 206 THE COVENANT OF WARRANTY. nant of warranty ever had a place in English conveyancing. Prom the report of the case of Williamson v. Codrington, de- cided by Lord Hardwicke iu 1750,^ and which arose under a deed executed in 1715, in the colony of Barbadoes,^ it would seem that such a covenant had never before been seen by either the counsel or the Chancellor, and while they discussed its nature, no authority was cited by way of illustration,^ aud the case seems ' 1 Vesey, 511. '' From tbis fact, it would seem that tlie introduction of the covenant of war- ranty in America was not confined to those colonies which afterwards formed the United Stales. ■* The case was thus. In the time of Charles I. the Codrington family removed with their property to Barbadoes, and in 1715, William Cod- rington (afterwards made a. baronet) executed there a settlement to trustees of a plantation and negroes in trust for two illegitimate sons, "with a clause that he does oblige himself, his heirs, executors and administrators, to warrant and forever defend the said plantation and negroes, &c." He was afterwards, in 1718, evicted, and having himself brought an ejectment, compromised it, and in consideration of a certain sum paid him, released all his title thereto. He then returned to England, where he died, and the cestuis que trust having filed a bill there for a satisfaction of the covenant out of the assets of his estate, it was urged for the executors and trustees under his will that they were strangers to the transaction, which was originally intended as a provision to take effect from his death ; " The deed contains, indeed, a general warranty, but there is no case where a court has considered a covenant by way of general warranty a personal covenant. This is the first instance of a gift of a general wiirranty in a voluntary deed, so that supposing it looked on as a covenant, yet being so extraordinary, how far should a court of equity give it aid ? . . . But this is a general warranty of the land, on which only a real remedy can be had, as if they were in possession, and a real action was brought against them to entitle the tenant to the prwcipe to vouch the warrantor or his heirs, or to bring warraiitia chaiice, to aifect the lands of warrantor or his heirs, unless it was a chattel estate recovered, for which there may be personal damages." But Lord Hardwicke held tbat the complainants were entitled to relief — that they might come into equity, as well as law, to have satisfaction for that debt on that specialty out of assets, and tben, referring to the contention that there was no instance in which satisfaction could be demanded against an estate unless for some covenant on which an action or suit might be maintained, the Chancellor went on to say, " Therefore, plaintiff resorts to the clause, which he insists on as a covenant Irom Sir William, intitling him to satisfaction for what was lost by eviction of tbe estate out of his assets, real and personal ; and if it amounts to a covenant, it will intitle thereto. I am of opinion it is not to be taken according to the objection for defendant as a strict warranty of the land ; which would be contradictory to the words of the clause. The word Warrant, when properly applied, has, to be sure, a particular sense ; but has, in general, a further sense ; therefore it is not necessary to understand warranty in a deed or cove- THE COVENANT OF WARRANTY. 207 to be the only one in the English reports in which this covenant occurs.' The principal emigration to America occurred about the time of the introduction into general use of the covenants for title in their present form, and in the earliest conveyances which remain of record in tlie colonies are to be found some or all of these covenants, more or less simply or elaborately set forth, together with, in general, a clause of warranty, sometimes with and some- times without the addition of words of covenant.^ Later, the words of covenant became more general, and at the present day their use is almost universal. Such is the American covenant of warranty. As to its extent and scope, different opinions have at times been formed, some nant barely as a warranty to the title to the realty ; but it shall be taken secundum suhjedam materiam. Here are chattels to be warranted in this deed ; some of which are certainly personal things, as cattle, horses, &c., though negroes in some instances are considered as annexed to the plantation. Then there are words binding his executors and administrators, which must be rejected, if to be construed as a mere real warranty of the land. This clause, therefore, is inconsistent with that narrow construction ; nor is it penned as a real warranty, which is, ' I do for myself and my heirs warrant such land ; ' here the words are, 'I do oblige,' &c., which amounts to the same as, 'I covenant,' &o., for many other words in a deed will amount to a covenant, besides the word cove- nant, as, ' I oblige, agree.' This, then, is barely a covenant for himself, heirs, executors and administrators, to warrant ; which word must be construed in a larger sense than warranty in a strict legal sense, as large as defend. That con- struction a court of law or equity must put on it. I agree the construction must be the same in both courts, and there is no difficulty, I think, in so construing it in a court of law." And it was decreed that the plaintiff should have satisfac- tion for the value of the plantation as it stood at time of the sale, and the negroes, &c., from the death of the testator, according to the value at the time of the eviction, and the cause was thereupon referred to a Master. See this case further referred to in Ch. XV. ' In Williams v. Burrell, 1 C B. 602, the clause in the lease was a warranty in the old form. In 1 Williams' Conveyancing, 279, published in 1790, there is a form of a deed of bargain and sale which contains a covenant of warranty. ^ Supra, p. 18. In an able note to Foote v. Burnet, 10 Ohio, 322, Mr. Wilcox, the reporter, says : " Our ancestors, who emigrated just about the time the modern covenants for title were coming into use in the mother country, and before the warranty had been entirely abandoned, seem to have brought with them both the modern covenants and the warranty, and while the former alone were soon found to be a competent assurance of title in England, both the war- ranty and the modern covenants continued to be used in our early conveyances and to have both come down together to our own time." 208 THE COVENANT OF -WARRANTY. giving to it much or all of the effect of a warranty at common law, and others considering it as merely a covenant for quiet enjoyment. As the latter is unquestionably the sounder view, and as tlie former has led to the introduction of doctrines incon- sistent with the present system of conveyancing, a brief notice of the subject may be permitted. It has been considered by eminent authority in America, that an action of covenant could have been brought upon a warranty whicli accompanied the transfer of a freehold. Such, however, was not the law, and no such case can be found in the books. Warranty in its origin savored so much of the realty that it could only be employed when the estate which was transferred was a freehold. Nor, when the 2^a7-amount estate was less than a free- hold, was warranty effective as a redress.^ But as time wore on, and leasehold estates grew into greater importance, the law under- went some change. In the reign of Henry the Sixth we find a case in which a warranty contained in a lease for years was allowed to be used as a personal covenant,^ and in that of James the First, another, in which on a warranty contained in a conveyance of a freehold, a recovery in an action of covenant was allowed when the adverse claim was under a term for years.^ ' That is to say, in neither case could a warrantia chartCB have been brought. ' Year Book, 32 Hen. VI. supra, p. 16. ■■ Pincombe v. Rudge, Hobart, 3 ; Nov, 131 ; Yelverton, 139 ; in Excheq. Chamb., 32 ; 1 RoUe, 25 ; see this case referred to, supra, p. 16. Nothing can be clearer than Judge Hare's notice of this case in the note to Spencer's case. "At common law warranty was essentially a covenant real. The right to enforce it, as well as the obligation which it imposed, descended on either side to the heirs of the original parties. The remedy was prosecuted by and against them ; compensation was awarded not in damages, but in kind, by a judgment for the recovery of other lands of equal value with those which had been lost, whether the eviction took place in the lifetime of the ancestor or after his death; Buicker v. Buicker, 11 Ohio (N. S.), 240, 245. No system could be more comprehensive or more logical ; its only fault was a logical subtlety and refinement, due to the character of the age which gave it birth. But however well it may have been suited to the purposes which it was designed to subserve, it necessarily proved inefficient, when applied to the modes of tenure and forms of conveyancing of a new and different nature. Thus no recovery could be had in a voucher to warranty or warrantia chartce, on a warranty attached to a term of years, which was regarded by the common law as a chose of action, rather than an estate, and had no recognized place in the complicated system of real actions ; and the difficulty was equally great where the eviction was for a term, although the estate warranted might be a fee. Hence there would have been an THE COVENANT OF WARRANTY. 209 These cases have at times been considered as deciding broadly that a personal action of covenant would at any time have lain upon a warranty,! ^nd, on the other hand, it has more than once entire failure of justice had not the courts consented to interpret the warranty as a covenant personal, when the circumstances were such that it could not take effect as a covenant real. A warranty could not be annexed to the grant of a chattel, real or personal, but if the grantor warranted the title the grantee might bring covenant; Coke, Lit. 3.59. The rule and the exception are exemplified by the case of Pincombe v. Rudge, Yelverton, 139, Hobart, 3, which has some- times been mistaken as an authority for the position that a warranty might always be construed as a personal oligation, whereas what it really shows is, that when a warranty failed as a covenant real, necessity would mould it into a covenant personal. The plaintiffs, who declared on a covenant in a deed grant- ing them an estate for their joint lives, by the words concessi and demisi, and also containing an express warranty, after setting forth the deed in full, without attempting to state its legal operation, went on to aver a breach by an eviction under a lease for years, executed prior to the grant. The defendant pleaded that an action of wajTaniia chai'tce for the same cause of action had been brought, and was still pending in another court, and also excepted to the sufficiency of the declaration, on the ground that an action of covenant would not lie upon a warranty. But it was held that, as the eviction was merely for a term of years, the warrantia chartce vi&s misconceived, and therefore no bar to another suit; and that even if covenant would not lie on a warranty it might be sustained on the obligation for the quiet enjoyment of the premises, implied in the word demisi. The case was subsequently brought before the Exchequer Chamber, where the decision of the King's Bench was affirmed on the -broader and more liberal principle that when a warranty would fail altogether unless a change be made in its attributes, it would be interpreted as a covenant personal, and judg- ment given for damages, instead of for an equal value in land. This case, there- fore, fully establishes, first, the existence of an essential distinction between a warranty in the proper sense of the term, and a covenant to warrant ; and, next, that a warranty may be construed as a covenant when there is no other mode of rendering it effectual ; " 1 Smith's Leading Cases (7th ed.), 206. Nearly two hundred and fifty years elapsed before a similar case was presented in England, but in Williams v. Burrell, 1 Common Bench, 401 (1845, noticed infra, Ch. IX.), nearly the same question arose, and the decision in Pincombe V. Rudge was distinctly approved and followed. ' Marston v. Hobbs, 2 Mass. 439 ; Gore v. Brazier, 3 id. 523 ; Townsend V. Morris, 6 Cowen (N. Y.), 127; Allison v. Allison, 1 Yerger (Tenn.), 24; Booker v. Bell, 3 Bibb (Ky.), 173 ; Rickets v. Dickens, 1 Murphey (N. C), 343 ; and in most of these cases an action of covenant upon a warranty in its old form was sustained. Such a course of decision can do no harm, and will "no doubt correspond with the intentions of the parties " (Townsend v. Morris, supra), but it must be considered as unsupported by the authority of the older common law. This was thus clearly shown by Judge Story's note to Pincombe V. Rudge, in the American edition of Hobart . " Ch. J. Parsons, in Gore v. Brazier, 3 Mass. 523, held that a personal action would have lain in England 14 210 THE COVENANT OP WARRANTY. been seriously urged, as it was in "Williamson v. Codrington, that upon a covenant of warranty, in its present form, nothing biit a writ of warrantia chartcs can be brought.^ In truth, save that the upon a covenant of warranty annexed to a fee, and where the ouster was of the freehold by title paramount. And he cited Waters v. The Dean of Norwich, 1 Brownlow, 21 ; s. c. 2 id. 158, &c. But there the plaintiff sued on a cove- nant 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 Hobart, 3 ; the freehold not being brought in question. It is true that Lord Coke, who was chief justice, in giving his opinion, said, among other things, ' that covenant in law extends to lawful evictions, and to estates in being, and not where an estate is determined. So, also, he supposed, to express real covenants, which extend to freehold or inheritance, as warrant and defend, upon which a man cannot have an action if he be not ousted by one which hath title.' This last sen- tence is that upon which C. J. 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 case of Pincombe v. Eudge (Hob. 3), there is no doubt that covenant would lie, if the ouster by title paramount was not of the freehold, but for a term of years only. For is it to be presumed that Lord Coke had any notion in his mind that if the ouster was in fee, covenant would lie on a warranty ? And the covenant in the case before the court was not a warranty, but a covenant to save harmless and acquit; in short, equivalent to a covenant for quiet enjoyment. Besides, the case in Brownlow was decided in 10 Jac. 1 ; and that of Pincombe v. Rudge was finally decided in the Exchequer Chamber by all the judges, in 11 Jac. 1. And therefore if there be any dis- crepancy between them, the principle established by all the judges in the last case is the true one. And it seems to me there is a necessary implication in this last case against the doctrine of C. J. Parsons. At all events, the authority he relies on does not support his dictum.''^ The remainder of the note to Pin- combe V. Rudge is by Judge Williams, the editor of this edition of Hobart, and with the exception of the note by Mr. Wilcox to Foote v. Burnet, 10 Ohio, 322, was, when the earlier editions of this treatise were published, the only instance in which the subject of covenants for title had been, on this side of the Atlantic, treated in a connected form. ' Stout «. Jackson, 2 Randolph (Va.), 148 (see three elaborate opinions in that case) ; Tabb v. Binford, 4 Leigh (Va.), 132; Chapman v. Holmes, 6 Hal- sted (N. J.), 23; see the remarks of Tilghman, C. J., in Jourdan v. Jourdan, 9 Serg. & Rawle (Pa.), 276. In Chapman v. Holmes both the counsel' and the court seem to have overlooked the distinction between a warranty and a covenant; the counsel, in an elaborate and otherwise able argument, insisting that because voucher and warrantia chartce were the ancient remedies on the former, they must still be so on the latter. In Townsend v. Morris, 6 Cowen, 123, there was more room for such an argument, for there was no covenant in h(Bc verba, but the form was as in the old charters, and the court, iu deciding the THE COVENANT OP WARRANTY. .211 old warranty and the present covenants were alike intended as a means of redress against loss of the estate, nothing could be more unlike than the two. The former was a part of the system of feudal tenure, and the remedy upon it by writ of warrantia chartce or voucher, though peculiar, was appropriate. The latter was a part of what some have called the modern system of law, and the remedy upon it by tlie personal action of covenant, equally appro- priate. Warranty originally partook of the simplicity of the com- mon law, and its effect, by way of rebutter of the heir, was simple and just, till the ingenuity of the times seized upon it for a partic- ular purpose, and fashioned it to meet an end — that of barring estates tail — for which it had never, of course, been intended, and hence arose complications which, to one imperfectly learned in the history of the subject, would seem to present great difficulties. ^ Such an effect was obviously inappropriate when applied to a mere personal covenant, and no case in England can be found in which to such a covenant was ever given the operation of warranty by way of rebutter.^ obvious point that the assignee of a vendee could sue upon a covenant of war- ranty, intimated that the tenant of the freehold always had his option to bring covenant, or resort to the real action. A passage in Bac. Ab. Covenant, C, that, " in the eviction of a freehold, no action of covenant will lie upon a war- ranty," was misquoted in Pitcher v. Livingston, 4 Johns. 11, and cited as an authority that a personal action would not lie upon " a covenant of warranty." ' In the preface to the tenth volume of his Reports, Coke thus brings to the notice of his reader "Edward Seymor's case, concerning warranties, a cunning kind of learning (I assure you), and very necessary for the purchaser, for it armeth him not only with a sword by voucher to get the victory of recompense by recovery in value, but with a shield to defend a man's freehold and inheritance by way of rebutter; which title of the law is, in my opinion, excellently curious, and curiously excellent. And yet, when you have read this case, you will con- cur with me that it was more weighty than difficult." * " There is a diversity," says Coke, " between a warranty that is a covenant real which bindeth the party to yield lands and tenements in recompense, and a covenant annexed to the land which is to yield but damages ; " Co. Litt. 384 &. In Jacock «. Gilliam, 3 Murphey (N. C), 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, C. J., " the law has made a clear distinction between a covenant real and a covenant personal; and to a warranty alone, in the original and proper sense of the term, has it imparted the effect of intercepting the descent to the heir, because he, and not the executor, is bound to warrant and secure the land to the covenantee (warrantee) and his heirs. The use and adoption of the form in which the ancient warranty is expressed would indicate the intention of the parties to 212 THE COVENANT OF WARRANTY. But between warranty and the modern covenant there is another distinction tlian the mere form of the remedy. Warranty, when annexed to a freehold, possessed, to a great degree, tlie attributes of the covenants for seisin and of right to convey,^ as is sliown by the judgment pro loco et tempore? And this was so, whether the warranty was expressed in words or was implied from the words of grant. So, too, as respects a lease ; " the word demisi imports a power of letting, as dedi a power of giving,"^ and avail themselves of such remedies as appertain to t|ie warranty only, and the change of that form will justify the reasonable inference that they designed to abide by the security which is afforded by covenant." So in the very recent case of PoUocli v. Spiedel, 17 Ohio State R. 439, where the facts were similar, the court said: "Though the defendant here claims under a conveyance from the tenant in tail with covenants of warranty, yet the plaintiffs are not thereby estopped or barred of their action, because their title does not come from the warrantor as its source. Nor does it alter the case that they have received assets from the estate of the warranting ancestor. Modern covenants of war- ranty are regarded as personal only, and the remedy, on eviction, is by an action on the covenant against the grantor or his real or personal representatives, to recover in damages for the land lost." In Jacock v. G-iUiam, it seems to have been doubted whether a discontinuance did not necessarily bar the issue in tail. Such, however, was not the case. Although the issue might be obliged to bring an action in order to get possession, yet in that action there was nothing in the warranty of the ancestor, since the statute de donis, to prevent a recovery ; Butler's note to Co. Litt., 365. So, in the able tract of Mr. Preston "On the effect of fines, &c., by tenant in tail," he says, "the issues are not barred unless there is a common recovery, or fine with proclamation, or in some special cases a warranty ; " Preston's Law Tracts, 29. By the " special cases " is here meant those referred to supra, pp. 7-9. See further as to the effect of a warranty by way of rebutter or estoppel when used in modern convey- ances, Ch. XL ' See Bricker v. Bricker, 11 Ohio State Rep. 245. ° See supra, p. 11. ' Holder v. Taylor, Hobart, 12. " Holder brought an action of covenant against Taylor, and declared for a lease for years made by the defendant by the word demisi, which imports a covenant ; and then shows that at the time of the lease made, the lessor was not seised of the land, but a stranger, and so the covenant in law broken. But he did not lay any actual entry by force of his lease, nor any ejectment of the stranger, nor any claiming under him, where- upon it was objected that no action of covenant would lie, because there was no expulsion. But the whole court was of opinion that an action did lie ; for the breach of the covenant was in that the lessor had taken upon himself to demise that which he could not ; for the word demisi imports a power of letting, as dedi a power of giving, and it is not reasonable to enforce the lessee to enter upon the land, and so to commit a trespass. But if it were an express covenant for quiet enjoying, there, perhaps, it were otherwise." In Pincombe v. Rudge, id. 3, the action was on the warranty implied by the word dedi; see supra, pp. 16, 209. THE COVENANT OF WAERANTT. 213 although on the warranty implied by dedi a warrantia chartce was the appropriate remedy, while on that implied by demisi, the remedy was by covenant, yet this, of course, made no difference in principle, and as to neither of them was an eviction always necessary to a recovery.^ And at the present day it has often been urged, in cases of apparent hardship, that the modern covenant of warranty should do more than protect against " the consequences incident upon a defective title," ^ and should, at least to some extent, comprise within itself the virtues of all the covenants for title ; yet, in the absence of peculiar local construction,^ and, as has been sug- ' Pomfret v. Ricroft, 1 Saunders, 322, note ; Holder v. Taylor, ubi supra ; Line v. Stephenson, 6 Bingham's N. C. 183 ; Crouch v. Fowle, 9 N. Hamp. 219; Grannis v. Clark, 8 Cowen (N. Y.), 36; see infra, Ch. XII. '■' The definition of the covenant for quiet enjoyment, supra, p. 125. ' Such as prevails in South Carolina, where, as was said in Moore v. Lanham, 3 Hill, 304, " The covenant of warranty has always been considered as broken, whenever a paramount title could be shown in another ; and it has been uniformly held that the vendee might bring covenant on the warranty, or resist an action for the price, without actual eviction ; Pringle v. Whitten, 1 Bay, 254 ; Bell v. Higgins, id. 326 ; Sumter r. Welch, 2 id. 658 ; Champness v. Johnson, 1809 ; Johnson v. Viscon, 1811; Furman v. Elmore, 1812; Mackey v. Collins, 2 Nott & McCord, 186; " and see also Faries v. Smith, 11 Richardson's Law R. 82. So in Jeter v. Glenn, 9 Richardson's Law R. (S. C), 378, the court seemed to consider that it was " advancing the purpose of the legislature, promoting the usual intention of parties and answering the ends of justice, to say that covenant of warranty contains all the five covenants which English conveyancers usually insert in conveyances in fee-simple," except, perhaps, it was doubted, of the covenant for further assurance. The covenant for quiet enjoyment seems to receive the same construction there as elsewhere ; Singleton v. Allen, 2 Strobhart's Eq. R. 173 ; Jeter v. Glenn, supra. In Iowa it is provided by statute that the form of a warranty in a deed in fee shall be, " And I warrant the title against all persons whomsoever ; " Rev. Code, 1860, p. 394, § 2240 (1232). This has been held " to include and imply all the usual covenants in a deed of conveyance in fee-simple ; " Funk v. Creswell, 5 Clarke (Iowa), 62 ; Van Wagner v. Van Nostrand, 19 Iowa, 426. Statutory pro- visions on this subject formerly existed in Ohio, but they have since been repealed, and in referring to these acts Mr. Wilcox, the reporter, in the note to Foote V. Burnet, 10 Ohio, 328, says : " The insecurity of title to real estate in the Virginia military district is said to have given rise to a common practice there, of using no other covenant than the general warranty, on the ground that the grantor cannot be made liable on that covenant till actual eviction. The occu- pants of some large surveys in that district, who found themselves in quiet pos- session, but without any title, and so could neither improve the lands nor sell them, made application to the legislature of Ohio, and in 1815 a statute was 214 THE COVENANT OP WARRANTY. gested, with the exception of a somewhat peculiar effect given to its operation, by way of estoppel or rebutter,^ such a construction is generally denied,^ and ihe covenant of warranty is held to be passed, undertaking to give a grantee (with a covenant of warranty) a remedy before eviction. The act is said to have been so inartificially penned as to be incapable of any reasonable construction. It was repealed in 1831 ; Chase's Laws, 855, 1906 ; see 1 Ohio Rep. 389 ; 2 id. 346 ; 8 id. 625." ' Infra, Ch. XI. ' Blydenburgh v. Cotheal, 1 Duer (N. Y.), 196 ; Allison v. Allison, 1 Yerger (Tenn.), 25; Crutcher v. Stump, 6 Haywood (Tenn.), 100 (overruling, said Catron, J., in Randolph v. Meeks, Mart. & Yerg. 61, the case of Talbot v. Bedford, Cooke, 447, where Overton, J., had said, " the modern covenant to warrant and defend is inclusive of a covenant of seisin of an indefeasible estate, and of a right to convey, and as to the mode of redress, of quiet enjoy- ment ") ; Witty V. Hightower, 12 Smedes & Marsh. (Miss.), 478; Griffin v. Fairbrother, 1 Fairf. (Me.), 96 ; Vanderkarr v. Vanderkarr, 11 Johns. (N. Y.) 122 ; Greenvault v. Davis, 4 Hill (N. Y.), 643 ; Rindskopf v. Farmers' Co., 68 Barbour's, S. C. (N. Y.) 49 ; Clarke v. McAnulty, 3 Serg. & Rawle (Pa.), 864 ; Patton V. McFarlane, 8 Penn. R. 422. " The modern covenant of warranty," said Gibson, C. J., in Stewart v. West, 2 Harris (Pa,), 338, " differs from the ancient warranty, not because the latter bound the feoffor to defend the land, but because it bound him to render, not damages, but a recompense in kind for a breach of it. The form of the writ, as well as the nature of the recompense in value, was different, but the measure of the obligation was the same. The feoffor was bound by his warranty to defend the land ; the grantor is bound by his covenant to do as much, and no more, by defending the grantee from eviction on a superior title. By reason of its straitness, even this modern covenant of warranty has given place, in English conveyances, to the common covenants for title against particular defects, which it does not reach. In Pennsylvania it has been retained by unprofessed scriveners as a nostrum supposed to contain the virtues of the whole five ; but its potency has not been recognized by the bench. The writ of warra7itia cliartCB was founded on an assize, or a writ of entr}' 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, therefore, is not the defect of title, but the eviction consequent on it." In a note to the case of Paxson v. Lefferts, 8 Rawle (Pa.) , 68, from the pen of the father of the reporter, the difference between the warranty and the cove- nant is thus adverted to : " Warranty, in its original form, has long been abolished, both here and in England. The more plain and pliable form of cove- nant has been substituted. The grantor for himself, his heirs, &c., covenants with the grantee, his heirs and assigns, that he and his heirs, executors, and administrators will warrant and defend the premises conveyed, against himself, his heirs, &c., either generally or specially, as the parties agree. This is prima facie a covenant to do what in the old form was expressly done, and it might THE COVENANT OP WARRANTY. 215 simply a covenant for quiet enjoyment,^ the only difference being that under the latter, as sometimes expressed, a recovery may Be had where it would be denied under the former.^ admit of a curious construction. If by the warranty in its original nature, the warrantor was obliged to render land only, the covenantor might, perhaps, be entitled to tender land as a compliance with his covenant, and might also avail himself of all the niceties and subtleties which characterized the ancient doc- trine. It is true that in some cases damages were also recoverable by the war- rantee. If a man be impleaded in assize, &c., and he brings a writ of warrantia charlce, if the plaintiff recover his warranty, he shall recover his damages, and also to have the value of the land lost ; Fitz. Nat. Brev. 315. But it would seem that the same rule did not take place, if the warrantor was vouched, and not sued by loarrantia chartce ; Br. Warr. Chart. 31. We have no reason to believe that in this State a covenantor ever attempted to discharge himself of the cove- nant to warrant and defend, by pleading that he was always ready to convey lands of equal value, or by showing that he had no notice of the eviction, and no demand of other land, &c. On the contrary, the covenant, like all other covenants, has always been held to sound in damages merely, which, after judgment, ma}' be recovered out of the personal or real estate, as in other cases. If, indeed, the covenant admitted of such a construction, little advantage would be gained by it." The remainder of this note is quoted, infra, Ch. XI. ' Emerson v. Proprietors, 1 Mass. 464 ; Caldwell «. Kirkpatrick, 6 Alabama, 62 ; Fowler ». Fowling, 2 Barb. S. C. (N. Y.) 303 ; s. c. 6 id. 165 ; Rea v. Minkler, 5 Lansing (N. Y.), 196 ; Athens v. Nale, 25 Illinois, 198 ; Bostwick v. Williams, 36 id. 70. ^ A striking illustration is shown in the case of Dobbins v. Brown, 2 Jones (Pa.), 75 (supra, p. 182), in which a recovery was denied upon the covenant of warranty, though it is evident that had the covenant been one for quiet enjoy- ment, the plaintiff must have recovered. The cases which give a greater effect to the covenant of warranty than to the covenant for quiet enjoyment, will be found on examination to depend upon the peculiar wording of the former covenant. Thus in Williams v. Wetherbee, 1 Aikens (Vt.), 240, where the covenant was " to warrant and defend against all lawful claims of all persons," it seems to have been thought sufficient that a judgment had been recovered under the paramount title in an ejectment of which the covenantor had notice, — in other words, that the mere omission to " warrant and defend " the land was a final breach ; and such was the view taken in Drury V. Shumway, D. Chipman (Vt.), 110, where, however, the form of the cove- nant is not given. " The last objection supposes,'' said the court, in the former case, " that a final recovery in ejectment, by a title adverse and paramount, is not a breach of this covenant, but that the plaintiff must have been actually turned out by writ of possession. In support of this, it is said that a covenant of warranty is the same in effect as a covenant for quiet enjoyment. But we regard a covenant of this description as something more than one for quiet enjoy- ment. It is a covenant to defend, not the possession merely, but the land and the estate in it. Upon this occasion we are to suppose the title derived from the 216 THE COVENANT OP WARRANTY. So, too, with respect to a covenant already noticed as sometimes efiiployed on tliis side of tlie Atlantic, but rarely, if ever, in England, called the covenant of non-claim.^ As a general rule, no distinction has in any way been taken between this cove- nant, and the ordinary covenanb of warranty. Both are, in general, held to have the same operation by way of estoppel,^ both equally possess the' capacity of running with the land,^ and confer the same rights as to a recovery in damages. As defendant to have been fairly litigated and adjudged insufficient. The after ceremony of turning the plaintiff out of possession, being an act beyond the control of either of these parties, and depending wholly upon the pleasure of a stranger, ought not to affect the present remedy of the plaintiff. He has the stipulation of the defendant that he shall forever hold this land, in the character in which he purchased it, as a freeholder in fee-simple, and this stipulation must not be violated, when the plaintiff is devested of all estate and left in a precari- ous occupancy, as a trespasser to a third person ; " and this decision was cited and approved in the recent case of Russ v. Steele, 40 Verm. 310, where the covenant was similar. ' See supra, p. 29. ^ Fairbanks v. Williamson, 7 Greenl. (Me.) 99 ; Kimball v. Blaisdell, 5 N. Hamp. 533; Everts v. Brown, 1 D. Chipman (Vt.), 99; Trull v. East- man, 3 Metcalf (Mass.), 121; Gibbs u. Thayer, 6 Gushing (Mass.), 33; Miller V. Ewing, id. 40 ; Gee v. Moore, 14 California, 472 ; and see these cases con- sidered, infra, Ch. XI. ' Claunch v. Allen, 12 Alabama, 163 ; Trull v. Eastman, supra; Bostwiok v. Williams, 36 Illinois, 70, citing the text ; Newcomb v. Presbrey, 8 Metcalf, 406, where Wilde, J., in delivering the opinion of the court, said : " It is not stated in the report of the case, that the deed to the demandant contained any covenant of warranty, and it has 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 afore- mentioned premises to the said Newcomb, his heirs and assigns, forever, so that neither I, the said Presbrey, nor my heirs, nor any other person or persons claiming from or under me, shall or will by any way or means, have, claim, or demand any right or title to the aforesaid premises.' That this clause in the deed amounts to a covenant of warranty, or of quiet enjoyment, against all per- sons claiming title under or from Presbrey cannot admit of a doubt. To constitute 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, 6 Gushing (Mass.), 32, the covenant of non-claim was limited to the grantor and his heirs, it was said: "This clause constitutes a covenant of warranty, to the extent of its import. It differs from a general warranty in this, that one is a warranty against any and all paramount titles, the other against the THE COVENANT OP WARRANTY. 217 to the estoppel, however, a contrary opinion has been expressed in Maine, in a case^ whose peculiar circumstances were such that the enforcement under sucli a covenant of the doctrine of estoppel, as generally considered to exist throughout the New England States, would have rendered the decision one of great hardship, and it was held that the covenant of non-claim did not operate by way of es- toppel or rebutter, and did not pass with the land to an assignee, and the same doctrine has been since recognized and applied in the same State.^ The doctrine upon which these decisions are con- sidered to rest will be considered in a subsequent part of this treatise.^ It will be observed that the covenant of warranty is a literal translation of the ancient form of warranty, with merely the addition of words of covenant. Littleton tells us that although the words, " warrant and forever defend," were those generally inserted in a warranty, yet that the word " defend " added no additional force, as " it seemeth that it hath not the effect of war- rantie, nor comprehendeth in it the cause of warrantie." * The form, however, " warrant and forever defend," seems to have come into general use, and it has descended to the present time. Apart from the word " warrant," the covenant would seem to be no more than an engagement that it should bar the covenantor and his heirs from ever claiming the estate, and that he and they should undertake to defend it when assailed by paramount title.^ grantor himself, and all persons claiming under him;" and in Lothrop v. Snell, 11 Gushing, 453 (where the text was cited), and Porter v. Sullivan, 7 Gray (Mass.), 441, the same view was taken. ' Pike V. Galvin, 29 Maine, 187, overruling Fairbanks v. Williamson and White V. Erskine, supra; and see the dissenting opinion of Mr. |J"ustice Wells, in 30 Maine, 539. ^ Partridge v. Patten, 83 Maine, 483. In the case of Cole v. Lee, 30 Maine, 896, 897, however, no distinction was observed between the covenants of non- claim and of warranty. 3 Infra, Ch. XI. ■• Litt. § 733. Of this Coke says, "It appears that neither defendere nor acqidetare doth create a warrantie, but warrantizare only. And as ' Ego et hceredes mei warrantizabimus,'' &c., in Latin, do create a warrantie, so ' I and ray heirs shall warrant,' &c., in English, doth create a warrantie also; " Co. Litt. 382 6. * Stewart v. West, 2 Harris (Pa.), 338. 218 THE COVENANT OP WARRANTY. The latter was, indeed, one of the consequences of a warranty, and its effect in this respect has been continued, though with modifi- cations, down to this day. The ancient practice of voucliing to warranty has already been referred to. By the common law there was a regular writ, a sum- moneas ad warrantizandum, " whereupon, if the sheriff returned that the voucher is summoned and he make default, then a magne cape ad valentiam is awarded ;"i and although these writs had become obsolete in England more than two centuries before they were abolished by statute, yet, upon general principles, notice of an adverse proceeding is there considered obviously proper in all cases where one having the benefit of any covenant of indemnity seeks to fix the liability of the covenantor by the same suit which decides his own.^ Partly upon this general principle, and partly in analogy to the practice under the old warranty, it has come to be well settled in most, if not all, of the United States, that, in general, ' Co. Litt. 101. In actions where voucher was not admissible, the practice was not unlike our own, for, says Markham, C. J., in Year Book, 8 Edw. IV. 11, " If I recover from my warrantor a judgment pro loco et tempore, and then am impleaded in an action in which I cannot vouch, as an assize or scire facias, it is competent for me to request him from whom I have thus recovered to put in a plea for me, and thus give Wm notice of the action that is pending, as other- wise I shall not be allowed to have execution on my judgment ; " and see gener- ally, as to the common-law warranty, Ch. I. « Duffield V. Scott, 3 Term, 376 ; Smith v. Compton, 3 Barn. & Adolph. 189, 407 ; Rolph v. Crouch, Law Rep. 3 Ex. 44. Pomery u. Partington, 3 Term, 666, was an action upon " a covenant war- ranting title " in a lease. In a note to page 668, the reporter says, " A prelim- inary objection was taken, viz., that the defendants were estopped from insisting on the title of M. G., because he had notice of the ejectment brought against the plaintiff, and neglected to defend his title ; but as the judgment of the court was founded on the principal question only, it is thought unnece,ssary to enter into this and other minute points, which were stated in the course of the argu- ment." " When a person is responsible to another,'' said Bell, J., in Littleton V. Richardson, 34 N. Hamp. 187, "either by the operation of law or by express contract, and he is duly notified of the pendency of the suit, and re- quested to take upon himself the defence of it, he is no longer regarded as a stranger, because he has the right to appear and defend the action, and has the same means and advantages of controverting the claim as if he was the real and nominal party on the record. In every such case, if due notice is given to such person, the judgment, if obtained without fraud or collusion, will be conclusive against him, whether he has appeared or not." Accord. Boston v. Worthington, 10 Gray (Mass.), 498; Chamberlain u. Preble, 11 Allen (Mass.), 373. THE COVENANT OP WARRANTY. 219 npon suit being brought upon a paramount claim against one ■who is entitled to the benefit of any of the covenants for title, and more particularly, it would seem, of the covenant of war- ranty, the latter can, by giving proper notice of the action to the party bound by the covenants and requiring him to defend it, relieve himself from the burden of being obliged afterwards to prove, in the action on the covenants, the validity of the title of the adverse claimant;^ nor, in the absence of fraud or collusion, will the covenantor, under such circumstances, be allowed, in the latter action, to prove that the recovery against his covenantee was not had under paramount title.^ ' Swenk V. Stout, 2 Yeates (Pa.). 470 ; Bender v. Fromberger, 4 Dallas (Pa.), 436; Leather ». Poulteny, 4 Binney (Pa.), 356; CoUingwood v. Irwin, 3 Watts (Pa.), 310 ; Ives v. Niles, 5 id. 323 ; Paul u. Witman, 3 Watts & Serg. (Pa.) 409; Williams v. Wetherbee, 2 Aikens (Vt.), 337; Park v. Bates, 12 Verm. 381 ; Pitkin ». Leavitt, 13 id. 379 ; Brown v. Taylor, id. 631 ; Turner v. Goodrich, 26 id. 708; Hinds v. Allen, 34 Conn. 195; Hamilton v. Cutts, 4 Mass. 363; Cooper v. Watson, 10 Wendell (N. Y.), 205; Miner v. Clark, 15 id. 427 ; Kelly v. The Dutch Church, 2 Hill (ST. Y.), 105 ; Morris v. Rowan, 2 Harrison (N. J.), 307; Chapman v. Holmes, 5 Halsted (N. J.), 20; Wilson ». McElwee, 1 Strobhart (S. C), 65 ; King v. Kerr, 5 Ohio, 158 ; Booker v. Bell, 3 Bibb (Ky.), 173; Prewit v. Kenton, id. 282; Cox v. Strode, 4 id. 4; Jones V. Waggoner, 7 J. J. Marsh. (Ky.) 144 ; Davis v. Wilbourne, 1 Hill (S. C), 28 ; Middleton v. Thompson, 1 Spears (S. C), 67 ; Wimberly v. Collier, 32 Georgia, 13 ; City of St. Louis v. Bissell, 46 Mo. 157 ; Graham v. Tankersley, 15 Alabama, 634; Boyd «. Whitfield, 19 Arkansas, 469; Wendel v. North, 24 Wisconsin, 223 ; Somers v. Schmidt, id. 419, citing the text ; and see 2 American Leading Cases, 419 (5th ed.), note to United States v. Howell. A covenantor has, how- ever, it seems, no right to insist on being placed on the record as a defendant in the suit brought upon the adverse title ; Linderman v. Berg, 2 Jones (Pa.), 301. ^ McConnell v. Downs, 48 Illinois, 271 ; Sisk v. Woodruff, 15 id. 15 ; unless, it may be, to show that the recovery was under title from the covenantee him- self. In North Carolina alone (unless the decisions are based upon some local usage, for the common law has in none of our States been more clearly under- stood or expounded) does a contrary opinion seem to prevail. In Martin v. Cowles, 2 Dev. & Batt. 101, the court said : " The only question on this appeal is, whether in an action brought by a vendee against his vendor, for a breach of the covenant for quiet enjoyment, a recovery in ejectment by a third person against the vendee, effected with notice to the vendor of the pendency of the ejectment, is conclusive evidence of the title of the lessor of the plaintiff. We have no hesitation in answering this question in the negative. In our opinion, the record of the judgment is not only not conclusive evidence, but it is not any evidence of title against the vendor. It would be repugnant to principle to bind any one by a judgment in a suit, where, if an opposing judgment had been 220 THE COVENANT OP WARRANTY. Cases, moreovei', have at times been presented in which the covenantee having, in the first instance, failed to acquire posses- sion of the subject of the purchase, and having himself brought suit upon the title conveyed by his vendor, has notified the latter to appear and prosecute that suit, and in the event of his failure to do so, has sought to make the judgment conclusive upon him. In a somewhat recent case in Tennessee the right of the covenantee thus to bind his covenantor was denied ; it was said that provision was made by law for making the covenantor the defendant in the adverse action, but that no precedent could be found in which the converse of the rule was applied in making the covenantor a plaintiff, and the question of title was therefore considered still an open one in the action on the covenant. ^ But in Vermont the law has been differently decided, and it has been held, with more 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 that suit conclusive upon the latter ; ^ and in recent cases elsewhere the same view has been taken. ^ rendered, he could derive no benefit from it, to which suit he was not a party, nor had it in his power to become a party, and where he could not challenge the inquest, nor examine witnesses, nor exercise any of the means provided by law for ascertaining the truth and asserting his right. In real actions, a warrantor might be made a party by voucher ; in ejectment, a landlord may come in to defend the possession of his tenant ; but there is no provision in law by which a vendor can be brought in to vindicate the possession of his vendee. To a judgment against the vendee the vendor is a stranger, and therefore that judg- ment is, against him, evidence only of the fact of the judgment, and of the damages and costs recovered; Saunders v. Hamilton, 2 Hay. 282; Shober v. Kobinson, 2 Murph. 33; Williams v. Shaw, N. C. Terra Rep. 197, all rec- ognize this doctrine ; and whatever opinions may have once been entertained, we had thought that for many years back it had been perfectly settled," and in the recent case of Wilder v. Ireland, 8 Jones' Law R. (N. C.) 88, this decision was recognized and approved. In neither of these cases was the adverse title even supposed to be derived from the covenantee himself 1 Ferrell i>. Alder, 8 Humphreys (Tenn.), 44. ^ In Park v. Bates, 12 Verm. 381, the question was passed over without par- ticular notice by the court; but it was settled in Pitkin «. Leavitt, 13 Verm. 379, and Brown v. Taylor, id. 637. So, by the Louisiana Code, " When the pur- chaser is himself obliged to commence 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. ' Gragg«. Richardson, 25 Georgia, 670; White v. Williams, 13 Texas, 258. THE COVENANT OP WARRANTY. 221 What, then, is a proper notice of the suit brought under the adverse title ? In Pennsylvania, it has been held that " to have the effect of depriving the warrantor of the right to show title, the notice should be unequivocal, certain, and explicit; a knowledge of the action, and a notice to attend the trial will not do, unless it is attended with express notice that he will be required to defend the title ; " 1 and the same view has been taken in recent cases else- where.^ Prom this, and the expression also used, " the notices here were not produced," it would be reasonable to infer that the notice should be in writing, but this has been decided in a case in New York not to be necessary. "A parol notice," it was said, " gives the informa- tion to the grantor quite as well as a written one, and as there is no technical rule requiring such a notice to be in writing, no writing is necessary." ^ Prom this, however, Bronson, J., dissented, saying, " This is not like a notice which will sometimes affect the title of a party by showing it tainted with fraud. In these cases, notice means only knowledge of a particular fact, . . . and in general it is a matter of no moment in what form the information was received, or from what source it was derived. But here the notice, if it is to have any effect, is in itself a legal proceeding. It advises the warrantor that the title which he professed to grant " 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 which his warrantor has notice, and in the prose- cution of which he takes part. The chance which the warrantor in the one case has of asserting his title is as good -as the chance which the warrantor in the other case has of asserting his title ; the purchaser who is prevented irom ever getting the possession is at least as badly oiF as the purchaser who having got the possession is turned out of it ; a judgment against the purchaser when he brings the ejectment and vouches his warrantor is as much evidence of an adverse title paramount to the warrantor's, as is the judgment when the ejectment is brought against the purchaser, and he vouches the warrantor. There is there- fore no substantial difference between the ordinary case and the present case.'' ' Paul V. Witman, 3 Watts & Serg. 410. ^ Boyd U.Whitfield, 19 Arkansas, 470; Somers u. Schmidt, 24 Wisconsin, 421, in both of which the passage in the text is cited. ^ Miner v. Clark, 15 Wendell, 427, notwithstanding it had been generally said in Gilbert v. The Turnpike Company, 3 Johns. Cas. 108, and In re Cooper, 16 Johns. 633, " a notice in legal proceedings means a written notice." 222 THE COVENANT OP WAEEANTT. is called iu question ; " and after referring to the old practice of voucher by a writ of summons, he proceeded to say, " as, in the one case, the right could only be asserted by means of a writ served by a public officer, he ought not, in the other, to be prejudiced by any thing less definite and formal than a writing which will advise him of what has been done, and what he is required to do." The view thus expressed is not only supported by analogy to the former practice, but has the merit of being conducive to certainty in a proceeding whose effect is conclusive upon a question of title ; 1 and as it has been recently decided in Vermont that in ' In the very recent case of Somers v. Schmidt, 24 Wisconsin, 417, the cove- nantor had knowledge of the adverse suit, but not the express notice required in Paul V. Witinan, and the court said, " The language in that case (Paul v. Wit- man) is quoted with approbation by Mr. Rawle, and although his conclusion may not be that notice in writing is necessary in order to bind the warrantor by the judgment, yet it very clearly is, that it should in all cases come from the war- rantee or party relying on the covenant, or be given under his direction or authority, and should be to the effect that the warrantor is required to defend the title. In Miner v. Clark (15 Wend. 425) it was held by a majority of the court, that a verbal notice of the suit to the grantor, with a request to him to attend to the defence, was sufficient. Such is undoubtedly the rule which has been held in all cases of this nature ; and we know of none where it has been decided that notice aliunde, or mere knowledge of the suit incidentally acquired through third persons was sufficient, and the rule is a reasonable and just one. It requires no more of the warrantee or tenant in possession than he ought to be willing to perform if he desires to charge the warrantor with the effect of an estoppel by judgment. It is in harmony with the principle on which such estoppels rest. The warrantor, being notified of the suit, and having the defence tendered to him so far as it may be necessary for him to establish his title, if he had one, becomes a quasi party to the suit, has his day in court, and ought to be concluded by the judgment. But without such notice and a. request to defend, he has no such opportunity, and ought not to be estopped. And when we consider this principle upon which the judgment is held conclusive against the warrantor, and the rule which almost universally prevails in judicial proceedings, that notices must be in writing, it would seem that Judge Bronson was not so very far wrong in Miner v. Clark, when he insisted that this also should be written. And especially would this seem proper where it is held, as it has been in some of the States, that notice to the warrantor in his lifetime is sufficient to bind his legal representatives after his decease, without the giving of further or other notice to such representatives. This was so held in Brown v. Taylor, 13 Verm. 631 ; but the notice there was in writing. But as it appears to be settled that verbal notice is sufficient, we are not disposed to part i'rom that rule, though we might ■wish, for the sake of greater convenianoe and certainty, that it had been otherwise established. " If, on the other hand, upon mere knowledge of the suit, however acquired, THE COVENANT OP WAEEANTT. 223 case of the death of the covenantor no further notice need be given to his representatives,^ some hardship miglit ensue if a verbal notice were suffered to bind the former in the first in- stance, as such a message, resting in parol, may leave no trace behind it, while, if written, something might still be in existence to warn or notify them.^ It would, seem, however, that the question of notice is, to some extent, matter for the jury. Although it is the province of the court to the warrantor would be authorized to come in and assume to conduct the defence so far as the proof of his own title was concerned, there might be some reason for holding him bound by such knowledge. But without the assent of the defendant in the suit, he has no such authority. It is res inter alios acta, and if he should apply to the court for permission to defend, the defendant not having voluntarily offered it, the answer would be that he had no occasion to do so, since his rights could not be affected by the judgment." ' Brown v. Taylor, 13 Verm. 631. " We are of opinion,'' said the court, " that the plaintiff having commenced an action of ejectment against a person in posses- sion 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 any thing further in order eventually to charge him or his legal representatives with the consequences of a failure to establish a title in them to the lands conveyed. On serving that notice, it became the duty of McDaniel to make proof of his title in that action, and this duty devolved upon his legal representatives without any further notice from the plaintiff." In this case, however, not only was the notice written, but the covenantor had appeared by counsel in the cause. ^ In the late case of Chamberlain v. Preble, 11 Allen (Mass.), 373, it was said, " The strict formalities required in the writ of warrantia chartoe and voucher, as used in the ancient common-law warranty, are not required to render the judgment conclusive in an action upon the modern covenant of warranty. The question in these cases usually is, whether the defendant has had reasonable notice of the suit, and an opportunity to defend it. If he has, he is bound by the proceedings. It is not necessary that the notice should appear of record ; and no particular form of words is necessary. In some cases a verbal notice has been held sufficient ; in others, the presence of the defendant and his participation in the defence have been enough to render the judgment conclusive. In this case, B. (the original covenantee and the grantor of the plaintiff), having assumed the defence and employed counsel, was acting with the consent and at the request of the present plaintiff, C, and it is, perhaps, a sufficient answer to the defend- ant's objection that, while that relation existed, B. is to be regarded as having been the attorney and agent of C to do all that properly pertained to the defence of that suit. By assuming the defence, B. became privy, if not a partj', to that judgment, and pending the suit a notice from him to the defendant, it seems to us, was quite as proper and effectual as if given in the name of C. Under such a notice, with an opportunity to appear and defend, he cannot be deemed a stranger to these proceedings ; Miner v. Clark, 16 Wend. 427 ; Rawle on Cove- nants, 200." 224 THE COVENANT OF WARRANTY. determine what is and what is not a proper and sufficient notice as to time 1 and certainty, yet the fact of its reception seems to be within the province of the jury ,2 except in the single case where the party ' The judgment would not be conclusive upon the party bound by the covenant, if the notice were not given in reasonable time ; Somers v. Schmidt, 24 Wisconsin, 421, supra ; nor unless the latter were allowed to have the benefit of all defences to the action which his covenantee might have made, including, it has been held, the right to a new trial upon payment of costs, Eaton u. Lyman, 26 Wisconsin, 62. The following remarks in Davis v. Wilbourne, 1 Hill (S. C), 28, as to the local rules on this subject in South Carolina, were approvingly quoted in Middleton ». Thompson, 1 Spears (S. C), 69. " Notice in cases within the summary juris- diction should be given at or before the return of the process. In cases within the general jurisdiction, notice at any time before the expiration of the rule to plead. The object is to enable the warrantor to come in and defend his title. He ought, therefore, to have reasonable time to prepare for it, and the time which the law allows to a defendant furnishes perhaps the safest rule. In the first class of cases, however, the process might be served on the last hour of the last day before the return, so as to render the service of the notice impracticable before the return. In these cases notice within a reason- able time afterwards would be all that could be expected. So, where the war- rantee has entered an appearance, and put in his plea to the merits, I should think that notice, even after the continuance, if the warrantor had time to prepare evidence for the trial, would be suflicient." ^ Such at least was the determination in Collingwood v. Irwin, 3 Watts (Pa.), 310, where the former had conveyed to the latter with covenant of warranty, and the latter had been dispossessed, under a judgment in ejectment obtained against him by one Robinson. " The third proposition," said Kennedy, J., who delivered the opinion of the court, " offered to be proved was, that the title of Irwin to the land under the deed of conveyance, made to him by the plaintiff in error, was better than that of Robinson's, under which he was evicted from the land. The testimony was clearly admissible ; for the plaintiff in error was no party on the record to the judgment in ejectment, under which Irwin was turned out of possession of the land. The judgment in ejectment was therefore orAy prima facie evidence, as against the plaintiff in error, of Robinson's title to the land being better than that of Irwin's ; but it is alleged that the plaintiff in error had notice of the commencement and pendency of the action of ejectment, and is, therefore, concluded by the judg- ment rendered in it in favor of Robinson's title. Supposing this to be so, how does it appear that he had such notice ? Certainly not by any exhibition of the record of the action of ejectment, and the judgment given in it ; because, as al- ready observed, he is not a party on the record of it ; neither does it appear by any admission of his, placed upon the record of this suit. Whether he had such notice or not, was then a matter in pais, and became a question of fact, to be decided by the jury, and not by the court ; but the court, by rejecting the evidence on this ground, must necessarily have decided on the fact that the plaintiff in error had such notice. Under this point of view, I apprehend the court erred ; for even in case evidence of a regular notice from Irwin to Col- lingwood of the action of ejectment being brought against him, with a request THE COVENANT OP WAEBANTT, 225 bound by the covenant is made a party to, or has placed himself upon the record of the adverse suit. Indeed, unless the party bound by the covenant is so notified that he becomes, either actu- ally or constructively, the party to the suit by which the land is sought to be recovered from the covenantee, there is no room for the application of the rule that the judgment of a court of com- petent jurisdiction cannot be inquired into collaterally ; for the exception is as well settled as the rule itself, that the rule applies only to those who are said to be parties or privies to the action. Where the covenantor is properly notified, he becomes the latter, if not the former. ^ Where he is not thus notified, the rule loses its application. to appear and defend against it, had been given by Irwin, still as long as such notice and request were not admitted bj' CoUingwood, it was the duty of the court below to have admitted the evidence in regard to the title to the land, and after- wards to have directed the jury that if, from the evidence, they believed that Col- lingwood was notified by Irwin or his attorney, of the action of the ejectment being brouglit, and was requested likewise to appear and defend against it, they were to consider him bound and concluded by the judgment rendered in it ; and whether Irwin had a better title to the land than Robinson or not, was a question which they could not decide according to any opinion of their own, which they might form by an examination of their respective titles, but were bound to decide it according to the judgment given upon it in the action of ejectment." As, therefore, it did not appear that the notice in this case was as unequivocal, certain, and explicit, as it was afterwards said in Paul v. Witman, 3 Watts & Serg. (Pa.) 407, that a notice ought to be, but was in some degree calculated to mislead, it was held that the question of title was fairly open to be decided according to the whole evidence which might have been given at the trial by both parties. ' Paul V. Witman, 3 Watts & Serg. (Pa.) 407. An excellent illustration of the doctrine referred to in the text will be found in the recent case of Chamber- lain V. Preble, 11 Allen (Mass.), 870, already cited. The land in question had been conveyed by Preble, the defendant, to Baldwin, with a covenant of warranty, and by Baldwin to Chamberlain, the plaintiff. Comer, who had been an alien, claimed the land by title paramount, as tenant by the curtesy, and on the trial (in which Preble, the covenantor, took no part) the case was decided in Comer's favor (Comer v. Chamberlain, 6 Allen, 166), upon an agreed state of facts, in which the true date of Comer's naturalization was innocently misstated. The defendant, Preble, contended that as Comer's wife had conveyed the land before the true date of her husband's naturalization, he could not be tenant by the curtesy and therefore could not have recovered, and so the plaintiff virtually admitted a fact which did not exist and was material in the case. The court, premising that if the plaintiff had, without suit, acknowledged the title of Comer, and paid the amount required to extinguish it, he would have done so at his peril and could not now prevail against the defendant without proving the paramount title of Comer, said: " To what extent and in what manner must be 15 226 THE COVENANT OF WABRANTT. But the mere fact of making a notice of an adverse suit con- clusive upon a covenantor in a subsequent action against liim, a party who is threatened with eviction by the owner of a paramount title, and who has notified his warrantor to come in and defend, resist the claim which is sought to be enforced by legal proceedings, in order that the judgment which may be rendered against him may be conclusive in a suit upon his covenant of warranty ? A faithful performance of the covenant to warrant and defend requires the covenantor, on notice, to appear and take upon himself the defence of the estate, when assailed by •■> paramount title. 'After suit brought and notice to him, the covenantor stands in a different relation to the party who has a right to look to him for_indemnity. If he does not assume the defence, it is at least his duty to communicate all information in his power as to the validity of the plaintiff's title. If he fails to do so, if he stands by and permits a recovery for want of evidence of which he has knowledge, he cannot be permitted to show tlfmt the result would have been otherwise if the evidence had been produced, and so avoid the effect of a recovery in a suit against him. If he pays no attention to the notice, and turns his back upon the suit, he cannot, when called upon to respond, be permitted to prove that the defendant in the original suit would have prevailed if the defence had been conducted with a fuller knowledge of material facts. The judgment of courts must be based on the facts as they are presented. No doubt if the truth could always be fully and accurately known, many decisions would appear erroneous, but it is for the public interest that there should be an end of litigation ; and parties and privies who have once had a day in court can- not, by mere proof or offer of proof that the judgment was founded on error in fact, renew the controversy. Nor can it make any difference that the facts, or some of them, in a proper case, were agreed by the parties, instead of being passed upon by the jury. Few trials before a jury are had without thoagf^ment of parties or counsel to many matters thought not to be in controversy. |f The execution of written instruments, the testhnony of absent witne^^^. and th* date of the happening of a particular event, are of this class. ,A mistake in iche ad- mission of any one such fact, if material, would be quite - "^ 'ts effaect upon the conclusiveness of the judgment as an error in M " , ^^s,-t'eiii.nit of facts. Indeed, if the effect of the judgment is to be avoidem fivii cashes, it is difficult to say that the existence of material evidence, which tl lefen.dant failed to pro- duce, would not have the same effect. To come to tbJ,t,^it is evident, would be to open to litigation every judgment for eviction upon which the covenantee seeks indemnity from his grantor. The judgment by which the plaintiff has been evicted is not to be impeached in an action against a grantor upon his cove- nants who was duly notified, merely by proof of mistake in the conduct of the defence of the original suit, if there is no want of fidelity and the judgment is free from fraud or collusion. In Jackson w. iVIarsh, 5 Wend. (N.Y.) 44, it seems to be held that, after notice to the covenantor and a request to defend, the cove- nantee is not bound to defend, and a judgment on default even is conclusive. And -whun the covenantee acts in good faith under the advice of counsel after an action is commenced and notice given, with failure of the defendant to respond, it is difficult to see why he should be obliged to go through the form of a trial which he is advised must result in a recovery against him." THE COVENANT OF WARRANTY. 227 might, in many cases, work injustice. Evidence of tlie title under which the recovery was had, might not, and in most cases probably would not, appear upon the record, and yet that title miglit be one derived from the covenantee himself subsequent to the purchase; To exclude evidence of this, notwithstanding a notice, would be obviously improper. ^ The only question which therefore arises is ' Booker v. Bell, 3 Bibb (Ky.), 175; Pitkin v. Leavitt, 13 Vt. 384; Swazey v. Brooks, 30 id. 692; Wilson v. McElwee, 1 Strob. (S. C.) 66. The following remarks of Wardlaw, J., in Middleton v. Thompson, 1 Spears (S. C), 73, are of general application, though contained in a dissenting opinion. "In many cases, where a record of judgment is not proof of the truth of the matters recorded, it is evidence of its own existence, and of the legal consequences thence deducible. Hence, in cases of indemnity, the judgment showing a re- covery against the indemnified has been admitted as evidence of his loss, both as to the extent and as to his legal liability ; but notice to the person bound to indemnify is usually referred to as strengthening the evidence as to competency as well as effect ; see Duffield v. Scott, 3 Term, 374; Clark v. Carrington, 7 Cranch, 322 ; Kip v. Brigham, 7 Johns. 170. By analogy to such cases, and in imitation of the voucher under the ancient warranty, the modern practice of giving notice to one who is bound in a covenant running with the land seems to have grown up, and to have been gradually extended to all cases of covenants to warrant either land or personalty, and to all cases where 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 ; Bender ». Fromberger, 4 Dall. (Pa.) 436, note; Leather v. Poulteney, 4 Binney (Pa.), 862; Hamilton v. Cutts, 4 Mass. 362; Blasdale «. Babcock, IJohns. (N.Y.)517; Waldo ». Long, 7 id. 174; San- ders V. Hamilton, 2 Hayw. (Tenn.) 236-282 ; and in our own State, Goodwyn v. Taylor, 2 Brev. 171 ; Whitmore v. Casey, 2 id. 424 ; Bond's Adms. v. Ward, 1 N. & M'C. 201 ; Davis v. Wilbourne, 1 Hill, 29 ; and the MS. case of Allen v. Eound^ tree, Columbia, May Term, 1832, book 5, p. 393. To give the vendee the ad- vantage of the warrantor's information about the title, and to save as well the trouble and expense of two trials of the same matter as the confusion and in- justice which would result from conflicting verdicts on the same evidence, the recovery against the vendee is admitted as evidence for him in his action against the vendor with warranty, if the vendor had reasonable notice of the suit, and the validity of the title conveyed by him was tried; more especially if the vendor assisted in the defence. The failure of the warrantor's efforts to defend the suit is evidence of a breach of his undertaking to warrant and defend the title con- veyed by him, as perhaps is his neglect of notice to defend. According to our own decisions, by the proper notice the warrantor has been made privy to the suit, and is concluded, by a judgment for the plaintiff, from disputing what such judgment ascertains, that the plaintiff had a title better than the defendant; and this judgment, with proof of the notice to the warrantor, and proof that (as said in Davis v. Wilbourne) his title was in issue, will be conclusive that the plaintitf's title was better than the one which was warranted." 228 THE COVENANT OF WARKANTT. as to the burden of proof. On whom is this to be thrown, when the record does not on its face set forth the title ? So far as the plaintiff in his action on the covenant must, notwithstanding a notice given by him, affirmatively show by evidence, dehors the record, that the recovery against him was under a title not derived from himself, the question admits of easy solution. It will be remembered that in a declaration for a breach of the covenant for quiet enjoyment it is not merely necessary to allege that the eviction was made under paramount title, but that it was " existing before and at the time of the conveyance to the plaintiff," as the eviction might indeed be under a paramount title, but one which had been derived from the plaintiff himself, for which, of course, his covenantor would not be responsible.^ The same doctrine may be applied as to notice. Beyond this point, it does not seem necessary for the plaintiff to go. Wliere he has given a sufficient notice, it is believed to be enough if he show that the title under which the adverse judgment was obtained, was not one derived subsequent to the execution of the deed to himself.^ ' See supra, p. 193. " Phelps V. Sawyer, 1 Aikens (Vt.), 157; Booker ». Bell, 3 Bibb (Ky.), 175; Swenk V. Stout, 2 Yeates (Pa.), 470 (though judgment was in that case given for the plaintiff, on the ground that all the facts averred in the declaration must, on demurrer, be taken as true). Thus, in Kelly v. Dutch Church, 2 Hill (N. Y.), 113, Bronson, .J., held the following language: "But it is said that as the defendants had notice, and were requested to defend the ejectment suits, they are now estopped from setting up their title, and that question remains to be considered. Whether the defendants took part and aided the plaintiff in the defence of the suits brought against him does not appear, but they must at least have furnished him with the means of setting up their title, for it was given in evidence on the trial. And this case is, I think, plainly distinguishable from those to which we have been referred in relation to the effect of notice, for the reason that the defendant's title was not only in evidence in the former suits, but it was virtually admitted to be a good title. The plaintiffs in those actions did not recover on the ground that their right was superior to that of the Dutch Church, but on the ground that the defendant in those suits was precluded by the acts and declarations of his immediate grantors from sheltering himself under the good title of the church. If the defendants, on receiving notice of a suit upon a title apparently superior to theirs, had neglected to appear and defend, and their title had not been given in evidence, or if, when in evidence, it had been adjudged defective, they would probably be estopped from setting it up in answer to an action on the covenants. But that is not this case. There is a short, and, I think, conclusive view of this question. The plaintiff had necea- THE COVENANT OF WARRANTY. 229 The next question is as to the effect of a judgment where there has been no notice to tlie party bound by the covenant, of tlie suit upon which that judgment is founded. It seems to have been thought, on the one hand, that on the presumption of omnia rite acta, the record of the adverse suit is of itself prima facie evidence that the title on wliich the judgment therein is based, is a para- mount one, it being, however, perfectly competent for the defendant to inquire into the merits of that judgment.^ But the weight of authority inclines to the position that although the record of the adverse proceeding may be evidence of eviction? yet that is not sarily averred that he was evicted by persons having a title paramount to that of the defendants. Upon that averment issue has been joined. The plaintiff holds the affirmative, and the burden of proof lies upon Mm. He has not only failed to prove the averment true, but in attempting to' do so he has proved it false. It was not enough for the plaintiff to show that he gave the defendants notice of the suits brought against him, for the obvious reason that the claimants may have recovered on a right or title subordinate to that of the defendants. It was necessary, therefore, for the plaintiff to go further, and show on what ground the claimants succeeded. He did so ; and the evidence has proved fatal to his cause." The decision in Buckels u. Mouzon, 1 Strob. (S. C.) 448, proceeded in effect upon the same grounds. It has, however, been decided that when judgment has been once recovered against the covenantor, equity will not enjoin that judgment on the ground of the eviction not having been by title paramount, that being a fact exclusively cognizable by the common-law courts ; Yelton «. Hawkins, 2 J. J. Marsh. (Ky.) 1. There is indeed a suggestion, towards the latter part of the decision, that " the utmost the Chancellor could have done was to have decreed a new trial, on the establishment of facts sufficient for that purpose," but this, it is conceived, must not be understood as weakening the point cited in the text as actually decided, as the Chancellor had enjoined the judgment, which decree the Court of Appeals reversed, and the injunction could scarcely have proceeded on the ground alleged in the bill that the trial came on unexpectedly to the covenantor, his counsel having assured him that it could not be reached on that day. ' Collingwood v. Irwin, 3 Watts (Pa.), 310, supra, p. 224; Paul v. Witman, 3 Watts & Serg. (Pa.) 407. See City of Lowell v. Parker, 10 Met. (Mass.) 315. "If no such notice," said Williams, C. J., in Pitkin v. Leavitt, 13 Vt. 384, " be given of the pendency of the action of ejectment, the recovery may be evidence of an eviction, but according to the decision in Williams i>. Wetherbee, 2 Aik. (Vt.) 329, it must be accompanied with other evidence that it was not on the strength of an older and better title. Possibly it would have been better in that case to have considered the record as prima facie evidence of all the material allegations, turning the burden of proof on the party who was bound to make a good title, and who was supposed to know what title he had when he gave the deed." " It is presumed that the record would or would not be evidence of eviction. 230 THE COVENANT OF WARRANTY. even prima facie evidence that such eviction was under title para- mount, as against one who has been neither a party nor a privy to the proceeding.! 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 Mo. 128 ; Sisk v. Woodruff, 15 111. 15, unless, indeed, the record of the judgment would, according to the course of the decision in the State, be itself deemed sufficient evidence, in most cases, of an eviction, as seems to have been thought in Kentucky, in Booker v. Bell, 3 Bibb(Ky.), 175; Hanson «. Buokner, 4 Dana (Ky.), 254 (Davis v. Logan, 5B. Mon. (Ky.) 341, was in equity, and there was a general adjustment of title and damages) ; Rhode v. Green, 26 Ind. 83 ; but such a course of decision has been frequently denied by eases which hold that a judgment itself, unaccompanied by evidence of an actual or constructive change of possession, is no evidence of an eviction; McDowell v. Hunter, Dudley (Ga.), 4; Paul v. Witman, 3 Watts & Serg. (Pa.) 407 ; Webb v. Alexander, 7 Wend. (N. Y.) 286; Feriss v. Harshea, Mart. & Yerg. (Tenn.) 55 ; Hoy v. Taliaferro, 8 Smedes & Marsh. (Miss.) 741 ; Dennis v. Heath, 11 id. 218 ; Jliller v. Avery, 2 Barb. Ch. (N". Y.) 682. ' Booker v. Bell, 3 Bibb, 175 ; Prewit v. Kenton, id. 282 ; Devour v. Johnson, id. 410; Cox v. Strode, 4 id. 4; Hanson v. Buckner, 4 Dana, 254; Graham v. Tankersley, 15 Ala. 645 (see also King v. Norman, 4 Com. Bench, 883 ; note to U. S. V. Howell, 2 Amer. Lead. Cases, 419) ; Stevens v. Jack, 3 Yerger (Tenn.), 403-; Fields v. Hunter, 8 Mo. 128; Sisk v. Woodruff, 15 111. 15; Wilder t!. Ireland, 8 Jones' Law R. (N. C.) 87 ; Rhode v. Green, 26 Ind. 83. In Soraerville v. Hamilton, 4 Wheat. (U. S.) 230, the question was left undecided, the court being divided in opinion. In Sisk v. Woodruff, supra, the point was carefully considered. " On whom," said Treat, C. J., who delivered the opinion, " does the law cast the burden of proof, where the warrantor had no notice of the pendency of the action of ejectment ? Some courts hold that the record fur- nishes primayacie evidence of an eviction under valid title, and thereby compel the warrantor to prove affirmatively that he has not broken his covenant. Other courts require the plaintiff to prove by evidence dehors the record, that the judgment was founded upon an adverse and superior title. . . The weight of author- ity in this country seems to favor this conclusion. We regard it as mucli the best rule. It is a familiar principle of law that a man shall not be bound by a judgment pronounced in a proceeding to which he is not a party, actually or constructively. He should be allowed to appear in the case and adduce evidence in support of his rights, before he is concluded by the judgment. If a warrantor has no notice of the action against his grantee, and no opportunity of showing therein that he transferred a good title, he cannot in any sense be considered a party to the action, and therefore ought not to be bound by any adjudication of the question of title. But if he has notice, he may become a party to the suit, and it is his own fault if his title is not fully presented and investigated. He then has an opportunity of sustaining the title he has warranted, and defeating a recovery by the plaintiflf in ejectment. If he fails to do this successfully, he is concluded from afterwards asserting the superiority of that title, and compelled to refund the purchase-money, with interest. By giving the warrantor notice, thede- THE COVENANT OP WAEEANTT. 231 But however prudent it may be for a purchaser, when sued under an adverse title, to give notice to the party bound by the covenant and require liim to defend the suit, it is not necessary to his recovery in the action on the covenant that such notice be given. 1 This was otherwise at the common law in case of war- ranty. Although it was not every real action in which voucher was admissible,^ yet if a warrantee were impleaded in any action in which it was admissible, it became his duty to vouch his grantor to warranty ; " and if he will not vouch him, he shall not after- wards have a writ of warrantia chartm" ^ And although under fendant in ejectment may relieve himself from the burden of afterwards proving the validity of the title under which he is evicted. But if he neglects to give the notice, he must come prepared to prove on the trial of the action of covenant that he was evicted by force of an adverse and superior title ; in other words, he must show that the warrantor, by appearing and defending the action of eject- ment, could not have prevented a recovery. This rule imposes no hardship upon a party. The giving of notice subjects him to but little inconvenience. It by no means follows that a judgment in ejectment against a grantee is founded upon the invalidity of the title derived from the grantor. It may be obtained by col- lusion, by a failure of the defendant to make proof of the title under which he entered, or upon a conveyance from him, or under a tax title originating in hia own default. There is no good reason for requiring a warrantor to show in the first instance that his covenant has not been broken. In this case Sitk had no notice of the pendency of the action of ejectment ; and the record of the proceedings had therein was only evidence of the eviction of Woodruff. It was incumbent on the latter to prove in addition that the eviction was under title paramount." ' King V. Kerr, 5 Ohio, 158 ; Rhode v. Green, 26 Ind. 83 ; Duffield v. Scott, 3 Term, 376 ; Smith v. Compton, 3 Barn. & Adolph. 408 ; Claycomb y. Hunger, dl 111. 378, citing the text. Sugden says positively, " A purchaser is not bound to give notice of an adverse suit to the covenantor ; " Sugden on Vendors (13th ed), 499. So by the Scotch law, "Regularly, the disponee, when the eviction is threatened, ought to intimate his distress to the disponer, that he may defend the right granted by himself; but though such intimation should not be made, the disponee does not lose his right of recourse, unless it should appear that in the process of eviction he has omitted a relevant defence, or subjected himself to an incompetent means of proof; " Erskine's Institutes, vol. i. p. 132. 2 Supra, p. 12. » Fitz.Nat.Brev. 134; Co. Litt. 1016 ; 8Edw. IV. 11, perMarkham, C. J. So, by the Spanish law, a vendor, if not " cited to warranty," is not liable at all, and the vendee loses all recourse to him. By the Code of Louisiana, " the purchaser threatened with eviction who wishes to preserve his right of warranty against the vendor, should notify the latter in time, of the interference which he has experi- enced. This notification is usually given by calling in the vendor to defend the action which has been instituted against the purchaser. In the absence of this 232 THE COVENANT OP WAERANTT. the modern covenants notice seems not necessary to be given, yet its advantage obviously is to enable the covenantee to recover on less testimony, since he is then not obliged to show under what title the recovery was had, except that it was not a title derived from himself since his purchase. In reviewing then what has been said on the subject of notice to the covenantor of the adverse proceedings, the following points appear to be settled by the weight of authority : — First. The notice must be distinct and unequivocal, and ex- pressly require the party bound by the covenant to appear and defend the adverse suit. Secondly. If such notice appear upon the record of that suit, or if the covenantor be made a party to it, the court will, in the action on the covenant, be authorized to instruct the jury that the recovery in that suit is conclusive upon and binds the defendant in the action on the covenant. Thirdly. If the notice do not thus appear on the record, the question of conclusiveness of the judgment will depend upon the belief of the jury as to the reception of the notice. Fourthly. If the record of the adverse suit does not exhibit on its face the title under which the recovery was had, the plaintiff in the action on the covenant must, notwithstanding proper notice has been given, prove that such title did not accrue subsequently to the deed to himself. Fifthly. If no notice has been given, the record of such adverse suit is not even prima facie evidence that the title was a paramount one, though it may, under some circumstances, be evidence of eviction, and Sixthly. It is not indispensable to the recovery on the covenant, that notice of the adverse suit shall have been in any way given. The effect of notice to the covenantor as to his liability for costs and expenses incurred by the covenantee, in defending against the paramount title, will be considered in a subsequent chapter. ^ notification, or if it has not been made in due time, that is, in time for the vendor to defend himself, the warranty is lost ; provided, however, that the vendor shall show that he possessed proofs which would have occasioned the re- jection of the demand, and which have not been employed, because he was not summoned in time ; " art. 2493-4. > Ch. IX. THE MEASURE OP DAMAGES. 233 CHAPTER IX. THE MEASURE OP OAMAGES. Upon the subject of the measure of damages for a breach of the covenants for title, it has been said by a late English writer of authority, " the cases upon this point in England are very scanty, while they are to be found in remarkable abundance in America." ' Upon the warranty of ancient law no damages what- ever were recoverable, unless, it may be, in case the warrantor had not other lands wherewith to replace tliose which his war- rantee had lost.^ And the value of the lands was taken to be that at the time of the warranty made, so that " if land be better after feoffment, by buildings or otherwise, he who recovers in value, recovers but according as the land was worth at the time of the feoffment, and no more." ^ The change from the ancient to the ' Mayne on Damages (2d ed. p. 142), and he adds, "It is to be regretted that the multiplication of courts of independent jurisdiction in that country should make their decision often a source of embarrassment rather than an assistance in legal investigation." It is this cause which obviously' makes the task of a text writer so much more difficult in America than in England. ' Supra, p. 15. = Year Book, 30 Edw. III. 14 b. So in 47 Edw. III. 32, it is said : " On voucher, if special matter be shown by the vouchee, viz., that the land at the time of the feoffment was worth only £100, and now at the time of the voucher is worth £200 by the industry of the feoffee, the tenant shall recover only the value as it was at the time of sale ; for if the act of the feoffee has meliorated the land, this shall not prejudice the feofifer in his warranty." So in 19 Hen. VI. 46 a, 61 a, Brooke's Ab. Voucher, pi. 69 ; id. Recouver in Value, pi. 69. And this was recognized to have been the law in Humphrys v. Knight, Cro. Car. 4.56 ; so in Bellel v. Bellel, Godbolt, 151, " if there be new buildings, of which the war- ranty was demanded, which were not at the time of the warranty made, and the deed is shown, the defendant ought not to demur, but to show the special matter, and enter into the warranty for so much as was at the time of the making of the deed, and not for the residue." See also 1 Reeve's History of the Common Law, 448. And there was no difference as to this between express and implied war- ranties ; Gilbert on Tenures, 124. It has been considered by the highest American authority that " the point 234 THE MEASURE OP DAMAGES. modern system of law, bringing with it, as it did, the change from ■warranty to the covenants for title, brought, it would seem, no change in the rule of damages ; ^ though as to this we are obliged to judge rather from the absence than the presence of contem- poraneous authority.^ is too clear to admit of doubt, that the increased value of the land by build- ings or other improvements made no alteration at common law in the rule of damages; " per Kent, C. J.,Sn Pitcher v. Livingston, 4 Johns. (N. Y.) 1; so per Tilghman, C. J., in Bender v. Fromberger, 4 Dall. (Pa.) 442; per West, C. J., in Staats v. Ten Eyck, 3 Caines (N. Y.), Ill; see these cases, infra. ' It is, however, a little singular that the case of Flureau v. Thornhill, 2 W. Black. 1078, has in several instances been cited as a direct authority for this position. That well-known case decided no more than that upon a contract for the purchase of real estate, to which the vendor was (without fraud or fault of his own) unable to make a title, the purchaser was not entitled to damages for the fancied goodness of the bargain which he had lost, a rale which, though then for the first time laid down, and since at times doubted, is supported by the weight of authority, and has been approved in the very recent case in England of Bain v. Fothergill, Law Rep. 6 Excheq. 59. "The rule of the common law," said Parke, B., in Robinson v. Harman, 1 Excheq. 850, " is that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same condition ■with respect to damages as if the contract had been performed. The case of Flureau v. Thornhill qualified that rule of the common law. It was there held that contracts for the sale of real estate are merely on condition that the vendor has a good title, so that when a person contracts to sell real property, there is an implied understanding that if he fail to make a good title the only damages recoverable are the expenses which the vendee may be put to in investigating the title.'' An exception has been engrafted 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; Lee v. Dean, 3 Wharton (Pa.), 331; Bitner D. Brough, 1 Jones (Pa.), 1-27; Drake v. Baker, 34 N. J. 358; Hammond v. Hannin, 21 Mich. 374 (where the subject was elaborately con- sidered) ; or where a vendor, having merely a contract for the purchase of land, assumes to sell the property as if he were the owner; Engel v. Fitch, Law Rep. 3 Q. B. 314; affirmed, 4 id. 659. But when the contract has been executed by a conveyance of the land, a different rule applies. Thus where, in con- sideration of a premium, a lease was made for twenty-one years, with a cove- nant for quiet enjoyment, and it subsequently appeared that the lessor was incompetent to grant a lease for so long a term, it was held that the lessee -was entitled not only to the premium paid, but to the value of the term lost ; Lock V. Furze, 19 Common Bench, 96; affirmed, Law Rep. 1 C. P. 441; see infra. ^ Gray v. Briscoe, Noy, 142, seems to be the only case in the books, and, as Mr. Sedgwick (Measure of Damages, p. 167, 4th ed.) properly says of it, " it well illustrates that want of any precise measure of damages which characterizes THE MEASURE OF DAMAGES. 235 For reasons which have been referred to ui another part of tliis treatise/ the cases as to covenants for title arc much more numerous on this side of the Atlantic than in England, and the subject of the measure of damages upon their breach has here been handled with fulness and precision. The first question which was here presented, as between vendor and purchaser, as to the measure of damages relatively to in- creased value of the land, was upon a breach of the covenant for seisin. In Staats v. Ten Eyck,^ decided in New York in 1805, the ques- tion before the court was simply whether the vendor should be held liable for a rise in the value of the land from adventitious sources independently of beneficial improvements, and the policy of the rule under the old warranty was declared by the court ^ to be based upon reason and authority, and the measure of damages declared to be the value of the land at the time of sale, the best estimate of which was found in the consideration money paid. The question as to beneficial improvements was not presented. This case was, in the next year, followed in Pennsylvania by Bender v. Fromberger,* where a verdict was found for the plaintiff, almost all the early English decisions. " B covenants that he was seised of Bl' acre in fee-simple, when, in truth, it was copyhold land in fee, according to the custom. By the court: The covenant is [not] broken, and the jury shall give damages in their consciences according to the rate that the county values fee-simple land more than copyhold land." In Lewis v. Campbell, 8 Taunton, 728, where the plaintiff, in an action on the covenant for quiet enjoyment, claimed to recover the value of certain buildings, &o., by which he had converted the land into pleasure-grounds, the research of counsel (and the case was, the court said, "argued ably and at much length") was unable to produce any authorities on the subject, and Dallas, C. .T., said, " I very much doubt whether in any case a plaintiff can recover for the improvements and buildings he may choose to make and erect upon the lands ; " and the whole court were of opinion that, in the form in which special damage was assigned in the declaration, the value of the buildings could not be recovered." And see the later cases in England, infra. So, as was said in the early case in Kentucky of Cox v. Strode, 2 Bibb (Ky), 277 • " In all the comments made by the elementary writers on the change introduced by the covenants for title, none mention any change in the amount of recompense to the plaintiff, which would scarcely have happened in case these covenants had introduced a new measure of damages." ' Supra, p. 21. ^ 3 Caines, 111. 3 Per Kent, C.J. "4 Dallas, 442. 236 THE MEASURE OF DAMAGES. subject to reduction if the court should be of opinion that the plaintiff was not entitled to recover the value of improvements made after the pui'chase, and notwithstanding an able argument for tlie plaintiff, the measure of damages was held to be limited by the consideration money. ^ In the subsequent case in New York of Pitcher v. Livingston, decided in 1809, although the matter was treated as res Integra, the decisions just referred to were approved and followed. It was considered tliat as to the allowance for improvements, the common law was unquestioned, and that it was never designed by the intro- duction of covenants to establish any other value of damages. The rule of the civil law left the damages to an arbitrary and ' "It has been contended," continued Tilghman, C. J., who delivered the opinion, " that the true measure of damages in all actions of covenant is the loss actually sustained. But this rule is laid down too generally. In an action of covenant for 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 have suffered to a much 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 excessive mischief. Indeed, the counsel have, in some measure, given up this rule, by confessing that when buildings of magnifi- cence are erected to gratify the luxury of the wealthy, it would be unreasonable to give damages to the extent of the loss ; but the ruinous consequences would not be less to many persons who have sold lands on which no other than useful buildings have been erected. The rise in the value of land, not only in towns on the sea-coast, but in the interior part of the United States, is such that it can hardly be supposed any prudent man would undertake to answer the incalcu- lable damages which might overwhelm his family under the construction con- tended for by the plaintiff. I have taken pains to ascertain the opinion of lawyers in this State prior to the American revolution, and I think myself war- ranted in asserting, from the information I have received, that the prevailing opinion among the most eminent counsel was, that the standard of damages was the value of the land at the time of making the contract.'' The case of Staats V. Ten Eyck was referred to in the course of the argument, as also the cases of Liber v. Parsons, decided in the year 1785, and Guerard's Executors v. Rivers, decided in 1792 (both reported in 1 Bay (S. C), 19, 266, and both since over- ruled), where the standard of damages was held to be the value at the time of eviction. These cases were said by Tilghman, C. J., to have been decided in the hurry of a jury trial, and not founded on the mature deliberation given by the New York judges in Staats w. Ten Eyck. It must be observed, also, that the South Carolina cases were both actions on covenants of warranty, and not on the covenant for seisin, and the distinction between the measure of damages on these two covenants is still recognized in several of tlie States, though long since repudiated in South Carolina. See infra, p. 241. THE MEASURE OP DAMAGES. 237 undefined discretion, and destroyed any tiling like a fixed rule. Whatever expectations of rise in value the purchaser may have had were confined to him alone, and could not have entered as an in- gredient into the bargain. It was the land, and its price at the time of sale, which the parties had in view, and to that subject the operation of the contract ought to be confined. The damages were, therefore, held to be measured by the consideration money .^ The authority of these leading cases has never in substance been departed from, and decisions to the same effect will be found in perhaps every State in which the covenant for seisin is em- ployed.^ Although the cases thus referred to were avowedly based upon the absence of fraud on the part of the vendor, yet it must not be ' 4 Johns. (N. Y.) 1. A dissenting opinion was given in this case by Spencer, J., but it yields in force of argument to those of Kent, C. J., and Van Ness, J., with which the other members of the court concurred. 2 Marston u. Ilobbs, 2 Mass. 433; Caswell v. Wendell, 4 id. 108; Smith a. Strong, 14 Pick. 128; Stubbs v. Page, 2 Greenl. 378; Willson v. Will- son, 6 Foster (N. H.), 234; Mitchell v. Hazen, 4 Conn. 495; Sterling v. Peet, 14 id. 245; Weiting v. Nissley, 1 Harris (Pa.), 655; Tapley v. Le- beaume, 1 Mo. 550; Martin u. Long, S id. 391; Wilson v. Forbes, 2 Dev. (N. C.) 30; Logan v. Moulder, 1 Pike (Ark.), 323; Bacchus v. McCoy, 3 Ohio, 211; Clark v. Parr, 14 id. 121; Cummins v. Kennedy, 3 Litt. (Ky.) 118; Cox V. Strode, 2 Bibb (Ky.), 277 ; SwafFord v. Whipple, 3 G. Greene (Iowa), 264; Crisfield v. Storr, 36 Md. 1.50. Nichols v. Walter, 8 Mass. 243, was a very strong case ; the plaintiff had received a covenant for seisin from the defendant's testator in a conveyance of property in New Hampshire, the con- sideration for which was $18.67. The plaintiff sold the property for $113.33, with covenant of warranty, on which he was sued by his grantee, who had been evicted from the possession, and then recovered $555.49, being the value of the land at the time of eviction, this being the measure of damages in that State, on the covenant of warranty. Notwithstanding these circumstances, the plaintiff was limited in his recovery to the amount which he had himself paid for the property. The rapid increase of improvements in a new country has led to the passage, in some of the States, of statutes known as " the occupying claimant law," by which, in some cases, the paramount owner is obliged to pay to the occupying claimant the value of all permanent and lasting improvements, unless the latter should refuse, on demand, to pay to the former the value of the land without the improvements. See statutes of Ohio (ed. of 1841), 607; Hart v. Baylor, 1 Hardin (Ky.), 597; Coxy. Strode, 2 Bibb (Ky.), 278. This is the familiar rule in equity, when a party lawfully in possession under a defective title has made permanent improvements, and the true owner, if he come into equity to obtain his estate, is compelled to allow for such improvements ; 2 Story's Eq. §§ 799, 1289. 238 THE MEASURE OP DAMAGES. supposed that, in an action on the covenant, fraud can be taken ad- vantage of by the purchaser to increase his damages. So long as the distinction is preserved between tort and contract, so long must tlie remedy be by action in the nature of a writ of deceit, and not by action of covenant.^ It must, however, be noticed that the rule as thus stated to be settled, applies, perhaps, in its universality only to cases between vendor and purchaser, in the usual acceptation of the term ; and that an exception, to be hereafter noticed, may be considered to exist, first, in cases of leases, and, secondly, in cases of sales where the vendor's consideration is to be secured by the pur- chaser's improvements.^ But while the law is thus well settled where the breach is that of the covenants for seisin or of right to convey, there is a great diversity of authority where the breach is that of the covenants for quiet enjoyment or of warranty, it being considered in some States that by analogy to the common law and the difficulty in its practical application of a less simple rule, the damages should be limited by the consideration money, and in others that these cove- nants should be regarded as covenants of indemnification, whose object, therefore, is to compensate the party for his actual loss at the time of their breach. In a recent case in the Rolls Court, in England, in a suit for the administration of a testator's estate, it appeared that he had con- veyed several acres of land, covenanting for the title, to one who, having erected several houses thereon, sold them to a purchaser, who, being evicted by paramount title from four of them (the testator having liimself conveyed them away before the sale), claimed to be a specialty creditor for the value of the houses and the land, and the Master of the Rolls, declining even to hear the plaintiff's counsel, said, " I am of opinion that the measure of the damages upon these covenants includes the amount ex- pended in converting the land into the purposes for which it was sold." 3 ' This is here noticed, lest some expressions in Pitcher v. Livingston and Bender v. Fromberger should mislead. ^ See infra. ^ Bunny v. Hopkinson, 27 Beavan, 565, per Sir John Romilly. It may be here incidentally noticed that under the recent statute of 21 & 22 Vict. ch. 27, com- monly called " Lord Cairns' Act," it is provided that, " in all cases in which a THE MEASURE OP DAMAGES. 239 Upon this side of the Atlantic, the first case in which the ques- tion was considered was Horsford v. Wright, the second case reported in Connecticut,^ where the court said, " The constant rule of this court has been to ascertain damages by the value of the land at the time of the eviction, though the British rule is to give the consideration of the deed. ■ The diversity in tliis respect is undoubtedly founded in the permanent worth of their lands as an old country, and the increasing worth of ours as a new country, and it is supposed that the purchaser goes on, impi'oves, and makes the land better, till he is evicted," and " immemorial usage in Connecticut " was afterwards said to be the foundation of this rule, which has always been adhered to there.^ So in Vermont, " this rule of damages was established at an early day." ^ In Maine, " the same principles are established." * In Massachusetts, the leading case upon the subject is Gore v. Brazier,^ decided in 1807, in which the court endeavored to found the practice upon English authority, saying, that however con- venient and proper the feudal rule might have been, yet "when lands were aliened for money, when improvements and agriculture became an important object of public policy, and when the alienor might have no other lands to render a recompense in value, it became expedient that another remedy for the purchaser on evic- tion should be allowed. And it is certain that before the emigra- tion of our ancestors, the tenant, on being lawfully ousted by a title paramount, might maintain a personal action of covenant broken on a real covenant of warranty." *■ The authorities, how- Court of Chancery has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract or agreement, or against the commis- sion or continuance of any wrongful act, or for the specific performance of any covenant, contract or agreement, it shall be lawful for the same court, if it shall think fit, to award damages to the party injured, either in addition to or in sub- stitution for such injunction or specific performance." See also, as to this act, infra, Ch. XV. ' Kirby's Rep. 3, decided in 1786. 2 Sterling v. Peet, 14 Conn. 245. ' Drury v. Shumway, D. Chipman, 111 ; Park v. Bates, 12 Vt. 387. '' Cushinan v. Blanchard, 2 Greenl. 268 ; Swett v. Patrick, 12 Maine, 1 ; Hardy v. Nelson, 27 id. 525. ' 3 Mass. 623. * See however as to this, supra, p. 209 et seq. 240 THE MEASURE OP DAMAGES. ever, cited in support of these remarks,^ give no different rule of damages from tliat which existed before at the common law. The decision in Massachusetts was, however, said to be " conformable to principles of law applied to personal covenants broken, to the ancient usages of the State, and the decision of our predecessors supported by the practice of the legislature," ^ and its authority has been consistently followed in that State. ^ In Louisiana, the principle of the civil law is of course adopted.* The cases which support the opposite rule are much more numerous. In South Carolina the law was at first unsettled. Tiie early ' Waters v. Dean, 1 Brownlow, 21 ; 2 id. 164. " Some of these decisions are referred to in the opinion, but are not to be found reported. ' Caswell V. Wendell, 4 Mass. 108 ; Bigelow v. Jones, id. 512 (and, notwith- standing an apparent decision to the contrary, in Sumner v. Williams, 8 id. 221) ; Norton v. Babcock, 2 Met. 516, White v. Whitney, 3 id. 89. In Sum- ner V. Williams the action was on the covenants for seisin, of right to convey, against incumbrances, and of warranty. The court refused to assess the damages by the value of the land at the time of eviction, as contended for by the plaintiffs, but at the same time treated the case as if brought upon "covenants broken at the time of the execution of the deed ; '' though, immediately after, it is said, "Moreover, if the action had been commenced on covenants which respect the title, there is no doubt the measure of damages would have been the purchase- money with interest." ■• Bissell V. Erwin, 13 La. 148; Hale v. New Orleans, 18 La. An. 321. The rule of the civil law (which, in its endeavor to afford in every case a full compensation to the party injured, necessarily was in many instances arbitrary and unsettled, and which as to warranty recognized no distinction between real and personal property) may be found in the Digest, lib. xix. tit. 1, §46: " lUud expeditius videbatur ; si mihi alienam aream vendideris, et in eam ego sedifi- cavero, atque ita earn dominus evincit: nam, quia possum petentem (dominum), nisi impensam, asdificiorum solvat, doli mali exceptione summovere, magis est ut ea res ad periculum venditoris non pertineat. Quod et in servo dicendum est, si in servitutera, non in libertatem evinceretur, ut dominus mercedes et impensas praestare debeat. Quod si emptor non possideat sedificium vel servum, ex empto habebit actionem ; in omnibus tamen his casibus, si sciens quis alienum vendiderit, omnimodo teneri debet.'' See also 1 Domat, part 1, book 1, tit. 2, §§ 15, 16, 17 ; 1 Cushing's Dom. 233. For the Scotch law, see 1 Erskine's Law of Scot- land, book 2, tit. 3, § 13. " Absolute warrandice in case of eviction affords an action to the disponee against the disponor, for making up to him all that he shall have suffered through the defect of the right, and not simply for his THE MEASURE OP DAMAGEg. 241 cases adopted the rule just referred to,^ but this was soon departed from, and the measure of damages limited by the consideration- money.^ By statute, moreover, it was declared,^ that " in any action or suit at law or in equity for a reimbursement or damages upon covenant or otherwise, the true measure of damages shall be the amount of the purchase-money at the time of the alienation with legal interest," but it was also said * that the rule of law was settled long before its enactment. So, in New Jersey, a decision at Nisi Prius ^ allowed the plaintiff to give evidence of his improvements in order to increase his damages, but in subsequent cases ^ every allowance for improve- ments has been rejected. So, in Virginia, there was an early case ^ to the same effect as those in New England, but it was subsequently departed from.^ In Stout V. Jackson,^ the subject was elaborately examined, and it was held that the safer rule of damages was to measure them by the value at the time of the conveyance, and this was con- sidered as finally settled by the subsequent case of Threlkeld v. Pitzhugh.io So, in Tennessee, an early case ^^ left this question undeter- mined, but by recent authorities^^ it may be said to be now settled. indemnification by the disponor's returning the price to him,'' &c. Also Diction- ary of Scotch Law, tit. " Warrandice." See Sedgwick on Damages, c. 6. ' Libert). Parsons, 1 Bay (S. C), 19; Guerard v. Rivers, id. 265; and see Witherspoon v. Anderson's Ex'rs, 3 Desaussure, 245. ^ See an elaborate opinion of Brevard, J., in Furman v. Elmore, cited in the note to Mackey v. Collins, 2 Nott & McCord, 189 ; as also Henning v. With- ers, 3 Brev. 458 ;' Wallace v. Talbot, 1 McCord, 468 ; Ware v. Weathnall, 2 id. 413 ; Earle v. Middleton, Cheves, 127 ; and Pearson v. Davis, 1 McMull. 37. 5 Stat. 17th December, 1824, § 4. * Earle v. Middleton, Cheves, 127. '• Hulse V. White, Coxe's Rep. 173. ° Stewart v. Drake, 4 Halst. 142 ; Holmes v. Sinnickson, 2 Green, 313 ; Morris v. Rowan, 2 Harr. 304. ' Mills V. Bell, 3 Call, 277. 8 Nelson v. Matthews, 2 Hen. & Munf. 164. ' 2 Randolph, 132; Coalter, J., dissented. "• 2 Leigh, 463. See also Jackson v. Turner, 6 Leigh, 119; Haffey v. Bur- chetts, 11 id. 88. " May V. Wright, 1 Overt. 385. " Elliott V. Thompson, 4 Humph. 101 ; Shaw v. Wilkins, 8 id. 647. 16 242 THE MEASURE OF DAMAGES. The rule that the measure of damages on the covenants for quiet enjoyment and of warranty is limited by the consideration- money and interest, may be said to be now settled law in the States of New Hampshire,^ New York,^ New Jersey, Penn- sylvania,^ Virginia, Ohio,* North Carolina,^ South Carolina, ' In Loomis v. Bedel, 11 N. H. 87, the rule was considered to be as yet unsettled, and in Wilson v. Cochran, 14 id. 399, the court said, "We are not aware of any decision which settles the matter authoritatively in this State ; " but in the more recent case of Willson v. Willson, 5 Fost. 236, the subject was carefully considered, and the damages fixed by the consideration-money, and in Foster v. Thompson, 41 N. H. 379, this was considered as settled. ' Bennett v. Jenkins, 13 Johns. 50; Kelly v. The Dutch Church of Schenec- tady, 2 Hill, 116 ; Kinney v. Watts, 14 Wend. 38 ; Peters v. McKeon, 4 Denio, 550. Mr. Sedgwick (Damages, 168) mentions that the revisers of the New York statutes proposed to fix the measure of damages by the value at the time of eviction, with interest, costs, &c., but that the provision was not finally adopted. In the case of a lease, however, the rule in New York, as in England, is that the measure of damages is the value of the"term lost, over and above the rent reserved ; Mack v. Patchin, 42 N. Y. 167 ; and see infra, p. 255. * Brown v. Dickerson, 2 Jones, 372 ; Bender v. Fromberger, 4 Dall. 441 ; King V. Pyle, 8 Serg. & Eawle, 166 ; McClure v. Gamble, 3 Casey, 288 ; Cox V. Henry, 8 Casey, 19. See an elaborate argument in McClowry v. Croghan, 1 Grant, 307, as to the measure of damages for a breach of contract to lease, which the court held could not be measured by the value of the contract, but must be limited to the consideration agreed to be paid. * King V. Kerr, 5 Ohio, 164 ; Foote v. Burnet, 10 id. 317 ; Clark v. Parr, 14 id. 118; Vail v. Railroad Co., 1 Cincinnati Sup. Ct. R. 573; Wade v. Corn- stock, 11 Ohio St. R. 82. In this State a statute passed 10th March, 1831, called "The Occupying Claimant Act," provides that " occupying claimants, being in quiet possession of lands under title from some public office or deed duly authen- ticated and recorded, or under a tax title, or sale by order of court, &c., shall not be evicted or turned out of possession by any person who shall set up and prove an adverse and better title, until the occupying claimant shall be paid the value of all lasting and permanent improvements made, &c., unless the occupying claimant shall refuse to pay the value of the land without the improvements, if demanded by the successful claimant ; " Statutes of Ohio, 607, edition of 1841. There were former statutes on this subject which this supplied. If improvements are to be paid for at all, it certainly seems most rational that the expense should be borne by the party who reaps their benefit, and this rule may have the effect of forcing the real owner to a speedy assertion and proof of his superior title, since few men would be willing to pay for improvements which they did not themselves direct. The rule in equity, where its aid is invoked by the real owner, is in accordance with the principle of this statute, but is not entirely free from inconvenience in its application. See the authorities in the note to page 1029 of Perkins' edition of Sugden on Vendors. ' ° Philips V. Smith, 1 Car. Law Repos. 476 ; Williams v. Beeman, 2 Dev. 483 • THE MEASURE OP DAMAGES. 243 Georgia, 1 Kentucky, ^ Indiana,^ Tennessee, Arkansas,* Missouri,^ Iowa, ^ Wisconsin, '' Maryland, ^ and California ; ^ and such a rule has also been adopted by the Supreme Court of the United States.io Some of the reasons which support these authorities have al- ready been given in treating of the measure of damages on a breach of the covenant for seisin, on which, as we have seen, it is conclusively settled iu every State in the Union in which the subject has been discussed, that the damages are to be measured by the value of the land at the time of its alienation, which is established prima facie by the consideration named in the convey- ance. And if it be enquired why, if this rule be so generally and rigidly adhered to as to one of the covenants for title, has a dif- ferent one been anywhere established as to another (since all the arguments drawn from the civil law in favor of recompensing an innocent party for improvements made upon the land which he had supposed was his, apply with equal force to both), the only an- Nesbit V. Brown, 1 Dev. Ch. 30. This case went so far in support of the prin- ciple that on an agreement that in case of eviction the covenantee should recover twice the consideration-money and all costs, the court held this a penalty, and that only the purchase-money could be recovered. ' Davis V. Smith, !y Ga. 285, where is an elaborate opinion by Nesbit, J. In Martin v. Atkinson, 7 Ga. 228, the contract was executory as to one of the lots, a " bond for titles" only having been given ; there were also express rep- resentations made by the vendor that he would pay for improvements. 2 Cox V. Strode, 2 Bibb, 279 ; Booker v. Bell, 3 id. 175 ; Hanson v. Buckner, i Dana, 253 ; Pence v. Duval, 9 B. Mon. 49. 5 Reese v. McQuilkin, 7 Ind. 450. * Logan V. Moulder, 1 Pike, 323. * Dickson v. Desire, 23 Mo. 166 ; Tong v. Matthews, id. 4.37. « Stewart v. Noble, 1 G. Greene, 28 ; Swafford v. Whipple, 3 id. 263 ; Wil- helm V. Fimple, 31 Iowa, 137. ' Blossom V. Knox, 3 Chand. 295. s Crisfield v. Storr, 36 Md. 150. « McGary v. Hastings, 39 Cal. 360. '" Hopkins v. Lee, 6 Wheat. 118. There are many other authorities cited in 2 Greenleaf 's Evidence, § 269, 4 Kent's Commentaries, 471, and Sedgwick on Damages, 175, as supporting this position ; but many of these (as well as some cited in Davis v. Smith, 6 Ga. 274) are not based upon covenants for quiet enjoyment or of warranty, but upon the covenant for seisin, respecting which there has not been for many years the least conflict of authority in the United States as to the measure of damages. Some of the authorities cited in Davis v. Smith are, moreover, cases of executory contracts. 244 THE MEASURE OF DAMAGES. swer appears to be the technical one that the damages are to be estimated by the value of the land at the time of the breach of the covenant. The covenant for seisin is broken as soon as it is made, — that for quiet enjoyment or of warranty is not broken until eviction ; hence the difference. This answer seems scarcely satisfactory. Technically speaking, the covenants are no more than an expression of the intention of the parties, and, within certain well-defined rules, these are to be construed according to this intention. A vendor when making them never dreams of such an enlarged liability by reason of his purchaser's improvements ; and, on tlie other hand, the latter takes the title for what it is worth at the time ; he makes, by his contract, the purchase-money, the measure of the value of the title, and takes security by means of covenants, in that amount and no more.^ Nor is what some of the decisions call the equi- table view of the case free from anomalies. If it is hard that a purchaser, acting in good faith, should lose the improvements wherewith his labor has enriched the land, it is equally hard that a vendor, acting also in good faith, should pay for them. If a vendor, with the honest belief that an estate is his, sells it to a purchaser, who, with the same conviction, improves it and en- hances its value, and the real owner, immediately on discover- ing his title, sues for and recovers his estate, the profit and loss should, according to the view so taken, be adjusted by taking from the vendor much more than the consideration-money he received, paying it to the purchaser, who will thereby be put in the same position he was in before, and letting the real owner retain and reap the benefit of all the improved value of the estate.^ ' Kinney v. Watts, 14 Wend. (N. Y.) 41. ^ These remarks were approved by Woodward, J., in Hertzog v. Hertzog, 10 Casey (Pa.), 422. The following remarks were contained in the opinion delivered in the case of Willson u.Willson, 5 Foster (N. H.), 236, 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 a rise in its price or by the improvements made upon it by the purchaser, a third person recovers the land by a paramount title, and the buyer sues the seller on the covenant in his deed. He recovers the value of the land at the time of the eviction. He loses nothing, the seller pays for the improve- ment, and the owner alone profits by the transaction. Now there may be no 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 for a time to be ignorant of his legal rights. The other rule which makes the con- sideration paid the measure of damages, has at least the recommendation of THE MEASURE OP DAMAGES. 245 It is difficult to perceive the equity of this rule, and courts of equity have not followed it. It is a familiar principle in equity that if the real owner of an estate invoke its aid for the recovery of the estate from one who, acting in good faith, has put improve- ments upon it, that aid shall be given to him only upon tlie terms that he will make due compensation to such innocent person to the extent of the benefits which will be received from those im- provements, since he who seeks equity must do equity.^ The practical applica.tion of the rule that the damages are meas- ured by the value at the time of eviction may, moreover, work injustice in cases where the property may have depreciated in value, and, in particular, when that depreciation may have been owing to the neglect or other fault of the purchaser. In case he has received a covenant for seisin and a covenant for quiet enjoy- ment, he can, of course, sue upon either, or he is allowed, it is said,^ if he sue upon both, to have judgment entered upon either. If the property is less valuable than when he purchased it, he elects to enter judgment upon the covenant for seisin, and receives the consideration-money, which is far more than the property is then worth. If, however, it has increased in value, judgment is entered on the covenant for quiet enjoyment. The impossibility of adapting laws to suit all emergencies has been lamented by jurists of every age and country, and if it be obvious that the rule of the common law as to the measure of damages on covenants for title will often afford an imperfect remedy, still the remedy is practically better than that affiarded by the civil law. But the common-law rule is capable of being modified by cir- cumstances in a court of law, or by a court of equity. If the vendor has made use of fraud or concealment, an action on the case in the nature of a writ of deceit may restore to the purchaser the value of all he has lost.^ If the purchaser had, with knowl- dividing the loss between the buyer and the seller ; for the seller loses the con- sideration, and the buyer loses the value of the improvements.'' ' Story's Eq. Jurisp. §§ 799, 1237, &c. ; Sugden on Vendors, c. 22, §§ 51, 62, 53, &c. See the remarks in Davis v. Smith, 5 Ga. 274 ; and Hertzog v. Hertzog, libi supra. = Sterling v. Peet, 14 Conn. 245. = Supra, p. 238 ; Lee v. Dean, 3 Whart. (Pa.) 316. 246 THE MEASUEE OF DAMAGES. edge of the defect, gone on with his improvements, his claim for their allowance will seem to rest upon less strong grounds than if he were ignorant,^ notwithstanding he has taken the covenants for his protection against the defect. And if the paramount oiuner has lain by and seen these improvements go on without asserting his claim to the estate, if it be doubtful whether this can, in a court of law, be set up as an equitable defence to an action for the mesne profits, it is very certain that it would be recognized in a court of equity.^ There may be a distinction, which, although it has been called " a nice and speculative one," ^ has been repeatedly applied to the somewhat analogous rule of damages upon admeasurement of a writ of dower, and this is between a rise in .value owing to improve- ments made by the purchaser, and an increase from other and adventitious circumstances.* By the common law, as stated by Coke,^ it seems that the wife was entitled to admeasurement of dower as against the heir, ac- cording to the value of the land at the time of the dower being assigned to her, whether that value was greater or less than " in the time of the husband," and whether occasioned by improve- ments or not. But as respects a purchaser, the rule was different ; and we find that " if feoffee improve by buildings, yet dower shall be asjt was in the seisin of the husband." ^ ' Sugden on Vendors, 61i. ^ Green v. Biddle, 8 Wheat. (U. S.) 77 ; Lord Cawdor ». Lewis, 1 Young & Coll. (Ex.) 427 ; Bright v. Boyd, 1 Story's R. (Mass.) 478-493. ' Pitch,er v. Livingston, 4 Johns. (ST. Y.) 1.. ■* See Mayne on Damages, 147, quoted infra. * Co. Litt. 32 a. ' Year Book, Mich. 17 Hen. in. (cited Fitz. Ab. Dower, 192) ; Pasch. 81 Edw. I. (cited Fitz. Ab. Voucher, 288) ; from which this reason is quoted from the Hale MSS. : " For the heir is 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 in value, which is not reasonable." The cases cited from the Year Books appear to sustain this distinction, though not for the reason given by Lord Hale. The cases are these : " E., who was the wife of R., demands one-third part of three acres of land with the appurte- nances in E., as her dower, against 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 had her seisin, saving the said W. the houses buUt by him," &c. • THE MEASURE OP DAMAGES. 247 In America, a further distinction is taken in many of the States as regards the purchaser ; and though in none of them is the wife allowed to receive any advantage by reason of improvements, yet there are many cases which give her the benefit of the increase in value exclusive of improvements, such as would arise from im- provements near the property or the general prosperity of that section of country. The leading case in support of this doc- trine is Thompson v. Morrow,^ where the land had received a twofold increase of value, first by reason of the purchaser's im- provements, and, secondly, by the rapid advance of the city of Pittsburg. The case was twice elaborately argued, and Tilghman, C. J., who delivered the opinion of the court, referred to the cases cited from the Year Books,^ and observed that such of them as limited the wife to the value of the land at the time of its alienation were all cases where the purchaser had made impi-ovements, and then remarked : " I have found no adjudged case in the Year Books confining the widow to the value at the time of the alienation by her husband, where the question did not arise on improvements made after the alienation. In our own State, it does not appear that the point now in question has been decided, though I have certainly considered the general understanding to be, that the widow should have the advantage of all increase of value not arising from improvements made after Mich. 17 Hen. III. " In a writ of dower the demand was for the third part of three acres, and of a mill, &c., where the tenant vouched to warranty ; and when the vouchee came, he put forward a charter which stated that he ought to warrant a piece of land, &c. Herle ; The demand is for a mill, and the charter speaks of a piece [of land] only ; judgment if to warrant, &c. The Tenant ; We have, since the gift, built a mill on that piece ; judgment if he ought not to war- rant, &c. And the case was that the woman's husband was seised of the piece [of land] when it was not built on. Hengham ; If I enfeoff you of a vacant piece of land, and you afterwards build a castle on it, ought I to warrant to you the castle ? (as though intimating the negative) . But for all this, you ought to have disclosed the circumstances when you vouched ; therefore in respect of the mill let him be absolved, and let him warrant the remainder, &c. Note, that in a writ of dower, if the woman suiFer the tenant to vouch to warranty where her husband died seised, the woman shall not recover damages, &c. ; " Pasch., 31 Edw. I. See also Perkins, Dower, 328. ' 5 Serg. & Rawle, 289. There had been such a suggestion in the prior case in Massachusetts of Gore v. Brazier, 3 Mass. 623, but it was only a dictum, ' Supra, note 6 to p. 246. 248 THE MEASURE OP DAMAGES. the alienation. Having considered all the authorities which bear upon this question, I feel myself at liberty to decide according to what appears to me to be the reason and the justice of the case, which is, that the widow shall take no advantage of improvements of any kind made by the purchaser, but, throwing those out of the question, she shall be endowed according to the value at the time her dower shall be assigned to her." The distinction thus taken has not only been adhered to in Pennsylvania,^ but has been fol- lowed almost wherever it has been noticed.^ But it must be dis- tinctly observed, that although the cases upon covenants for title do not seem to refer particularly to this distinction, yet their decision has almost necessarily denied its application to that subject. Upon the subject, however, of recompense in value to the pur- chaser for the loss of improvements which he has himself put upon ' In the subsequent cases of Benner v. Evans, 3 Penn. R. 466 ; and Shirtz v. Shirtz, 6 Watts, 258. " In Massachusetts, in the case of Powell v. Manufacturing Co., 3 Mason (C. C. U. S.), 365, will be found an elaborate opinion of Judge Story, fully adopting the rule in Thompson v. Morrow, which has also been sustained in the States of Maine, Delaware, Indiana, Kentucky, and Ohio; Mosher u. Mosher, 15 Me. 372; Green V. Tennant, 2 Harr. (Del.) 336 ; Smith «. Addleman, 5 Blaokf. (Ind.), 406 ; Taylor V. Brodrick, 1 Dana (Ky.), 348; Dunseth v. Bank of United States, 6 Ohio, 76. In New York, the cases of Dorchester v. Coventry, 11 Johns. 510, and Shaw v. White, 13 id . 179, were decided before Thompson v. Morrow, and Chancellor Kent, though leaving the point undecided in Hale v. James, 6 Johns. Ch. 258, has said, in his Commentaries, " The better and more reasonable American doctrine upon this subject I apprehend to be, that the improved value of the land from which the widow is to be excluded in the assignment of dower, as against a. purchaser of her husband, is that which has arisen from the actual labor and money of the owner, and not from that which has arisen from extrinsic or general causes ;" 4 Com. 68. This language, however, was not fully concurred with in Walker v. Schuj'ler, 10 Wend. 485, Savage, C. J., saying: "Whether the Chancellor is correct or not in this conclusion, I am not to enquire. It is sufficient for my purpose that in this State the widow's rights have been frequently adjudicated under a statute like the present statute (which had formerly been held in Hum- phrey V. Phinney, 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, it should be observed, was given, as has been above stated, before the case of Thompson v. Morrow was decided. In Virginia, though the point was strongly pressed in the argument of Tod V. Baylor, 4 Leigh, 509, the court were unanimously of opinion that THE MEASUEE OP DAMAGES. 249 the land, it may be said that under our modern system of con- veyancing, and where the transaction is between vendor and pur- " this doctrine seems to rest on ground similar to that of the recovery of land against the vendor on eviction, which on great consideration we have fixed at the purchase-money with interest, in Stout v. Jackson and Threlkeld u. Fitzhugh." See supra, p. 241. Mr. Sedgwick says (Damages, p. 132), that as to the point of admeasurement of dower, " some perplexity exists, and the greatest authorities of American law, Chancellor Kent and Judge Story, are divided," since, he remarks, " the latter holds that the widow shall have the benefit of improvements made by the heir, but not those made by the purchaser; " while, " on the other hand, the former declares it to be the ancient and settled rule of the common law that the widow takes her dower according to the value of the land at the time of its alienation, and not according to its subsequent or improved value, though he assented to the right of the dowress to be allowed for increased value arising from extrinsic or general causes." On examination, however, it may be doubted whether there is any conflict of authority as to the rule itself. Each cites the opinion of the other with approbation, and the only difference of opinion seems to be as to its source. Judge Story, in Powell v. Manufacturing Co., after reviewing and approving the cases which deny to the widow the value of improvements made by a purchaser, comes to the case of Hale v. James, decided by Chancellor Kent, and says, "That learned judge went there again elaborately into the doctrine, and adhered to the rule already laid down, viz., the value of the land at the time of the alienation, acting upon it as a clear rule of the common law." And it is here (as to the source of the rule, and not its correctness) that the difference of opinion exists. " With the most profound respect for so great a judge, I must be permitted to doubt if there be any such doctrine in the common law," continues Judge Story, who then remarks that the quotation from Perkins and the Hale MSS. were both susceptible of misinterpretation. In defence of himself. 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 the extent the Chancellor meant to go, viz., that the widow was not to be benefited by im- provements made by the alienee. That position does not seem to be denied," &c. There is, then, no conflict of authority as to the rule, its reason or its appli- cation, but merely as to its source ; one learned judge being of opinion that it is derived from the common law, and the other that the common-law authorities do not recognize it. From the quotations from the Year Books, just cited, it would appear that they certainly are in harmony 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. In considering the reason of the distinction thus taken between an increased value arising from improvements, and 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 250 THE MEASURE OP DAMAGES. chaser iu the usual acceptation of the term, it would seem difficult to rest the purchaser's right upon a very satisfactory basis. For in the absence of any fiduciary relation between the parties and of all fraud and concealment, — in other words, where the parties are respectively selling and buying real estate and dealing at arm's length in so doing, — the title is, or is supposed to be, examined by the purchaser and the rule is caveat emptor. And hence, — 1. If the defect of title be undiscovered by the purchaser, it is his own fault. 2. If the defect be known, and he takes a covenant against it, of course he runs the chance of its consequences. 3. If, without examination of the title, he takes covenants in lieu thereof, he equally runs the chances. And in all three of these cases he makes the improvements at his own risk. indeed upon the widow if she was precluded from taking her share of the gradually increasing prosperity of the country;" and the learned Chief Justice finding the cases in the Year Books all to turn upon improvements, " accordingly feels himself at liberty to decide according to what appears to him the reason and the justice of the case." But although we may appreciate the sentiment which suggests a new distinction in the law in favor of such a particular class, it may be remarked that, in strictness of law, what is hardship to a widow is hard- ship to a purchaser ; and there seems no reason why an evicted purchaser should not equally recover the value to which the generally increasing prosperity of the country has raised the estate he has lost. It might be urged that although the rule is a just one which refuses to burden the warrantor with the value of im- provements, as they are the purchaser's own act, yet that as respects increased value from other causes, the principles that prevail in other cases of contract should, if possible, be applied, and as in most instances the value of real estate consists in its individuality, a purchaser should, as nearly as possible, be placed in such a position as to enable him to go into the market and supply his loss. There would be, however, one practical difficulty in the way of allowing for in- creased value which would occur in many cases, viz., that if improvements are to be excluded from the measure of damages, while increase of value from other causes is to be included, it would be often difficult to distinguish between these, since improvements on one place are frequently the cause of improvements on others in the neighborhood, and it would be difficult to say, after the lapse of years, whether the rise in value was caused by the improvements in the vicinity, or by those on the estate itself; and those who have recognized the distinction in the case of the widow's dower, admit that " for practical purposes it is im- possible 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; " Powell v. Manufacturing Co., 3 Mason (C. C. U. S.), 375, per Story, J. THE MEASURE OP DAMAGES. 251 In none of these cases, therefore, would the hardship to the purchaser be so great as might be the hardship to the seller, of being ruined by his purchaser's improvements. And it has been distinctly held that where the position of ven- dor and purchaser is the ordinary one, and the relation of the parties to each other ceases with the execution of the deed, under no circumstances can the. question of the motive of the purchaser enter for the purpose of increasing the damages.^ There would seem, however, to be two exceptions ; the one where the rule, as to the title, of caveat emptor did not, and was not meant to apply, and the other, where the intended improvement of the property forms part of the consideration between the parties ; and to some extent these two classes of cases may at times run into each other. And, first, where the rule, as to the title, of caveat emptor was not meant to apply. This includes that class of cases known as " common leases," in which, it is familiar, the tenant seldom or never examines the title, nor would in general be allowed to do so, and in which, from the earliest times to the present, certain covenants for title have been implied, not only from the words of leasing, but from the mere relation of landlord and tenant.^ It is also familiar that in such leases it is common to stipulate that the premises shall only be used for certain purposes, and sometimes that the tenant shall make certain improvements. Yet until very recently it is not believed that any exception to the rule of the measure of damages was, under such circumstances, allowed in States where, under all the covenants, the damages were limited by the consideration - money. Thus in New York it was formerly considered that the rent re- served was the just equivalent for the use of the premises, and as, by the loss of the estate demised, the rent ceased and the lessee was discharged from its payment, he could recover but nominal dam- ' Phillips u. Eeichert, 17 Ind. 123. It was not so broadly stated in Batohel- der«. Sturgis, 3 Cush. (Mass.) 204, and Wetherbee v. Bennett, 2 Allen (Mass.), 430. Such a question may, under some circumstances, be matter for the jury, for the purpose of determining what was the subject-matter of the contract ; see supra, p. 113. ^ Differing in this respect from the relation of vendor and purchaser ; see infra, Ch. XH. 252 THE MEASURE OP DAMAGES. ages and such mesne profits as he might be liable to pay to the true owner, together with the costs incurred in defending the title,^ and such was also held to be the law in Ohio.^ But it has been recently held in England, and that, too, without particularly drawing a distinction between common leases and those for a long term of years, that the balance between land- lord and tenant was not to be struck by equalizing the payment of the rent and the loss of the term, but that the measure of dam- ages was the value of the term to the lessee. Thus where a lease for ninety-nine years was, after the death of the lessor, adjudged to be void as against the remainder-man, it was held (though the point was not much discussed) that the lessee was entitled to re- cover, from the executors of the lessor, not only the costs of the action brought by the remainder-man together with the mesne profits therein recovered, but also the value of the term lost.^ ' Baldwin v. Munn, 2 Wend, 399 ; Kinney v. Watts, 14 id. 41 ; Moak v. Johnson, 1 Hill, 99 ; Kelly v. Dutch Church, 2 id. 105 (where, however, the covenants were contained in " a lease in fee "). In Kinney v. Watts, the court said : " A vendee, when he purchases, may insist upon special covenants, which will secure to him a perfect indemnity for any expenditures or improvements upon the premises in case of eviction ; but if he takes the general covenants of warranty and quiet enjoyment, he has no right to complain that the law does not afford him full compensation for the loss and injury he has sustained by the eviction. If he resorts to an action upon this covenant, he must take the rule of damages which the law has established for a breach of it. A lease, where no purchase-money is paid by the lessee, does not differ in principle, in this respect, from an ordinary conveyance in fee for a valuable pecuniary consideration. As the lessee has paid no purchase-money, he can recover none back upon eviction ; and in respect to the improvements which he may have made upon the premises and money expended upon them, he stands precisely upon the same footing with a purchaser who recovers nothing for improvements or expenditures, nor can a lessee, upon the ordinary covenant for quiet enjoyment.'' « McAlpin V. Woodruff, 11 Ohio St. R. 180. The lease in that case, how- ever, was for ninety-nine years, which passes the line of what are usually called common leases. In practice, the title is always examined when the term exceeds a few years, and unless there are covenants for improvement, such leases would seem to fall within the general doctrine. 3 Williams ». Burrell, 1 Com. Bench, 402 (infra, Ch. XII.). "As to the mesne profits, and the value of the term lost," said Tindal, C. J., in delivering the opinion of the court, " the liability of the executors is too clear to require discussion. We think also that the defendants are bound to pay the costs of the plaintiff in defending the actions brought by the remainder-man." See this case, supra, pp. 207, 209. THE MEASURE OP DAMAGES. 253 This was followed by the very recent case of Lock v. Furze,^ where the question as to the measure of damages received elaborate argument and consideration. A tenant in possession had obtained from his landlord, in consideration of a premium of £400, a second lease, to commence when his old lease should expire, but before this time arrived the lessor died, and it being discovered that the second lease was an excessive execution of a power, the lessee, upon being notified that it would not be recognized by the par- ties in interest, secured the premises at a much higher rent, and then sued on the covenant for quiet enjoyment contained in the lease. It was said to be " the first time that the point had ever arisen in Westminster Hall," ^ and the court held, first, that the contract being executed by the delivery of the lease, the doctrine of Flureau v. Thornhill ^ did not apply ; secondly, that, as to damages, there was no distinction between the loss of an interesse termini and an actual term in possession ; and, thirdly, that the measure of damages was, besides the X400 premium and the costs of preparing the void lease, the difference in value, as estimated by the jury upon the evidence, between the term pro- fessed to be granted to the plaintiif by his lessor, and the seven years' term which he obtained from the reversioner, — in other words, the value of the term he had lost.* This decision was, on 1 19 Com. Bench (N. S.), 96. 2 Per Keating, J., p. 122. 3 2 W. Bkokst. 1078 (supra, p. 234). * " It has been contended, on the part of the defendant," said Erie, C. J., " that the question is to be dealt with as if, instead of a covenant for quiet enjoy- ment, this had been a contract of sale, and to be governed by the rule of law which prevails in actions by vendee against vendor where the contract goes off by reason of the inability of the latter to make a good title, in which case he pays back the deposit and interest and the expenses to which the vendee has been put in the investigation of the title, and not damages for the loss of the bargain. I am of opinion that that contention is not sustainable. It is a known rule of law as to contracts of sale. It is the settled law, founded upon numerous decided cases ; and I believe that in the case of contracts for the sale of property the common convenience of mankind might justify it. Few vendors, when they offer property for sale, have any notion of the validity of their titles. But I think that rule is confined to contracts of sale, and that a line is to be drawn between a contract for the sale of land and a conveyance of an estate or interest therein. It is clear that, if there be a le'ase of land in possession, and the lessee enters under it, and is ousted or evicted by one against whose acts the lessor covenants, as here, the lessee is entitled to recover all he has lost, that is, the value of the term. It was held in Williams v. Burrell, 1 Common Bench, 254 THE MEASUEE OP DAMAGES. appeal, affirmed in the Exchequer Chamber ,i and has been followed in a late case in the Court of Exchequer.^ In Massachusetts the same doctrine seems to prevail,^ but as, in 402, that a lessee under a void lease, who had been ejected by the suc- cessor of his lessor, was entitled, in an action against the executors for breach of the covenant for quiet enjoyment contained in the lease, to recover the value of the term which he had lost. That is the only decided case on the point which was adduced before us. But it is contended on behalf of the defendant that, as this was a reversionary lease conveying only an interesse termini, the parties stand in the relative position of vendor and vendee, and not of covenantor and covenantee. I am of opinion, however, that that distinction cannot be maintained. The lease conveyed to the plaintiff an interesse termini, — a term of twenty-one years. That interest vested in the plaintiff as a matter of right, so as to be assignable ; and he was in possession. The covenant, therefore, is in perfect analogy to the case of an instrument conveying a present term and a present interest, under which the lessee has entered. That being so, Williams V. Burrell decides that the ordinary rule shall apply, viz., that a party breaking his covenant must pay such damages as are the proximate consequences of his breach of covenant." A number of American authorities were quoted in the arguments and opinion, but the court considered their result as unsatis- factory. ' Lock V. Furze, Law Rep. 1 Com. Pleas, 441. The reasons, however, are hardly as conclusive as those given in the court below. ^ Eolph V. Crouch, Law Rep. 3 Ex. 44. The defendant leased certain premises to the plaintiff for seventeen years, with a covenant for quiet enjoyment, and the latter was subsequently evicted by one claiming under a paramount title, and it was held, in an action on the covenant, that the plaintiff was entitled to recover compensation for the loss of the land, together with the costs and expenses he had paid in defending his possession against the paramount title. Kelly, C. B., in delivering his judgment, said : "Secondly, with regard to the sum of £102, given for compensation for the loss of the land. It appears that the plaintiff had taken a lease of seventeen years from the defendant, with a covenant for quiet enjoyment during the term. The land which was leased has been taken away from him, and he has lost what it was and might reasonably have been ex- pected to be worth to him. According to his own evidence, the land was worth £10 a year, and there seems no reason to doubt that he had made a fair estimate of the loss he had sustained, and that being so, the amount given him by the jury is, in my opinion, not excessive. Then, lastly, as to the conservatory. The plaintiff, relying on the performance by the defendant of his covenant, erected it for the better and more conveniently carrying on of his trade as a florist. He has lost the use of it, and I think that he is entitled to the sum given him by the jury for that loss." ' Dexter v. Manley, 4 Cush. (Mass.) 14. The plaintiff had been the owner of a manufactory for making pails, which, together with all the tools and ma- chinery therein, he sold to the defendant, who thereupon leased the premises to the plaintiff for a short term, reserving the privilege of running a turning- THE MEASURE OP DAMAGES. 255 that State, the measure of damages upon a breach of the covenant for quiet enjoyment is the value of the land at the time of eviction, the rule could hardly be otherwise. And in a very recent case in New York, the Court of Appeals, overruling all previous decisions to the contrary,^ rested the case upon the authority of Lock v. Furze,^ and held that the true rule of damages was the value of the unexpired term over and above the rent reserved by the terms of the lease.^ lathe and saw in the middle room, and instead of other rent, the plaintiff agreed to do certain painting oh the premises. The breach assigned of the implied covenant for quiet enjoyment (as to which see supra, Ch. XII.) was that the defendant had so used the machinery in the reserved room as to hinder the plaintiff in the manufacture of pails, and it was proved that, after the lease, the defendant commenced in this room the manufacture of laths, and that the sawing of the blocks of wood for that purpose rendered the machinery in the other parts of the house so unsteady as to prevent the turning of pails at all. The court below instructed the jury that where the lessee was entirely deprived of the use of the property leased, the rule of damages was the value of the lease, or what the property would fairly rent for ; that on this subject, the rent reserved, the amount of the business and the profits of it, were proper evidence to be con- sidered in estimating the damages ; that there being only a partial disturbance of the plaintiff in the enjoyment of the lease, he was entitled only to a just pro- portion of the value of the lease according to the extent of the injury, and that the jury should take into consideration the fact that the property was leased with the restriction expressed ; and, upon writ of error, this charge was held to be correct. ' Cited ubi supra, p. 252. ^ The court was not then aware of the decision in Rolph v. Crouch. ^ Mack V. Patchin, 42 New York, 167. The defendant leased a warehouse to the plaintiff, on which there were several mortgages . One of these was after- wards foreclosed and the premises sold, and, upon this action being brought upon the implied covenant in the lease, the court below charged that the measure of damages was the value of the unexpired term of the lease at the time of the evic- tion, over and above the rent reserved by its terms. This ruling was sustained in the Superior Court (Mack v. Patchin, 29 Howard's Practice Rep. 20) and in the Court of Appeals. In the opinions in the latter court, Earl, C. J., decided the case upon the ground of want of good faith of the lessor, but Darwin Smith, J., placed his decision upon the broad doctrine that a lessee who had been ejected by paramount title was entitled to recover, upon a covenant for quiet enjoyment, the value of the term which he had lost. "In analogy with the rule applied to purchasers of land in actions upon the covenant for quiet enjoyment in leases, the same rule has been applied to lessees, so far as it was applicable. As no consideration is paid in such case, the rent reserved has been regarded as a just equivalent for the demised premises, and as, in case of eviction, the rent ceases, and the lessee is discharged from its payment, he recovers nominal damages, and for such mesne profits as he is liable to pay the 256 THE MEASURE OP DAMAGES. Secondly, where, even in case of a sale, the intended improve- ment of the property forms part of the consideration between the parties. Thus in certain parts of the United States, unimproved land is frequently conveyed to a purchaser in fee, reserving to the vendor, as tlie entire consideration, an annual fee farm or ground rent, which represents the value of the land, the purchaser covenanting that he will, for the purpose of securing to the vendor the rent so reserved, erect certain stipulated improvements.-' In this class of cases, the improvements being directly withyi the meaning 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 title or incumbrance created by the vendor, the damages should not be 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 con- sequence of his own act.^ true owner, and any costs he may have been compelled to pay in defence of his title. But this rule has not been very satisfactory to the courts in this country, and it has been relaxed or modified more or less to meet the injustice done by it to lessees in particular cases ; and in England the rule is repudiated in two well- considered cases of William v, Burrell and Lock v. Furze, supra. And it seems that the case of Trull u. Granger, 4 Selden, 115, in principle commits this court to the same doctrine. It is true that in that case the plaintiff was not evicted, having never been in actual possession ; but his landlord virtually expelled him from the demised premises by leasing them to another party and putting him in pos- session before the demise of the plaintiif took effect. The plaintiff recovered the value of his term and this court affirmed the judgment." It should be remarked that both in Mack v. Patchin and Lock ». Furze the question of the measure of damages upon a breach of a covenant for title was, both in the arguments and in the opinions, to some extent blended with that upon a breach of an executory contract, as to which there has been much discus- sion and difference of decision. ' As is the case in many parts of Pennsylvania, particularly in the cities of Philadelphia, Lancaster and Pittsburg, and, it is believed, in certain parts of New York. " Which would be merely the rent reserved ; the loss of the land by para- mount title would be, of course, a, suspension of the rent, as in the case of land- lord and tenant, but beyond this the purchaser would lose all the improvements which, by the very terms of the sale, he had erected. ' There is no direct authority for this suggestion, but since it was made in the THE MEASURE OF DAMAGES. 257 The question of the measure of damages relatively to increased value of the land having been thus considered, we return to the class of cases which decide that upon the covenants for seisin and of right to convey, the damages are measured by the consideration named in the deed. This has been taken from analogy to the common-law warranty, under which, as has been seen,i the recom- pense in value was as of the time of the warranty made, and this value has since been deemed to be best fixed by the expressed con- sideration, as that was the agreement of the parties at the time of sale.'* Neither the vendor nor the purchaser is, however, according to the weight of authority, concluded by the consideration clause. It is true that in England there have been cases which are con- sidered to decide that " when the damages are to be calculated upon the basis of the purchase-money, its amount, if stated in the last edition of this treatise, the following has been said by a late English writer : " I conceive that the doctrine laid down by Kent, C. J., in Staats v. Ten Eyck, 3 Caines (N. Y.), Ill, is clearly the equitable rule, where the improvements arise from causes of an entirely collateral nature, such as the growth of a town, the formation of a railway, or the like. The occupier has had all the benefit of this increased value, so long as it lasted, without paying any thing for it. Even supposing that he had sold again after the land had risen in value, and been forced to pay back to his purchaser according to that additional value, still he would be only repaying money which he had actually received, and would on the same principle have a right to call on his vendor to return the sum which he had received, and no more. But the same obvious equity seems by no means to exist when the additional value arises from the outlay of the plaintiff's own capital upon the land. No doubt cases might be put in which a claim for damages on this ac- count would be clearly inadmissible ; as, for instance, if a person bought a moor or a mountain for shooting over, and chose to reclaim the one, or build a mansion with pleasure-grounds upon the other. But suppose he purchased building ground, at so much per foot, in London or Manchester, for the express object of building, ought he not to be repaid for money laid out in this way, the benefit of which is seized by a stranger ? In this case the damage incurred is the direct result of the breach of contract, and a result which must have been contemplated by the party entering into the covenant. Probably this will be found to be the true ground of distinction, and that every case must be decided upon its own merits, accord- ing as the improvements were the fair consequence of the contract of sale or not;" Mayne on Damages (2d ed.), 147; see also Dart on Vendors (4th ed.), 726. ' Supra, p. 233. = Marston v. Hobbs, 2 Mass. 433; Smith v. Strong, 14 Pick. (Mass.), 128; Tapley v. Lebeaume, 1 Mo. 550; Cummins v. Kennedy, 3 Litt. (Ky.) 118; Wilson V. Forbes, 2 Dev. (N. C.) 30. 17 258 THE MEASURE OP DAMAGES. deed of conveyance, cannot be contradicted by parol evidence," ^ but even there, such a rule can hardly be stated as having a general application.^ On this side of the Atlantic it may be considered as settled that although (apart from question of fraud) evidence to contradict or vary the consideration clause is inadmissible, if offered to defeat the conveyance, as such (as for example by showing it void be- cause of want of consideration^), yet that for any purpose short of affecting the title, tliis clause is not conclusive, but only prima facie evidence of the amount therein uamed.^ ' Mayne on Damages, 100. Rowntree v. Jacob, 2 Taunton, 141 ; Lampon v. Corke, 5 Barn. & Aid. 606 ; Baker v. Dewey, 1 Barn. & Cress. 704. None of these cases, however, directly support the proposition. ' Thus in Rolph u. Crouch, Law Rep. 3 Excheq. 44, cited supra, p. 254, there were two distinct leases of adjoining premises, one at a peppercorn rent, and the other at £80, and the tenant having been evicted from both, the court, upon the question of damages, considered that though the rents were separated in the lease, the two properties were let together, and that the value of the one was considered in the rent paid for the other, it being in fact one transaction. = As in Wilt v. Franklin, 1 Bin. (Pa.) 602 ; Farrington v. Barr, 36 N. H. 89 ; Hurn v. Soper, 6 Harr. & Johns. (Md.) 276 ; Betts v. Union Bank, 1 Harr. & Gill (Md.), 175; Claggett v. Hall, 9 Gill & Johns. (Md.) 91 ; Cole i>. Albers, 1 Gill (Md.), 428 ; Elysville Man. Co. v. Okisko Co., 1 Maryland Ch. Decis. 892 ; Henderson v. Henderson, 13 Mo. 152. In the case last cited it was held that evidence was not admissible in an action brought by a son against his father's executors on a covenant against incumbrances contained in a deed given by the latter to the former, 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 evidence of fraud, and in Parke v. Chad- wick, 8 Watts & Serg. (Pa.) 96, the law was held to be otherwise, upon facts very similar to those in Henderson v. Henderson. " BuUard u. Briggs, 7 Pick. (Mass.) 533; Wade v. Merwin, 11 id. 288 ; Clapp V. Tirrell, 20 Pick. (Mass.) 247 ; McCrea v. Purmort, 16 Wend. (N. Y.) 460 ; Burbankc. Gould, 15 Me. 118 ; Meeker v. Meeker, 16 Conn. 883 ; Beach v. Pack- ard, 10 Vt. 96 ; Bingham v. Weiderwax, 1 Corastock (N. Y.), 509 ; Watson v. Blaine, 12 Serg. & Rawle, 131 ; Bolton v. Johns, 5 Barr (Pa.), 145 ; Pligdon v. Thomas, 1 Harr. & Gill (Md.), 139 ; Wolfe v. Hauver, 1 Gill (Md.), 84 ; Duval r.Bibb, 4E[en. «&Munford (Va.), 113; Harvey u. Alexander, 1 Rand. (Va.) 219 ; Wilson V. Shelton, 9 Leigh (Va.), 343; Curry u. Lyles, 2 Hill (S. C), 404; Jones V. Ward, 10 Yerger (Tenn.), 160 ; Park v. Cheek, 2 Head (Tenn.), 451 ; Garrett v. Stuart, 1 McCord (S. C), 514 ; GuUey v. Grubbs, 1 J. J. Marsh. (Ky.) 388 ; Hartley v. McAnulty, 4 Yeates (Pa.), 96 ; Hayden ». Mentzer, 10 Serg. & Rawle (Pa.), 329 ; Dexter v. Manley, 4 Cush. (Mass.) 26 ; Jack v. Dougherty, 3 Watts (Pa.), 151, where the language of Parker, C. J., in BuUard v. Briggs, is THE MEASURE OP DAMAGES. 259 Hence, it is held that in an action on the covenant for seisin, parol evidence is admissible on the part of the plaintiff, to show the actual consideration to have been greater than that expressed in the deed, for the purpose of increasing the damages ; ^ and on the other hand equally admissible on the part of the defendant to show the consideration less, for the purpose of diminishing them.^ So, approvingly quoted; Monahan v. Colgin, 4 Watts (Pa.), 486; Strawbridge v. Cartledge, 7 Watts & Serg. (Pa.) 399. In other words, the only efifect of the consideration clause is to estop the grantor from alleging that the deed was executed without consideration, and that for every other purpose it is open to explanation, since the origin and purpose of the aclsnowledgment in a deed were merely to prevent a resulting trust to the grantor, the clause being merely formal or nominal, .and not designed to fix conclusively the amount either paid or to be paid; Belden v. Seymour, 8 Conn. 812. There are some earlier cases, and even some dicta in later ones, which appear to lean the other way (Schermerhorn ».Vanderhayden, 1 Johns. (N.T.) 139 ; Howes V. Barker, 3 id. 508 ; Maigley v. Hauer, 7 id. 342 ; Steele v. Adams, 1 Greenl. (Me.) 1; Clarke t). McAnulty, 3 Serg. &Kawle, 867), buttheweight of American authority has settled the principle as stated in the text. Bronson, J., in Greenvault V. Davis, 4 Hill (N.Y.), 643, seemed to be of opinion that when the deed contained no covenants but those for seisin or warranty, the consideration was inserted for the purpose of fixing the amount of damages in case of a loss of the estate ; "at least such is my present impression, though my brethren are inclined to a diflferent conclusion. But it is not now necessary to decide the question." " I submit, how- ever,'' says Mr. Sedgwick, in quoting this passage, "that any distinction as to the purpose for which the parol proof is admitted cannot be maintained. If good for one end, it must be good as to all. If a fact be established, all its legitimate results must follow, whether as to riglits or remedies ; and in the sister States of the Union it seems to be generally held that parol proof is admissible as to the quantum of consideration paid ; " Sedgwick on Damages, 178. These reniarks must be taken subject to the qualification above referred to, that such evidence is inadmissible if it goes to destroy the efficacy of the deed as a conveyance. ' Belden v. Seymour, 8 Conn. 304 ; Dexter v. Manley, 4 Cash. (Mass.) 26 ; Guinette v. Chouteau, 34 Mo. 154. " Morse v. Shattuck, 4 N. H. 229; Harlow u. Thomas, 15 Pick. 70; Bingham v. Weiderwax, 1 Comst. (N. Y.) 514 ; Swafford v. Whipple, 3 G. Greene (Iowa), 267; Martin v. Gordon, 24 Ga. 635; Cox v. Henry, 8 Casey (Pa.), 19; Moore v. McKie, 5 Smedes & Marsh. (Miss.) 288; Wil- liamson V. Test, 24 Iowa, 189, where the lot was paid for by a watch. In Yelton V. Hawkins, 2 J. J. Marsh. (Ky.) 2, it seems to have been thought that where a consideration had been by mistake erroneously inserted as £56, instead of £43, evidence would not have been admissible to prove this as a de- fence at law, but that relief could be had in equity. In Coger v. McGee, 2 Bibb (Ky.), 321, equity interfered to reform a conveyance which contained a limited covenant of warranty, upon evidence that the grantee, at the time of its execu- 260 THE MEASURE OP DAMAGES. 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 it,i though it is clear that such evidence is admissible solely in mitiga- tion of damages, and not for the purpose of negativing a breach of the covenant ; ^ and where, in a recent case, the defendant offered to prove that the plaintiff agreed to take the premises subject to a certain mortgage, which formed the whole consideration of the conveyance, this evidence was held to have been properly rejected.^ tion, objected to such a covenant, but yielded upon being assured by the drafts- man and others that it meant an agreement to refund the consideration-money and interest, which was a singular view to have taken of the peculiarity of a lim- ited covenant. ■ Leland v. Stone, 16 Mass. 463 ; Barns v. Learned, 5 N. H. 264 ; Nutting V. Herbert, 35 N. H. 127. ^ Nutting V. Herbert, 35 N. H. 127. " The testimony could not be received to contradict or vary the deed by showing that the house and land owned and occupied by Merrill were not intended or understood to be included in the conveyance, for the purpose and with the result of negativing any breach of the covenants of seisin and good right to convey, for which, in part at least, they seem to have been offered. But they were admissible on the question of dam- ages. . . . Whatever evidence, therefore, tended to show the consideration actually paid for the premises before granted to Merrill, or to show that no con- sideration was paid for them, for the reason that it was known and understood by the parties that they were not to pass by the conveyance, was competent and admissible on the question of damages, although inadmissible upon the issue raised by the plea of omnia performant. If the jury should find that nothing was paid for the Merrill place, although it is clearly included within the deed, but that both parties knew and understood it to have been previously sold, that, in fatt, it was included in the deed by mistake or through inadvertence, the plaiu- tiff would be entitled to nominal damages only ; " per Fowler, J. ' Estabrook u. Smith, 6 Gray (Mass.), 578. " If, as the defendant offered to prove at the trial, the plaintiff ' agreed to take the premises subject to said mortgage,' then that agreement should have appeared in some way in the deed, or in some other written instrument. It was as easy to except the claim on the outstanding mortgage from the covenant of warranty as from the covenant against incumbrances, if such was the understanding of the parties. But nothing is clearer than that the parol evidence which was offered to control the covenant in the deed was inadmissible." The point that parol evidence is inadmissible to prove that a certain incumbrance, not expressly excepted from the operation of the covenants, was agreed to be so considered by the parties at the time, was also decided in Townsend v. Weld, 8 Mass. 146 ; Porter v. Noyes, 2 Greenl. (Me.) 22 ; Donnell v. Thompson, 1 Fairf. (Me.) 177 ; Collingwood v. Irwin, 3 Watts (Pa.), 309; Suydam v. Jones, 10 Wend. (N. Y.) 184; see supra, Ch. IV. p. 117 dseq. THE MEASURE OF DAMAGES. . 261 111 cases where there is no consideration named in the deed, the measure of damages must be obtained from other evidence as to the value of the land ; ^ and where, as must sometimes be the case, the consideration does not move directly from the grantee to the grantor, but the conveyance of the land is the result of a negotia- tion in which a third party is concerned, the real consideration which moved from the grantee — that which he actually parted with in order to acquire the title of the gi-antor — must be sought from all the circumstances of the case, and the damages measured accordingly.^ ' Smith V. Strong, 14 Pick. (Mass.) 128. It will be remembered that the rem- edy upon the ancient warranty was the recovery of another feud of equal value, and it was in analogy to this that when a pecuniary recompense was substituted, the consideration named in the deed was taken to be prima facie evidence of the value of the land to the purchaser. ^ A good illustration of this will be found in Byrnes v. Rich, 5 Gray (Mass.), 618. "The rule of damages," said Shaw, C. J., who delivered the opinion of the court, ' ' is perfectly well settled in this Commonwealth ; it is the amount of the consideration actually paid by the grantee to the grantor with interest from the time of the payment. We say paid by the grantee to the grantor, which is the most common case. But there may be anomalous cases, especially where it is not a direct negotiation between the parties to the deed ; but where, in a nego- tiation between two, there is a stipulation by one with the other, upon a certain consideration, to execute a deed and convey certain land to a third person, and a deed is given accordingly. Such appears by the evidence to have been the present case. The plaintiff agreed to receive of one Leighton a certain lot of land in Melrose, in full satisfaction and discharge of a debt. Leighton then agreed with the defendant to purchase of him the same land, and then requested the defendant to make the deed direct to the plaintiff, with warranty ; he executed it accordingly, upon a large nominal consideration expressed, and handed it to Leighton, who delivered it to the plaintiff in satisfaction of his debt. Then what was the actual consideration as 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 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 to Leighton, as the consideration to be by him paid for the land. That may have been a security of little value ; no evidence of its value was given ; and, besides, to that part of the transaction the defendant was a stranger. It seems, therefore, to be a case to which the ordinary general rule cannot apply, and which must be determined according to its particular circum- stances upon the general principle applicable to breaches of contracts ; the party shall recover a sum in damages, which will be a compensation for his loss. The case is very similar in principle, and considerably so in its facts, to that of Smith V. Strong, 14 Pick. (Mass.) 128. It was there laid down that, in such case, the 262 THE MEASURE OP DAMAGES. The essential difference as to the right of action and the plead ings which exists between a covenant for seisin and a covenant for quiet enjoyment has already been pointed out. Upon the former, it is considered that the covenant is broken as soon as made, that the right of action accrues at once, and in declaring for its breach it is sufficient to negative the words of the covenant.^ Upon the latter, no breach accrues until an eviction, actual or con- structive, and in declaring the plaintiff miist set forth the manner of the breach with more or less particularity, and the damages are, of course, within the rules to be hereafter considered, measured, as in other cases, by the loss actually sustained.^ But it may well be that although a covenant for seisin may be technically broken, and, upon suit brought upon it, the right to damages upon the pleadings and proof may be perfect, yet that so far as actual loss to the purchaser is concerned, he may be in the same condition as when he first received the covenant. The question of how the damages may then be measured has, by some, been considered to be an embarrassing one.^ On the one hand it may be urged that it would be obviously inequitable that the purchaser should be en- titled to have his damages measured by the consideration-money, measure of damages is the consideration paid, with interest from the date of the deed; but if the consideration 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 the measure of damages. It appears to us that this rule will afford indemnity in the present case. If the failure of title extended to the whole of the land, then the entire value of the land is to be the measure ; if to a part only, and the plaintiff does not tender a reconveyance of the part upon which the conveyance operated to give title to the grantee, then the value of the part, the title to which failed, with interest, will be taken as the measure of damages.'' See also the case of Lawless v. Collier, 19 Mo. 480, referred to infra. ' Supra, p. 82. ^ Supra, p. 192. ^ It was remarked in Dane's Abridgment (vol. iv. p. 340), "In respect to the amount of damages, if the grantee has been turned out of, and lost the land, there is no question but that the said consideration and interest is the true amount ; but if he remains in possession of the land, and has not been ousted or evicted, it is an important question, if he shall recover his said consideration- money and interest, while he so retains the land." This is the difficulty which has been suggested as the cause of holding, in some of the New England States, that the covenant for seisin is not broken at all if an actual seisin had passed to the purchaser; see supra, p. 56 etseq. 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 seisin has been transferred to him, even though he should afterwards lose the land. THE MEASURE OF DAMAGES. 263 and, while receiving tliem, still retain the land for whose loss they were intended as an equivalent,^ and on the other, that if the breach of the covenant is, as the American cases say, " single, entire, and perfect in the first instance," ^ and only nominal dam- ages are given because there has been no actual loss, the covenant has spent its force, for such a recovery could, of course, be pleaded in bar of any subsequent action, and whatever difference, therefore, there may be, in theory, between a covenant for seisin and a cove- nant for quiet enjoyment, there is little in practice. ' These remarks were quoted with approbation in Nosier v. Hunt, 18 Iowa, 217, as also in other cases, but their application has been generally limited to cases where the pur-chaser has set up the defence of the broken covenant in a suit by his grantor to recover unpaid money ; Small v. Reeves, 14 Ind. 164 ; Hacker V. Blake, 17 Ind. 97 ; and, as to this, as has been already said, the rule is almost a uniform one, that if no actual damage has happened, the purchaser must pay the purchase-money and rely upon his covenant for future protection. And it is certainly better to lean towards this extreme, than to open such a lati- tude of defence and temptation to set up outstanding titles, to which a contrary course of decision would tend. Cases in which a contrary doctrine is asserted will, on examination, be found to have been decided not so much upon general principles as the application of local legislation. Thus, in the recent case of Aierly v. Vilas, 21 Wis. 109, it was said : " Before the code, it was well settled that, in suits brought to foreclose mortgages for the purchase-money, in which the mortgagor, being in possession of the lands, set up a partial failure of title as a defence, without averring an actual eviction or an action of ejectment brought, or that he was in any way disturbed in his possession, the court would not interfere, but leave him to his action at law ; Van Waggoner v. M'Ewen, 1 Green Ch. Rep. (N. J.) 412 ; Abbott v. Allen, 2 Johns. Ch. (N. Y.) 519 ; Simpson v. Hawkins, 1 Dana (Ky.), 305; Rawie on Covenants for Title (3d ed.), 676-686. Courts of equity declined to go into such defences, because titles to land could better be tried by actions at law, and the damages were often unliquidated and not the subject of set-off, and also because the posses- sion of the defendant being undisturbed must ripen into a perfect title. But the code allows a counter claim to be set up in an answer to a foreclosure action as well as in others. It is no objection to such counter claim or claims that the damages are unliquidated, or that the claims are legal, or equitable, or both; for claim, legal or equitable, for liquidated and unliquidated damages on contract, may all be set up in the same answer. The defendant, who sets up by way of counter claim a cause of action based upon the covenants in a deed, is entitled to recover the same damages as he would have recovered if he had brought a sepa- rate action on those covenants. If he declares upon the covenant of seisin and alleges breaches, it is no defence to his claim that he is in undisturbed possession of the premises. He has a right to recover his actual damages, whatever they may be, the same as in a suit at law before the code ; Walker v. Wilson, 13 Wis. 622 ; Hall v. Gale, 14 Wis. 64 ; " Noonan v. Ilsley, 21 Wis. 138 ; s. c. 22 Wis. 27. * See infra, Ch. X. 264 THE MBASUEB OP DAMAGES. In England, this difficulty does not occur to the same extent, as the cases, perhaps rather forcing the conclusion, consider the cove- nant for seisin as a continuing one, on which recoveries can suc- cessively be had by the purchaser or his assigns as often as damage is sustained.^ If we go to the source of the covenants for title, the common- law warranty, we find that it assured not only the consequences of a defective title, but the title itself, and that there were peculiar provisions, unknown to the modern system of law, by which the rights of both parties — he who gave and he who received the warranty — were sought to be preserved.^ And the very fact that the modern covenants, which were certainly meant to be at least as effective as the warranty which they superseded, were divided as they were, into covenants whicli should assure the title, and ' See infra, Ch. X. But even in England the question would seem to be con- sidered as not free from difBculty. Thus a late writer says: "Actions maybe brought for breach of the covenant for title and authority to convey, before any eviction or disturbance of the plaintiff has taken place ; Kingdon v. Nettle, 4 M. & S. 53. What ought to be the amount of damages under such circum- stances? It is plain that the conveyance may, notwithstanding the defect of title, pass something to the covenantee, or it may in fact pass nothing at all. Where the plaintiff has never got into possession of the land, and in consequence of the want of title never can, the above [the consideration-money] is clearly the proper measure of damages. The action on the covenant then comes in place of an action for money had and received, on failure of consideration; Baber u. Harris, 9 Adolph. & Ellis, 632. But it may be doubted whether the same rule would hold good, as a matter of law, where the plaintiff had got into possession, and, in fact, continued so still. A case may be easily imagined, and indeed con- stantly occurs, in which there is such a defect in the title as makes it strictly unsaleable, though there is little or no chance of the occupant ever being turned out. In such a case it would not be fair to allow the whole purchase-money to be recovered. The vendor has not given a saleable title as he engaged, but he has given up his own possessory title, which was worth something to him, and is worth something to the purchaser. It is clear that if he were forced to refund the entire purchase-money, the estate would not revert to him, because, as against him, the title would still be in his vendee. The covenant, it will be ob- served, is a continuing one; Kingdon v. Nottle; and, therefore, may be sued upon from time to time, according as fresh damage arises. The fair rule then would be to give the plaintiff such damages as will compensate him for the de- fective quality of his title. This was the course adopted in the case last cited, where the special damage laid was that the lands were thereby of less value to the owner, and that he was hindered from selling them so advantageously; " Mayne on Damages (2d ed.), 142. ' See supra, Ch. I. p. 13, as to the judgment^™ loco et tempore, &c. THE MEASURE OF DAMAGES. 265 covenants which should indemnify against loss, would seem to show that their difference in effect to a purchaser was meant to be real rather than nominal. If, indeed, the possession of the purchaser has remained undis- turbed until it has ripened, under the statute of Limitations, into a valid title, it has been held that although the covenant may have been technically broken, yet only nominal damages can be recov- ered.i Apart from this, taking the ordinary case of a covenant for seisin technically broken when it was made, and the action brought upon it while the possession was still undisturbed, it is well settled that a recovery even of nominal damages can , as has been said, be pleaded in bar of any subsequent action.^ Hence, under a rule which would allow only nominal damages while the possession is undisturbed, the only practical difference between the covenant for seisin and a covenant for quiet enjoyment would be that, while in an action on the latter it would not, as has been seen, be con- sidered an eviction for the covenantee to purchase the paramount title unless it had been adversarily asserted against him,^ yet in an • Wilson V. Forbes, 2 Dev. (N. C.) 30, approved in Cowan v. Silliman, did. 47; Garfield u. Williams, 2 Vt. 328; Somerville v. Hamilton, 4 Wheat. (U. S.) 230 ; Pate ». Mitchell, 23 Ark. 691, citing the text. ' The general principles of the law of estoppel, as applied to judgments, were clearly stated by Lord EUenborough in Outram v. Morewood, 3 East, 346 ; and see Judge Hare's note to the Duchess of Kingston's case, 2 Smith's Leading Cases, 787 (7th ed.). In Markham v. Middleton, 2 Strange, 1259, the defendant had suffered judgment to go by default, but when the plaintiff went before the jury of inquiry for damages, he failed in his proof, and the damages were assessed at one penny. Under the circumstances of the case, the court ordered a new writ of inquiry on payment of costs ; but, it is evident, that in another action the plaintiff would have been barred by that verdict if it had stood ; Seddon v. Tutop, 6 Term, 609 ; Godson v. Smith, 2 J. B. Moore, 162. The point arose directly in Donnell v. Thompson, 1 Fairf. (Me.) 174, where it was said: "The action on the covenant of freedom from incumbrance was prematurely brought, and nothing but nominal damages were recovered. Still it is admitted that the judgment in that action would be a good bar to a second action on the same covenant for the same breach.'' It was, however, decided in that case that the plaintiff was enti- ^tled, under 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 covenants ; Nosier v. Hunt, 18 Iowa, 217, is to the same effect. The plaintiff's proper course, where he perceives that his action must result in nominal damages, is to discontinue or suffer a non- suit, which will not, of course, affect his right to a subsequent recovery ; Harris V. Newell, 8 Mass. 263. * Supra, p. 148. 266 THE MEASURE OF DAMAGES. action on the covenant for seisin, the adversary assertion of the title would be immaterial, provided it were really a paramount title, and the price hona fide paid for it did not exceed the consid- eration-money. The question, therefore, resolves itself into whether a purchaser has the right, by an action on the covenant for seisin, to consider the contract as rescinded, whereby he can recover back his entire consideration-money, and this question involves others of some nicety of distinction. There is a class of cases which hold that where a conveyance is made, containing certain of the covenants for title, and the vendor afterwards acquires an estate which is within the scope of those covenants, such after-acquired estate immediately enures to the purchaser or his assigns, by the operation of the doctrine of estoppel. In another part of this treatise it is attempted to be shown that this doctrine is both unsound in principle and, in its broad and general application, unjust in its practical results.^ But however this may be, the doctrine itself, though now perhaps upon its wane, was firmly established in many of our States. As its consequence, it has been held, in a few cases, that although the purchaser's covenant for seisin may be broken, yet if the vendor have subsequently acquired the paramount title, which, by virtue of other covenants in the deed, enures by estoppel to the purchaser, this may be given in evidence in mitigation of damages, whose amount will then be but nominal ; ^ in other ' Infra, Ch. XI. ' Baxter v. Bradbury, 20 Me. 260 (see the remarks on this case, infra, Ch. XI.) ; Reese v. Smith, 12 Mo. 344 ; King v. Gilson, 32 111. 355. This was thus plainly stated in Burke v. Beveridge, 15 Minn. 208: "Though by the breach of the covenants in question [for seisin and good right to convey], as thereby the title wholly fails, the law restores to the plaintiff the consideration paid, with interest ; yet if, by virtue of another covenant in the same deed, also intended to secure to her the subject-matter of the conveyance, she has obtained that seisin, it would be altogether inequitable that she should have that seisin, and also the consideration paid for it ; that is to say, that if there exist facts which would render inequitable the application of the rule that such covenants, • if broken at all, are broken as soon as made, and the purchaser's right of action to recover back the consideration is then perfect, such facts are to be taken into consideration by the jury, not as a bar to the action, but in mitigation of dam- ages. The burden, however, is on the defendant to show the existence of such facts." This rule has been sometimes sought to be carried too far, and to entitle the defendant to a verdict. Thus, in McCarty v. Leggett, 3 Hill (N. Y.), 134, THE MEASURE OP DAMAGES. 267 words, such a course of decision fastens upon the purchaser the subsequently acquired title nolens volens, depriving him of the option whether to accept it or to fall back upon his covenants ; ^ or, to put it in another form, it has virtually the same effect as an injunction restraining him from proceeding at law upon the cove- nants.^ From this it is an easy transition to hold that even although the after-acquired title may not, from peculiar circumstances, ab- solutely pass from the vendor and enure to the purchaser under the operation of estoppel as thus applied, yet if the vendor can, at any time before recovery and payment of damages upon the cove- nant, procure the outstanding title and tender it to the purchaser, equity will compel him to receive it, and enjoin him from obtain- ing his damages, and such was actually the decision in a rather recent case in Missouri.^ the defendant 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 seisin, and a verdict was therefore ordered for the defendant. But it was held by the Supreme Court that however these facts might have been properly admissible in mitigation of damages, still that the purchaser has a right to recover at least nominal damages, since the covenant was technically broken at the time of suit brought, and the law was so considered in King v. Gilson, supra. ' In Kincaid v. Brittain, 5 Sneed (Tenn.), 123, it was said: "If the failure of title be only as to part of the land, or if the purchaser has himself extin- guished the paramount title, or if his actual possession has been of such a character as to make the title valid under the statute of Limitations, or if, for other cause, the breach be merely a technical one, the purchaser will not be entitled to have the damages measured by the consideration-money and interest. Such is the proper measure of damages only when there is an entire failure of title, or where the purchaser ha^ an election to treat it as such." But the author- ities do not seem to have determined exactly the cases in which the right of elec- tion arises, and in the class to be presently considered such a right is entirely taken away. " Thus, in Baxter v. Bradbury, 20 Me. 262, it was argued for the plaintiff that the title by estoppel could not enure to his benefit without his consent, — that he was not compelled to receive the title ; but the court held that, " by taking a general covenant of warranty, he not only assented to, but secured and made available to himself, all the legal consequences resulting from that covenant. Having therefore under his deed, before the commencement of the action, acquired the seisin which it was the object of both covenants to assure, he could be enti- tled to but nominal damages." 3 Reese v. Smith, 12 Mo. 344. The purchaser, who had received a convey- ance with covenants for seisin, of good right to convey, against incumbrances, 268 THE MEASURE OF DAMAGES. It has, how^ever, been frequently held in courts of law that the purchaser's right to recover liis damages cannot be affected by the and of warranty, recovered after the death of his vendor a verdict for damages, measured by the consideration-money, against his widow, who was his devisee. The latter bought in the outstanding title, whose existence had caused the breach of the covenant for seisin, and tendered it to the purchaser, who refused to accept it, because his damages would be, owing to the depreciation of the property, greater than the value of the land. (The after-acquired title did not, it should be observed, actually pass to the purchaser, because the court held that the widow was not bound by the estoppel, she having been under coverture at the time of joining with the husband in the covenant.) A bill having been filed to enjoin the judgment and compel the purchaser to accept the after-acquired title, the court below decreed accordingly, and this was affirmed on appeal to the Su- preme Court. " It is a mistake to suppose," said Napton, J., who delivered the opinion of that court, " that the suit at law upon the covenant of seisin is to be regarded as a rescission or disafiirmance of the contract by Reese. Where a vendee has not received a deed, and sues upon the contract by which he is enti- tled to one, for the recovery of his purchase-money, such suit is a disaffirmance of the contract, and it is in such cases that the authority of a court of equity to interfere is rarely exercised. But the suit at law in this case was upon a covenant in the conveyance, and a recovery in that suit would not prevent the covenantee from suing the next day upon any other covenant in the same deed. He is enti- tled to the benefit of all the covenants, and although it may be that a court of law would not permit him, after he had recovered upon one covenant the whole pur- chase-money and interest, to get more than nominal damages upon another, yet this will not affect his legal right to the benefits of all the covenants. " The bill of the complainant has two objects in view: 1st, To compel the defendant to receive a conveyance ; and, 2d, To prevent the defendant, after thus recovering the title, from collecting his judgment at law. " If the court can compel the defendant to receive the title, it needs no argu- ment to show that the defendant, after receiving the title, should not be permitted to enjoy the estate under an indefeasible title, and at the same time retain the purchase-money. Had the title been acquired by Smith in his lifetime, there is no doubt but that title would have passed from Smith to his vendee, Reese, and that if this had taken place before the trial of the action on the covenant, it would have restricted the plaintiff to nominal damages. It is said that a court of equity cannot compel a covenantee to accept performance in lieu of damages, after the covenantee has elected to take the latter. But a court of equity, in exercising such a power, would only be following the law ; and if the covenantor acquires his title after the suit at law has terminated, what could prevent a court of equity from taking notice of what the silent operation of our statute of 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 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 chau"e in the situation of the parties. " The fact that this property has very much depreciated in value is the strong- THE MEASURE OF DAMAGES. 269 fact that it was in his power to purchase or remove the defect of est circumstance in the case against the exercise of equitable interference. Had the contract been executory, it would, perhaps, taken in connection with the lapse of time, be conclusive against the bill. But it must be observed that in this case the question is not whether the 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 and conveyance accepted, and possession taken and enjoyed without disturbance. The vendee, having his deed with covenants of general warranty and seisin and for further assurance, could undoubtedly compel the vendor to convey any subsequently acquired title to him. He may sue on the covenant of seisin and recover dam- ages, but, if he prefers, he may still resort to his covenant for further assurance or general warranty. The remedy is then reciprocal. Had the property risen in value, the vendee could unquestionably have forced the title from the vendor, had the vendor acquired any subsequent to his conveyance. " The case of Cotton w. Ward, 3 Monr. (Ky.) 312, is not unlike the present, and is a decisive expression of opinion on the part of the Kentucky Court of Appeals in favor of the exercise of such a power by a court of chancery. Cotton had conveyed the title to Ward, and put him in possession, and having obtained a judgment against him for a part of the consideration. Ward enjoined it for alleged defects in the title. Pending the injunction. Ward brought his suit at law for a breach of the covenant of seisin, and recovered damages. Cotton filed a cross- bill to enjoin this judgment, and being able to exhibit at the hearing a perfect title. Ward's injunction was dissolved, and Cotton's perpetuated, whereby Ward was compelled to take the title, and give up his judgment for damages. " As to the idea that a court of equity will never interfere after the vendee has exercised his privilege of electing damages at law, this, we have seen, is not so. Even in executorj' contracts the authorities are numerous where the vendee has been compelled to give up damages recovered upon a rescission of the contract in a suit at law, and accept performance in lieu thereof. This is usually done, and indeed always done, where time is not of the 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 have not materially changed. And if this will be done in executory contracts, there is much more reason why the power should be exer- cised where the contract has been executed." From this judgment, however, one of the three members of the court dissented. " The defendant," said he, " having recovered a judgment at law for a breach of the covenant of seisin, the regularity or propriety of those proceedings cannot be revised by a bill in equity. If the damages recovered are greater than the party was entitled to, that alone is no ground for relief. There are no circum- stances stated in the bill which, in my opinion, are sufficient to warrant the inter- ference of a court of equity. If relief is granted in this case, then in every case of the recovery of damages for a breach of the covenant of seisin, the vendor at his option may procure a title or pay the damages, according as the property has fallen or risen in vSue." 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 270 THE MEASURE OP DAMAGES. title or incumbrance, nor even that he had, upon offer made, re- fused so to do.i peculiar, the purchaser having himself first come into equity, and prayed for the very decree which the court afterwards gave to him. This is carefully stated in the decision, in which the Chief Justice says : "Ward had himself first appealed to the Chancellor, asking either that the contract should be rescinded, or that Cotton should be compelled to make further assurance ; and, notwithstanding he had, pending his suit in chancery, recovered judgment at law, he still continued the suit until it was finally heard. In the mean time, Cotton had appealed to the same tribunal, and asked that Ward might he 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 ichich ought to he granted in a case where Cotton alone loas the complainant, in the actual attitude in which this case is presented, there certainly can be no doubt that the court should decree a specific performance by compelling Cotton to make, and Ward to accept of further as- surance." ' Stewart v. Drake, 4 Halsted (N. J.), 143 ; Miller v. Halsey, 2 Green QS. J.), 48, where the defendant having pleaded that the owner of the paramount title had offered to release it for a moderate sum, which the plaintiff refused, the court held the plea bad ; Elder o. True, 32 Me. 104 (see this case, infra, p. 272); Chapel v. Bull, 17 Mass. 221; Norton v. Babcock, 2 Met. (Mass.) 610 ; Lloyd v. Quimby, 5 Ohio St. R. 265 ; Burk v. Clements, 16 Ind. 132. " If the incumbrance," said the court, in Chapel v. 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 extinguish it by purchasing of the holder of the paramount title. But it not being in the plaintiff's power to compel the latter to sell, neither should he be obliged to buy ; and if he has been deprived of the fruits of his bargain, he should be restored to the price he paid." So, as was said in Lloyd v. Quimby, supra, " It is true the grantee, while the prior mortgage remained only an incumbrance, might have discharged it if he had possessed the pecuniary ability, and thus saved himself from eviction, but then so might the grantor ; the grantee, whether able or willing or not, was in no way bound to do it, and had a right to expect that the grantor would do it, while he, the grantor, was bound to do it ; bound by the obligations of his express covenant." The local laws in Massachusetts and some of the other New England States regulating the foreclosure of 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 costs ; and hence, although the purchaser may have been actually evicted by the mortgagee, yet if the latter hold the possession only under a conditional judgment, or ilLJt be otherwise de- feasible by payment of the amount due on the mortgage, with costs, &c., the damages will be limited to that amount ; in other words, so long as the purchaser has still a legal right to regain the estate by payment of a certain amount, he can THE MEASURE OF DAMAGES. 271 And it has, moreover, been somewhat recently settled, upon great soundness of principle, that the purchaser's right to damages recover no greater damages (and it would seem to be also the law that, although a right of redemption may exist, yet that if the incumbrance binds several prop- erties, a party has no right to redeem less than the whole ; Bond v. Bond, 2 Pick. (Mass.) 382 ; Fossu. Stiokney, 5 Greenl. (Me.) 390. This was one of the points urged in the argument for the plaintiff, in Blanchard v. Ellis, 1 Gray (Mass.), 199, infra) ; as otherwise he might recover the consideration-money, and then obtain the estate by the payment of a smaller sum. Thus where, in Tufts V. Adams, 8 Pick. (Mass.) 647, land, which was subject to a mortgage, was con- veyed with covenants against incumbrances and of warranty, the mortgagee had obtained a conditional judgment and been put in possession by a writ of habere facias. " But it does not necessarily follow," said the court, " that the damages should be assessed to the value of the land, because the right of redemption is open, and the plaintiff may discharge this incumbrance, and restore himself to possession by paying the debt and interest and the costs of suit. 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 by the mortgage, and thus hold an indefeasible title, which is all he has a right to exact from the defendant. It appears reasonable, therefore, that for this breach of the covenant of warranty (the deed also contained a covenant against incumbrances, but the breach was defectively set forth in the declaration), the proper rule of damages should be to give the amount due upon the mortgage, with the costs of the suit upon the mort- gage against the plaintiff, and thus he will be enabled to redeem the lands from the funds of the defendant. If he should not redeem, but suffer the equity to be foreclosed, then, if there shall be any loss, he will have no right to complain." So, in the subsequent case of White v. Whitney, 3 Met. (Mass.) 89, the court held, " If the right of redemption is not foreclosed, and the land may be redeemed for less than its value, the amount to be paid for such redemption — the amount due on the mortgage — will be the measure of damages, because it will afford the plaintiff a complete indemnity. Cases may be supposed where the outstand- ing mortgage, though assuming the form of a paramount title, which, if not re- deemed, would«take the whole estate and evict the covenantee, yet being very small in amount in comparison with the value of the estate, it would be plainly for the interest of the owner and holder of the equity of redemption to redeem. In such case, it would be quite unreasonable to hold that the covenantee, on such an eviction, should recover damages to the full value of the estate. In the more recent case of Donahoe v. Emery, 9 Met. (Mass.) 68 (where the covenant was for quiet enjoyment, but the same principle equally applied, Willson v. Will- son, 5 Foster (N. H.), 236), the law has been held the same way, and it must be taken to be settled that when the purchaser thinks proper to sue while such a right of redemption is still open on his part, his damages will be limited by the amount of the redemption-money. At the same time it seems to be settled, in accordance with the general prin- ciple heretofore stated, that the purchaser is under no obligation to redeem, and 272 THE MEASURE OP DAMAGES. is one of which a court of equity cannot deprive him, or, in other if he let the time necessary for that purpose elapse, and the incumbrance thus becomes changed into an absolute title, his right to measure the damages by the consideration-money will not be impaired by his not having availed himself of his right to redeem ; Elder v. True, 32 Me. 104. As the deed in this case con- tained also a covenant of warranty, the damages were held to be measured by the value at the time of eviction. This case was a hard one upon the vendor. He sold covenanting against incumbrances ; but, finding that an outstanding mort- gage still existed, he tendered the amount to the mortgagee, who refused to receive it ; and the court held, upon a bill filed to compel him to do so, that the mortgagor, having no longer an interest in the land, had no standing in court to compel acceptance of the mortgage debt (see True v. Haley, 21 Me. 297) . The mortgage was then foreclosed, and the three years allowed for equity of redemption passed by, when the purchaser sued upon the covenants (Elder v. True, supra), and the court held him entitled to damages as above stated. This ease is indeed one of the strongest instances of the application of the rule stated in the text ; for, in fact, the purchaser, had he chosen so to do, could have thrown all the mortgage debt off from his own shoulders, as there had been a subsequent purchaser from his vendor of another part of the land, bound by the same mortgage, and, according to the rule first established in New York, and afterwards adopted in Maine and many other States, of subjecting property thus sold to the lien of the incumbrance according to the inverse order of its alienation (Clowes v. Dickenson, 5 Johns. Ch. (N.Y.) 235 ; Holden v. Pike, 24 Me. 427 ; and see all the cases collected in the 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 Met. (Mass.) 510, the defendant, the vendor, had acquired the estate by means of a judgment against its former owner, by virtue of which, under local laws, the land had been set off to the defendant, leaving, however, in the judgment debtor, an equity of redemption, and the defend- ant sold the premises to the plaintiff, " with the usual covenants of seisin and warranty, and against incumbrances." Subsequently, the equity of redemption was levied on and sold under another judgment against the same -original owner, and the purchaser of this equity gave notice to the purchaser of the property of his intention to redeem, to prevent which the latter paid him $602.89 (being the amount, with interest, for which the equity had been purchased), and then brought suit upon the covenants. "It appears,'' said Shaw, C. J., "by the statement of facts reported, 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 of his intention to redeem ; whereupon the plaintiff, in good faith, and in order to dis- charge that right to redeem, and enable himself to retain the estate, paid $602.89, in order to extinguish such incumbrance. The value of the estate at that time, THE MEASURE OP DAMAGES. 273 words, that the option, when there is one, should be the option of as found by the jury, was $1,200 ; and the value of the improvements made upon it, $500. " It is contended for the plaintiflf that the amount thus paid by him to extin- guish the incumbrance is the measure of his damages ; but we thinlc this cannot be laid down as a rule of damages, without considerable qualification. Where the incumbrance is of such a character that, if not extinguished, it would take the whole estate, and it can be extinguished for less than the value of the estate ; so that the amount paid for its extinguishment would bring a less onerous burden upon the covenantor than he would have to sustain by an eviction, it being for his benefit as well as that of the owner to extinguish it, the amount paid for ex- tinguishing would be the measure of damages, because it would afford the plain- tiflf a perfect indemnity. Otherwise, the amount thus paid exceeds the amount which the covenantor weuld have been bound to pay if the plaintiff had been evicted. "For instance, we will suppose the case of a conveyance with the usual cove- nants against incumbrances and covenants for warranty. There is an outstand- ing mortgage, and the mortgagee is about to close and oust the grantee. He must redeem or be evicted. If he is evicted, he will have a remedy on his cove- nant, and recover the value of the land, at the time of the eviction, and interest. Now, if the value of the land be $2,000, and the amount of the mortgage, with interest, $2,500, should the grantee redeem and pay $2,500 to extinguish the incumbrance, he could not recover that sum of his warrantor, although the incum- brance could not be extinguished for less, because the covenantor is liable only for the value of the land. But if the mortgage should amount to $1,500, and the grantee should pay that sum to redeem, it would constitute the measure of dam- ages ; because it would afford an indemnity to the plaintiff, and bring a less charge on the covenantor than if the grantee had permitted the mortgagee to foreclose. ... In Wyman v. Brigden, 4 Mass. 150, the estate conveyed by the defendant to the plaintiff, with covenants, was rightfully levied upon as the estate of Moses Gill, deceased, for $1,800. Before the year expired, the defendant (it should be plaintiff, as the case shows), never having been put out of actual possession, redeemed by paying the $1,800, it being found that the estate was worth $3,000. It was held that the plaintiff having derived from the defendant all his estate in the land, including the right to redeem, at a less sum than the actual value of the land, for which he might have been liable on eviction, the difference should enure to the benefit of the covenantor, and that, therefore, the sum paid for such redemption should be the measure of the plaintiff's dam- ages. We are then to apply this rule to the present case, and the result will be, that if the sum of $602.89, paid by the plaintiff to extinguish the right of re- deeming, was less than the defendant would have been liable for, had the plain- tiff permitted Phelps to redeem, then that is the measure of damages for which the defendant is now liable. If it exceeds that amount, then he is liable only for the smaller amount. " Had the plaintiff declined the offer to pay, what would have been the amount of damages ? As the estate granted by the defendant to the plaintiff actually passed by the conveyance, the defendant being seised, and having good 18 274 THE MEASUBE OP DAMAGES. the party entitled to the benefit of the covenants, rather than the option of the party bound by them.^ Thus in the well-considered case of Tucker v. Clarke,^ a pur- chaser, having brought suit on his covenant, refused to accept the outstanding title which his vendors had acquired since the convey- right to convey, subject only to redemption by his creditor, the amount of dam- ages he would have been liable for on his covenants was the value of the land at the time of the eviction ; Gore v. Brazier, 3 Mass. 543. The value of the land, independent of the improvements, was then $1,200, and the value of the im- provements $500; making in round numbers $1,700. By improvements, we here understand buildings or betterments, other than repairs, made by the de- fendant or the plaintiff after the levy, and before the expiration of the year allowed by law for the redemption. The great difficulty probably arises from the fact of these expensive betterments made upon a defeasible estate. We are of opinion that if they were made by the creditor after the levy, the debtor could not be charged with them on redemption, for the reasons above stated ; and being annexed to the realty, and having become part of the freehold, they would have constituted a part of the actual value at the time of redemption. Suppose them made by the plaintiff, they were made by him after he had acquired a title purporting to be absolute and indefeasible under the defendant's deed of war- ranty ; and we are of opinion that, as between the plaintiff and defendant, the loss must fall on the latter. It arises from want of caution in giving such a deed, when in lact he had only a defeasible estate. It follows that, if the plaintiff, instead of paying the sum he did to extinguish this right of redemption, had yielded to it and given up the estate, his right on the defendant's covenant would have been to recover to the value at the time of the redemption, enhanced by the value of the betterments which he made upon it, deducting the sum he would have received on redemption. We think there must be a more exact statement of the account and assessment of the damages upon these principles. If the sum paid by the plaintiff for a release of the right of redemption was less than the defendant would have been liable lor on redemption, then the sum thus paid by the plaintiff would give him a complete indemnity, and would be the measure of his damages ; but if he paid more, in order to redeem the estate, than the de- lendant would have been liable to him for, upon an actual redemption, then the damage on this breach of covenant cannot exceed the last mentioned sum." The difference between this case and that of Tufts v. Adams, 8 Pick. (Mass.) 647, supra, p. 271, is, that in the former the plaintiff had the legal estate temporarily suspended, and in the latter only an option of purchase. ' " It is against conscience," says Story, " that a party should have a right of election whether he would perform his covenant, or only pay damages for the breach of it. But, on the other hand, there is no reasonable objection to allow- ing the other party who is injured by the breach to have an election either to take damages at law or to have a specific perlbrmance in equity ; the remedies being concurrent, but not coextensive, with each other ; " 2 Story, Eq. Jur. §717 a. = 2 Sandford's Chan. R. (N. Y.) 96. THE MEASURE OP DAMAGES. 275 ance and had tendered to him, together with the costs of his suit. The vendors having filed a bill to compel him to accept this title, it was dismissed by Sandford, V. C, who said : " The complain- ants do not ask the court to compel a specific performance of an open agreement. They ask to compel the defendant to give up his claims under a deed executed seven years before the bill was filed. The executed contract was, that the complainants were seised of the lots, and if they were not, that they should repay the consid- eration-money. This is sought to be reconsidered and turned into a contract by which, if it should ever turn out that they were not seised, they might either repay the 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 defend- ants might have coerced them to procure a good title on discover- ing the defect. But there is no pretence that the defendant had any such equity. The complainants' ground amounts to this : if the lots had become worth two or three times the price which the defendant paid for them, then they could set up tlie outstanding title, deprive the defendant of his speculation, and throw him upon the covenants in his deed, which would restore to him the con- sideration paid. If, on the other hand, the lots should depreciate very much, the complainants would procure the outstanding title for him, and retain the price which he paid. There is no equity or fairness in this, and the court cannot grant the relief prayed by the bill, without first making such a contract for the parties ; a contract which they never did make, and, I presume, never would have made, if any failure of title had been supposed probable when the conveyance was executed." The soundness of this reasoning seems very great, and it has been recognized in another recent case in the same State,^ and approved and followed elsewhere.^ ' Bingham D.Weiderwax, 1 Comstock (N. Y.),513. The facts were these : one Van Buren agreed with a corporation to purchase of them a tract of land for $850 in cash, subject to two mortgages, amounting together to $3,000. On the ap- 2 Burton v. Reeds, 20 Ind. 93 ; Noonan v. Ilsley, 21 Wis. 146 ; s. c. 22 id. 82. where, speaking of Reese v. Smith, supra, the court said : " Two of the judges concurred in the opinion, the other dissented, on the ground that a court of equity had no jurisdiction of the action. On principle, that decision cannot be sus- tained, and we know of no authority to sustain it. It is directly in conflict with Tucker v. Clarke, 2 Sandford, Ch. 96." For facts and opinion of the court, see infra. 276 THE MEASURE OP DAMAGES. And, especially in Massachusetts, where the doctrine of estoppel has been carried to its fullest extent, has it been recently held that pointed day the president and certain of the directors executed a deed for the premises, " in consideration of $3,850, and subject to the two mortgages men- tioned in the aforesaid articles of agreement,'' covenanting that they were the true and lawful owners in right of the corporation, and were seised of a perfect estate in fee-simple, and had good right to convey. This deed was inoperative to pass the title of the corporation, which was afterwards dissolved. Van Buren went into possession, but not paying the mortgages they were foreclosed in 1843, and sold, when his administrators sued the grantors on their covenant for seisin. The latter filed a bill for a perpetual injunction of this suit, on the ground that, at the time of the conveyance, all the parties understood that it was sufficient to pass the title, and that the premises had been sold by reason of the mere neglect of Van Buren to pay the mortgages. A demurrer to the bill was overruled by the Vice-Chancellor, but the Court of Appeals reversed this decision, and Jewett, ' C. J., in delivering the opinion of the court, said : " The bill concedes that the title to the lands was not conveyed to Van Buren, although he, as well as his grantors, supposed it was, by the deed executed to him. The complainants and the administrator of Van Buren have since discovered that Van Buren's grantors were never seised of any estate in the lands ; that the turnpike corporation, at the time of executing the deed, was seised of these lands, and so continued, until its dissolution in 1840. How then can it be said that Van Buren lost the land or the title thereto (which he never had), by neglecting to pay the mortgage ? If he had paid it, it would not have invested him or his grantors with the title. Neither lost the land, or title to it, by the foreclosure and sale. Payment of the mortgage by Van Buren 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 adminis- trator would be entitled to recover of his grantors for the breach of their cove- nant of seisin contained in their deed to him. Van Buren's right of action for the breach of that covenant was perfect the instant the deed was executed ; Hamilton v. Wilson, 4 Johns. 72 ; McCarty v. Leggett, 3 Hill, 134. It did not arise nor depend in any respect upon the foreclosure of the mortgage and sale under it. Nor did the foreclosure and sale in the least affect the complainant's rights or liabilities. If Van Buren had paid the mortgages, and then he, or his administrator after his death, had brought an action for the breach of the covenant of seisin, it would not have been a good ground in equity for relief against their covenant that he could have compelled the corporation before its dissolution to convey the title to him. He would have the right to rely on his covenant, and take his remedy by action upon it. Van Buren's grantors agreed with him that they were seised of the land, and it was their business to see that their covenant in that respect was kept, when they executed the deed. Equity may compel parties to execute their agreements, but has no power to make agreements for them, or to substitute one for another. And, besides, it appears from the bill that the corporation even did not lose the land or its title by the foreclosure and sale under the mortgages. It had lost its title nearly or quite three years before, in 1840, by its dissolution. At that time, and for that cause, the title reverted back to its original grantor or his heirs, there being no provision in its charter or in any other statute to avert THE MEASURE OF DAMAGES. 277 a grantor has no right to fasten upon his purchaser, nolens volens, an after-acquired title. ^ " Supposing it to be well settled," said the court, " that if a new title come to the grantor before the evic- tion of his grantee it would enure to the grantee, and not deciding, because the case does not require it, whether the grantee even after eviction might elect to take such new title and the grantor be estopped . to deny it, we place the decision of this case on this precise ground, that where a deed of land has been made with covenants of warranty, and the grantee has been totally evicted from the premises by a title paramount, the grantor caimot 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 ; " ^ and this decision has been followed and approved in a very recent case in Wisconsin.^ that consequence upon its dissolution; Angell & Ames on Corp. 128, 129; 2 Kent's Com. 305. At all events, the bill shows the dissolution of the corporation at the time mentioned, without showing that the title to their lands was saved in such manner as that Van Buren, or his representatives, could by any means have acquired it under the agreement and deed, even if he had paid the mortgages subsequently and before foreclosure ; and it is not set up that he had agreed to pay, or that the holders of the mortgages were bound to receive, or would have received payment of the mortgages, or either of them, prior to the time of the dissolution of the corporation, or prior to the time of the death of Van Buren ; or that he at any time knew or had notice that he could compel the corporation, or any other person, to convey to him the title to said land ; or even that he knew or was informed that his grantors were not seised when they executed the deed. Therefore it seems to me that there is no ground upon which to sus- tain this bill, founded upon the neglect of Van Buren to pay the mortgages, or either of them." > Blanohard v. Ellis, 1 Gray (Mass.), 199. ^ The opinion was predicated upon the covenant against incumbrances, but the reasoning applies equally to the covenant for seisin. " We do not seek," said Thomas, J., who delivered the opinion, "for a better illustration of the soundness of this principle than is furnished by the facts of this case. The land, for which the consideration stated in the deed was $5,520, was under attachment in a suit in which judgment had been recovered for more than fifty thousand dollars ; the entire tract, of which one quarter had be3n conveyed to the plaintiff, was aftervrards levied upon, seisin given to the creditor, and the plaintiff wholly evicted. He had no estate or interest left. The covenant against incumbrances being personal, and not running with the land, he had nothing which could pass by deed. He could not redeem his undivided quarter, without a redemption of the entire estate. He could not, for a period of ten years, enter upon the land, without committing a trespass. The defendants admit the existence of the title ' Nichol J). Alexander, 28 Wis. 130. 278 THE MEASURE OP DAMAGES. And, in fact, the whole difficulty which this subject presents (if, indeed, any really exist) grows out of the essential differences paramount and the eviction of the plaintiff, but contend, after the eviction has continued ten years, that they as grantors may avail themselves of this rule of estoppel, force the grantee to take the estate, however changed the situation of his own affairs or the condition of the land. So that the equitable rule of estoppel which forbids the grantor to deny that he had the estate which he had assumed to grant, and the truth of his own covenant, — a rule established for the protection of the grantee and to be applied only to effect justice and prevent wrong, — is converted into a right of election in the grantor, upon a breach of his covenant to pay back the consideration-money, or by indirection to reconvey the estate. We say an election by the grantor, for it is clear that the grantee cannot compel the grantor to buy in the paramount title, but must rely solely upon his covenants. It is equally clear that, if the estate during the eviction should greatly increase in value, the grantor would not be likely to purchase such para- mount 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 market. There is neither mutuality or equity in such a rule. And we are satisfied, upon examina- tion of the authorities, that no case will be found which carries the doctrine of estoppel to the length claimed by the defendants, which in fact estops the grantee, and leaves a right of election in the grantor. The case of Baxter v. Bradbury, 20 Me. 260, has been strongly pressed upon us as a decision of the very ques- tion at issue. If this were so, the question having reference to the title to land in that State, the decision on that ground, as well from our respect for that court, would be entitled to the highest consideration, if, indeed, it were not conclusive. But though there are dicta in that case which state the doctrine very broadly, the case itself differs materially from the one at bar. That was an action for a breach of the covenant of seisin in a deed of warranty, with a mortgage back of the premises, of the same date to the grantor. The ground taken by the counsel of the defendant, and upon which the court seem to have proceeded in their judgment, was, that there never had been any interruption of the possession of the plaintiff, and seeking to deduce from that case a rule for our guidance, this circumstance must be deemed most material, as for a breach of this covenant against incumbrances, nominal damages only could be recovered, unless the plaintiff had been evicted by title paramount, or had actually discharged the incumbrance. The court, in the case of Baxter v. Bradbury, refer to a state- ment of the result of the authorities by the late Chief Justice Parker in the case of Somes V. Skinner, 3 Pick. (Mass.) 52. An examination of the whole opinion in that case would lead us to infer that this statement was not made without some misgiving and distrust. The precise question now under consideration was not before the court, and what in that part of the case was decided was, that where a title has enured by estoppel, it will avail the grantee not only against the grantor and his heirs, but strangers who usurp possession without right ; and under the facts of the case, and in the view in which it was applied, there is no occasion to reconsider the rule there stated." It is true that in this case there had been an eviction, and a late writer ot THE MEASURE OF DAMAGfES. 279 between the remedies administered according to the forms of tlie common law, and tliose to which courts of equity are accustomed. The common law knew nothing of rescission of contracts in the sense in which that term is here used, — it provided, and sought to provide only a certain remedy for a certain loss, and was inade- quate to work out the incidental problems by which alone, in many cases, substantial and final justice can be dealt out to both plain- tiff and defendant.! If, however, it be considered that a purcliaser still in possession, and having paid nothing for the paramount title, may be allowed to have liis damages measured by the consideration-money, it is authority seems to limit the application of the doctrine to such a case, by saying, " If the purchaser be evicted by a better title, it is not in the grantor's power afterwards to acquire a title to the premises, and compel the grantee to accept the same against his will " (3 Washburn on Real Property, 373, 673) ; but the reasoning would seem equally to apply to any case where the purchaser had a present right to damages, as, for example, when he had received a covenant for seisin and the title had wholly failed, even though there had been no disturbance of the possession. ' Thus in the first report of the Judicature Commission (composed of the ablest English lawyers of the day), made to Parliament in 1869, it was .said : "The common-law courts were confined by their system of procedure in most actions (not brought for recovering the possession of land) to giving judgment for debt or damages, a remedy which has been found to be totally insufficient for the adjustment of the complicated disputes of modern society. The procedure at common law was founded on the trial byjury, and was framed on the supposition that every issue of fact was capable of being tried in that way ; but experience has shown that supposition to be erroneous." And with reference to the subject- matter of the text, it was said in Combs v. Tarlton, 2 Dana (Ky.), 467 : " There are too many questions growing out of the rescission of a contract between vendor and vendee put into possession, to allow them to be considered and settled by the jury upon the trial of an action of covenant. The vendor may be entitled to a set-off for the profits of land, for waste and damage ; and against these claims the vendee may be entitled to an allowance for improvements. To settle such multifarious and complicated matters, the Chancellor is more com- petent to administer justice than the common-law judge, aided by the hasty inquiry of a jury.'" Mr. Sedgwick admits the difliculty, but solves it by lessen- ing the value of the covenant to the purchaser. He says : " Any rule by which actual damages are given where no actual loss is sustained, has, in truth, no other effect than to engraft on the courts of law a species of specific performance, irregular and illegitimate ; and which neither their forms of procedure, nor the general arrangement of their system, enable them to exercise without great danger of injustice and abuse. The rule should be considered cardinal and absolute, that actual compensation shall only be given for actual loss ; " Sedgwick on Damages, 807. 280 THE MEASURE OP DAMAGES. obvious that some provision should be made, so far as the simple machinery of the common law will allow, by which, on payment of the damages by the covenantor, the estate which has been sold should be, such as it is, revested in him. As to this, it has been suggested that the recovery of damages upon the covenant for seisin will, of itself, operate at law to revest the title in the cove- nantor. ^ It has, moreover, been decided in two cases in Massa- chusetts, that a conveyance made by a covenantee who had recovered back his consideration-money for a breach of the cove- nant for seisin, passed no title whatever to the purchaser ; decisions which must necessarily have proceeded upon the ground that the title had, by the recovery of the damages, become revested in the covenantor.^ ' Kincaid v. Brittain, 5 Sneed (Tenn.), 123, where the text was quoted ; Parker v. Brown, 15 N. H. 188. " If the grantee," said Parker, C. J., in deUvering the opinion of the court, " recovers damages for the breach of the covenants of seisin, on the ground that the grantor had no title whatever, the operation of it must be to estop the grantee from setting up the deed afterwards, as a conveyance of the land, against the grantor. We see not why the grantor may not again enter, if he chooses, as against the grantee. A recovery in tres- pass or trover, with satisfaction, vests the property in the party against whom the damages are assessed. We are not aware of any thing in the nature of the feudal investiture, or in the principles which regulate the title to land at the present time, that should require a different rule in relation to real estate. The record of the recovery will furnish as good an estoppel as that which arises from a dis- claimer; Hamilton v. ElHot, 4 N. H. 182. The defendants may re-enter if they think proper, and will hold, under their former possessions, against all persons who cannot show a better right." So, in the recent case of Johnson v. Simpson, 36 N. H. 96, where judgment had already passed against the defendant, and the only question was of damages, the court seemed to be of opinion that had not the defendant been defaulted he would not have been subjected to any damages (on the ground that the deed had conveyed a sufficient title to the plaintiff), and then said, " It may be a question whether the plaintiff, by taking judgment for damages, may not endanger his title to the premises." ' Porter v. Hill, 9 Mass. 36 ; Stinson ti. Sumner, id. 150. " It would certainly be manifestly against the principles of justice," said the court, in the latter case, " that a grantee should recover either his purchase-money or the value of the land, against the grantor, upon an alleged breach of covenant that nothing passed by the deed, and that he should yet be considered the owner of the land, under the very deed which he had alleged to be inoperative. It has lately been decided (Porter v. Hill) that one who has recovered judgment for damages for a breach of the covenants in his deed, upon an allegation that the grantor was not seised and had no right to sell, shall not set up his deed against the grantor, or any one claiming under him, in an action for the land ; but that a judgment for the recov- ery of damages for the breach of such covenants shall avail against such deed, THE MEASURE OF DAMAGES. 281 If, however, it is to be considered as at all doubtful whether, by the recovery of the consideration-money, the estate would, by mere operation of law, revert to him from whom the damages had been recovered, the court might, in the exercise of its discretion, stay the execution,^ or reserve the actual entry of the judgment until a reconveyance were made to him. It would, perhaps, be a matter of prudence for the purchaser to offer such a reconveyance before, or at the time of the trial,^ although it would be no bar to his action that he had not done so.^ when pleaded by a party having a right to plead such judgment. This case de- pends on the same principle." Such a result seems, too, to have been the opinion of Kent, C. J., in Morris u. Phelps, 5 Johns. (N.Y.) 55, and has been ched arguendo in Fitch v. Baldwin, 17 Johns. (N.Y.) 164 ; and in the recent case of Blanchard v. Ellis, 1 Gray (Mass.), 202, the court said, " The question arises. How will the de- fendants, 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 an- swer is, that the judgment in this suit will be a perfect bar to the plaintiff and those claiming under him ; Porter v. Hill, 9 Mass. 34." It would seem, however, that a mere recovery should not by itself be allowed to have such an effect, unaccompanied by any evidence of payment; Foss v. Stickney, 5 Greenl. (Me.), 392. ' In cases where the deed has, in addition to the covenant for seisin on which suit has been brought, also contained covenants for quiet enjoyment or of war- ranty, 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 release of the latter covenants ; Catlin v. Hurlburt, 3 Vt. 409 ; Blake v. Burnham, 3 Wil- liams (Vt.), 437. ^ Alexander v. Schreibner, 13 Mo. 275 ; Sugd. on Vendors, 499. In the rival treatise on Vendors and Purchasers, however, the author says : " Lord St. Leon- ards seems to consider that, where the title is defective within the covenant, the purchaser, before eviction, may offer to reconvey the estate and claim the entire purchase-money ; but no authority is cited for this proposition, which appears to be untenable, the extent of the damnification being the difference between what the covenantee has and what he ought to have; " Dart on Vendors (4th ed.), 724. In the first edition, however, the criticism was thus expressed : " But no authority is cited for this proposition ; at any rate, if an action were brought be- fore eviction, unaccompanied by an offer to reconvey, it seems that the entire value could not be recovered ; " Dart on Vendors (1st ed.), 374. ' Bender w. Fromberger, 4 Dall. (Pa.) 437, note ; Ives v. Niles, 5 Watts (Pa.), 329 ; Lot v. Thomas, Pennington (N. J.), 299 ; Lawless v. Collier, 19 Mo. 485. Bottorf t). Smith, 7 Ind. 673, is not at variance with this position. It was an action for the purchase-money of land conveyed with a covenant for seisin, and the de- fendant in his answer (under the code) averred that the grantor was not seised of any good title in fee-simple, and that the conveyance was of no value. The 282 THE MEASURE OP DAMAGES. But whatever may be these difficulties in a court of law, there can be little doubt, on general principles, that equity would restrain a covenantee who had recovered back the consideration-money from setting up, as against his covenantor, that title which, by his action on the covenant, he had asserted to be defective,^ and would prob- ably deci-ee a reconveyance by him.^ plaintiiF objected that the grantor might have been seised of a lesser estate, and that there was no oifer to reconvey, which objections the court held to be well taken ; " because, if the plaintiff receives no purchase-money, he would be enti- tled to a reconveyance of whatever estate he might have conveyed." Apart from this, it is well settled that in an action for the purchase-money, mere absence of title is no defence to its payment; see infra, Ch. XIV. In the first edition of this work, it was said: " If nothing had been paid, and no pecuniary loss had been suffered, and the possession had not been disturbed, and the purchaser did not offer to reconvey, it is believed that nominal damages only would in general be allowed. The technical rule, therefore, that the cove- nant for seisin is broken, if at all, at once and completely is, as respects the dam- ages, little more than a technical one;" Covenants for Title (1st ed.), p. 83 (citing the case of Collier v. Gamble, 10 Mo. 472, where it had been held that " the reasonable rule was to recover nominal damages only, until the estate con- veyed was defeated, or the right to defeat it had been extinguished"), and this passage was cited in the recent case of Overhiser v. McCoUister, 10 Ind. 44, and held to be " obviously just." The treatise then went on to say : " Cases may, of course, occur in which, although the purchaser may have paid nothing to buy in the paramount title, and may still be in possession, 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 first passage above quoted did not correctly express the law, and it was omitted in the second edition. Since then the case in Missouri came up again (Lawless v. Collier, 19 Mo. 480), where the second of the passages above quoted was referred to, and the case decided accordingly. It is believed that the text as now offered contains the true statement of the law, and that if the breach of the covenant has occurred, affecting the whole of the title (for where it touches part only, Morris v. Phelps, 5 Johns. (N. Y.) 56, is a distinct authority that the purchaser has no option to rescind) , the plaintiff has a right to recover damages measured by the consideration-money, the effect of whose receipt will be, subject to the exceptions hereafter to be noticed, to revest the title, such as it is, in the covenantor. And it may be remarked of the case of Overhiser u. McCollister, above referred to, that the Supreme Court of Indiana seems to have adopted the doctrine held in England that the covenant for seisin is not broken as soon as made, but that the breach is " a continuing one" until actual damage suffered; see supra, p. 264, and infra, Ch. VIII. • Bank v. Mersereau, 3 Barb. Ch. (N. Y.) 571. 2 McKinny v. Watts, 3 A. K. Marsh. (Ky.) 268 ; Park v. Cheek, 4 Coldwell (Tenn.), 28. THE MEASURE OP DAMAGES. 283 Whatever may be the technical or the practical rule as to the measure of damages upon a total breach of the covenant for seisin, it is well settled that, upon a partial breach, a purchaser may, and, it seems, must recover pro tanto. Thus where in the early case of Gray v. Briscoe,^ one covenanted that he was seised of Blackacre in fee-simple, when in fact it was copyhold land, and the jury were directed to give damages according to the rate at which the county valued fee-simple more than copyhold land.^ So where in a case in New York,^ the grantors had a life-estate in four-sixths of the premises and a fee in the remainder, it was held in an action on the covenant for seisin that the damages should be measured by deducting the value of the life-estate from four-sixths of the pur- chase-money, and without interest, as there was no one to call upon the plaintiff for the mesne profits. So where a tenant for life having conveyed with covenant for seisin in fee, the purchaser was held entitled to recover the consideration-money, deducting there- from the value of the life-estate,* and, for the same reason as in the case last cited, without interest. The principle adopted in these cases has been recognized and applied in many others.^ ' Noy, 142. In the report of this case it has been erroneously printed, " held, the covenant was not broken ; " but the context sufficiently shows this to be a mistake. " This case well illustrates that want of any precise measure of dam- ages which characterizes almost all the early English decisions ; " Sedgwick on Damages, 162. ' In Wace v. Bickerton, 3 De G. & S. 751, one seised of a fee-simple estate worth £57 per annum, and of an estate for life worth £190 per annum, conveyed them, on the marriage of his son, to trustees, and covenanted that they were together worth £200 a year, and that he was seised thereof in fee-simple, free from all incumbrances. Upon the death of the settlor, his grandchild, the only issue of the marriage, filed a bill against the executors of his grandfather, praying a declaration that the estate of the latter was indebted to the trustees of the set- tlement in such a sum as would be sufficient to make up from its income the difference between the value of the fee-simple estate; viz., £57, and the annual sum of £200. But Vice-Chancellor Bruce held that he was entitled not only to the sum prayed for, but to such a sum as would produce the annual value of the estate held for life ; viz., £190 per annum. ' Guthrie v. Pugsley, 12 Johns. (N. Y.) 126. ■* Tanner v. Livingston, 12 Wend. (N. Y.) 83 ; Lockwood v. Sturdevant, 6 Conn. 373. * Blanchard b. Hoxie, 34 Me. 376 ; Morrison ». M' Arthur, 43 id. 567 ; Ela v. Card, 2 N. H. 175 ; Hubbard v. Norton, 10 Conn. 435 ; Rickert v. Snyder, 9 Wend. (N. Y.) 416; Bryan v. Smallwood, 4 Har. & McHenry (Md.), 483; Nyce V. Obertz, 17 Ohio, 76 ; Mills v. Catlin, 22 Vt. 98 (in which case it was 284 THE MEASURE OP DAMAGES. It naturally follows that upon a failure of title in a specific part of the subject of the sale, either party may, for the purpose of affecting the damages, produce evidence to show the relative value which that part bears to the whole, and this, as was said in the case of Morris v. Phelps,^ operates with equal justice as to all the parties to a conveyance. " Suppose," said the court, " a valuable stream of water, with expensive improvements upon it, with ten acres of adjoining barren land, was sold for ten thousand dollars, and it should afterwards 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 whole value of the purchase had failed ? So, on the other hand, if only the title to the nine barren acres failed, the vendor would feel the weight of extreme injustice, if he was obliged to refund nine-tenths of the considera- tion-money. This is not the rule of assessment. The law will apportion the damages to the measure of value between the land lost and the land preserved. This doctrine is laid down as an ele- mentary rule in Potliier's treatise on the contract of sale.^ He held not to bave been error to admit life assurance tables to show the value of the life-estate) ; McNear v. McComber, 18 Iowa, 14; Phillips v. Reichert, 17 Ind. 120 ; Hoot v. Spade, 20 id. 326. In Terry v. Drabenstadt, 18 P. F. Smith (Pa.), 400, the covenantee was evicted in an action of dower of one-third of the land. The court below instructed the jury: "In measuring the damages you must take into consideration the age and health of the widow ; and it has been held that the rule of damages would be the amount of the depreciation of the fee- simple interest according to the consideration-money paid to the covenantor ; " and the Supreme Court said: "The rule laid down clearly appears to have been that the jury should find for the plaintiff the value of the life interest of the widow, estimating the fee-simple by the purchase-money. This is certainly in accordance with the authorities." In MoAlpin v. Woodruff, 11 Ohio St. R. 125, the covenantee was a lessee for ninety-nine years at a fixed rent, that being the whole consideration, and upon a recovery by the lessor's widow of her right of dower, it was held that the covenantee was not entitled to recover the present value of the dower interest, to be measured by the life tables, but to an abate- ment of one-third of the rent during the widow's life ; and the lessee was en- joined, during that time, from collecting more than two-thirds of the rent. Some of the cases here cited were actions upon other covenants than that for seisin ; but as to this there is no difference in principle between them. ' 5 Johns. (N. Y.) 56. ^ Trait6 du Contrat de Vente, No. 139, 142, 199. THE MEASURE OF DAMAGES. 285 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 the amount of the part from which he was evicted ; and that if the eviction be of an integral part of the estate sold, as, for instance, of a meadow or vineyard belonging to the farm, the damages must be assessed according to a valua- tion of the price of the meadow or vineyard, and the proportion which it bears to the price of the whole estate. Nothing can be clearer than the equity of this rule," ^ and it has been frequently recognized and applied,^ and in a recent casfe in the Exchequer, ' " The same principle," continued the learned judge, " is to be met with in the civil law. Bonitatis estimationem faciendam, cum pars evincitur. And Ulpian puts and answers this question : Quid enim, si, quodfuit in agro pretiosis- simum, hoc evictum est ; aut quod fuit in agro vilissimum ? ^stimabitur loci qualitas, et sic erit regressus ; Dig. 21, 2, 1. 1, 1. 13, and 1. 64, § 3. The recov- ery in value upon the warranty at common law was regulated by the same rule. The capias ad valentiam was issued to take as much land of the warrantor as was equal to the value of the land lost. Gape de terra in balliva tua ad valentiam tantce tervoe 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 question were first appraised by a sheriff's inquest, and afterwards the writ went to the sheriff of the other county, to take lands of equal value, which value was specified in the writ; Braoton, 384 a, 6. If the recovery in the present case had been of an undivided part of all the lands conveyed by the deed, then the rule of apportionment of damages according to the relative value could not have been applied, and this distinction runs through the authorities on the subject. But the plaintiff's title failed only to an undivided part of a speci- fied tract, and remained good to another and larger tract conveyed by the same deed and included in the same consideration. The apportionment according to the relative value is therefore strictly and justly applicable." 2 Dickens v. Shepperd, 3 Murphey (N. C), 526 ; Wallace v. Talbot, 1 McCord (S. C), 467; Leland v. Stone, 10 Mass. 463; Cornell B.Jackson, 3 Cush. (Mass.) 510; GriflSn v. Reynolds, 17 How. (U. S.) 611; Blanchard V. Hoxie, 34 Me. 376 ; Blanchard v. Blanchard, 48 id. 177 ; Giles v. Dugro, 1 Duer (N. Y.), 331; Major v. Dunnavant, 25 111. 265; Raines v. Calloway, 27 Texas, 685. In Pennsylvania this doctrine was, in King v. Pyle, 8 Serg. & Rawle (Pa.), 166, limited to a case where fraud had been practised, Tilghman, C. J., saying, ' ' I give no opinion whether, in case of a fair sale and in an eviction of a small part, the measure of damages should be the average price agreed to be paid for the whole tract. I will only say that I do not consider that point as settled ; " but in the subsequent case of Lea v. Dean, 3 Wharton (Pa.), 331, the court said : " It has also been contended, supposing that the plaintiff is entitled to recover for the non-conveyance of the one acre one hundred and forty-four perches, that he ought only to recover back such proportion of the whole pur- chase-money paid by him as the one acre one hundred and forty-four perches 286 THE MEASURE OF DAMAGES. the loss of the use of part of the premises for the purpose for which they had been leased was considered to be a proper element for the jury on the question of damages.^ But in this case of Morris v. Phelps, another question of much practical importance arose. It was urged for the plaintiff that if he were restricted from recovering more than the consideration- money, he ought not to recover less ; that he had a right to full damages for the whole land, and ought not to be compelled to ac- cept a good title as to part, where there was no title to the other part,^ for the very part which was lost might have been the princi- pal inducement to the purchase ; in other words, that the purchaser had a right, under such circumstances, to use the machinery of an action on the covenant for seisin as a means of rescinding the sale.^ But the court held that, in the first place, the plaintiff had never bears to the whole quantity of laud paid for. This, however, even in a case un- tainted with fraud, has neither reason nor authority to support it, as is very clearly shown by Chief Justice Kent, in Morris u. Phelps, 6 Johns. (N. Y.) 56." And in the more recent case of Beaupland u. McKeen, 4 Casey (Pa.), 134, this was considered to be settled law; see Nelson v. Matthews, 2 Hen. & Munf. (Va.) 164. ' Kolph V. Crouch, Law Eep. 3 Ex. 44. The plaintiff, who was a florist, had leased a house and an adjoining lot, and built a conservatory upon the latter. There was a paramount title to the back ends of both lots, under which he was evicted. Besides a reduction of the rent, the jury found the value of the con- servatory and compensation for loss of the land, and this was sustained by the court. " The plaintiff, relying on the performance by the defendant of his cove- nant [for quiet enjoyment], erected the conservatory for the better and more conveniently carrying on of his trade as a florist. He has lost the use of it, and I think he is entitled to the sum given him by the jury for that'loss ; " per Kelly, C. B. It will, however, be remembered that as between landlord and tenant, the measure of damages is not the same as between vendor and purchaser, for the reason that as between the latter, all relations, as a general rule (except of course as to payment of the unpaid purchase-money), cease with the execu- tion of the deed. Aliter in many cases, in leases, and even in sales where the unpaid purchase-money is to be secured by buildings to be erected by the pur- chaser ; see supra. '' Citing Farrer v. Nightengal, 2 Espinasse, 639, where the defendant had sold a leasehold interest for eight and a half years, and it turned out that this interest in the premises was for six years only. Lord Kenyou said that the pur- chaser had a right to consider the contract at an end, and bring his action to recover back any sum he might have paid in part performance. This, however, it must be noticed, was the case of an executory contract, and no lines are more sharply drawn than those which distinguish the rights of vendor and purchaser in an executory, as distinguished from an executed, contract for the sale of land. 3 See infra, Ch. XIV. THE MEASURE OP DAMAGES. 287 offered to rescind the sale, nor, if he had, did he conceive that it would have availed him in a court of law, since the contract was executed aud part of the consideration fulfilled, and, apart from this, there was, it was said, nothing in the case to authorize the plaintiff to go for the whole consideration, because the title to part failed. That fact alone did not rescind the sale after the deed was delivered and the consideration paid, and the plaintiff was held to be entitled to recover damages only in proportion to the ^extent of the defect of title.^ The same ground was taken in a late case in Indiana, where it was claimed that, as the lot had been purchased for a particular purpose, and as the failure of title rendered the premises useless for that purpose, the case should be taken out of the general rule wliich measured the damages only by the relative value of the part lost, but the case was decided in accordance with the rule in Morris v. Phelps.^ And whatever may be the apparent or real ' " This is an old and well-settled rule of damages,'' said the court; " thus in the case of Beaucharap w. Damory/Year Book, 29 Edw. III. 4, it was held by Hill, J., that if one be bound to warranty, he warrants the entirety, but he shall not render in value but for that which was lost. In 13 Edw. IV. 3 (and which case is cited in Bustard's case, 4 Coke, 121 V), the same principle was admitted, and it was declared and agreed to by the court, that in exchange, where a want of title existed as to part, the party evicted might enter as for a condition broken, if he chose; but if he sued to recover in value, he should recover only according to the value of the part lost. Though the condition be entire and extends to all, yet it was said that the warranty upon the exchange might severally extend to part. So in the case of Gray u. Briscoe, Noy, 142, B. covenanted that he was seised of Blackacre in fee, whereas in truth it was copy- hold land in fee, according to the custom ; and the court said that tlie jury should give damages according to the difference in value between fee-simple land and copyhold land. There is then no law or reason why the plaintiff should recover more than one-sixth of the consideration-money and interest, for the two tracts mentioned in the first count, and five sixths of the consideration- money and interest for the tract mentioned in the second count." ^ Phillips «. Reichert, 17 Ind. 122, "The counsel for the appellee admits," said the court, "that there are no authorities directly sustaining the position thus assumed. We have looked, within a limited range, for authorities upon this point, but find none. The absence of authority sustaining the position is some evidence, at least, that such is not the law. An analogy is sought to be drawn from the rule that where goods are ordered from a manufacturer for a particular purpose, there is an implied warranty that they shall be fit for the purpose de- signed. Such warranty may well be implied, and yet furnish no analogy for settling the rule of damages on a breach of the express warranty of title con- tained in the covenants of a deed ; " and somewhat, but not fully to the same 288 THE MEASURE OF DAMAGES. hardship of the rule so laid down, there appears to be no escape from it in any purely common-law form of proceeding. ^ If any doubt exist as to the right of the holder of a covenant for seisin or of right to convey, to recover the consideration-money or a part of it when he has neither lost the land nor incurred expense in purchasing the paramount title, there is none with respect to the covenant against incumbrances, which, while being considered equally with them to be broken as soon as made, is yet, as respects the measure of damages, treated purely as a covenant of indemnity, and it is well settled that if the incumbrance has in- flicted no actual injury tipon the plaintiff, and he has paid nothing towards removing or extinguishing it, he can obtain but nominal damages, as it is considered that he shall not be allowed to recover a certain compensation for running the risk of an uncertain injury .^ Thus, in Delavergne v. Norris,^ the plaintiff proved the existence of several mortgages on the premises conveyed, on which he had paid part of the amount thereby secured, leaving a balance still due thereon,* and the court held that judgment should be entered only for the amount which he had actually paid. " If the plain- tiff when he sues on a covenant against incumbrances has extin- guished the incumbrance, he is entitled to recover the price he has paid for it. But if he has not extinguished it, but it is still an outstanding incumbrance, his damages are but nominal, for he ought not to recover the value of an incumbrance on a contingency where he may never be disturbed by it. This is the reasonable rule ; for if he was to recover the value of an outstanding mort- effect, are the cases of Batohelder v. Sturgis, 3 Cusli. (Mass.) 301, and Wether- bee V. Bennett, 2 Allen (Mass.), 430, supra. It should be noticed also of Phil- lips V. Reichert that, like many others heretofore referred to, it was not an action on the covenant, but its breach was set up as a defence to payment of the purchase-money. ' Thus, while in Rolph v. Crouch, LawK. 3 Ex. 44, referred to supra (which, it must be borne in mind, was a case between landlord and tenant), the jury were suffered to let the loss of the purpose for which the property had been leased enter into the measure of damages, there was no pretence of rescinding the contract upon that ground in a court of law. ^ Vane v. Lord Barnard, Gilb. Eq. 7, per Lord Cowper ; see this case supra, p. 91, n. 3 7 Johns. (N.Y.) 358. ■• It also appeared that the defendant was insolvent and unable, to pay any part of the mortgages. THE MEASURE OP DAMAGES. 289 gage, the mortgagee might still resort to the defendant on his personal obligation and compel him to pay it ; ^ and if the pur- chaser feels the inconvenience of existing incumbrances, and the hazard of waiting until he is evicted, he may go and satisfy the mortgage and then resort to his covenant." ^ This case has been frequently cited and appi'oved, and the rule that nominal damages only are to be recovered for a merely technical breach of the cove- nant against incumbrances is supported by the entire weight of authority.^ ' The suggestion 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 Conn. 255, and Brooks V. Moody, 20 Pick. (Mass.) 474. In Stanard v. Eldridge, 16 Johns. (N. Y.) 254, it was said, " It is supposed that this principle is not applicable here, for it is stated in the case that no bond was given ; still the mortgagor might be sued on the covenant to pay the money wWcb 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 covenantee must pay and satisfy them." '^ So, in Bratnan v. Bingham, 26 N. Y. 494, the premises were conveyed with a covenant that they were free from all incumbrance except three mortgages, amounting in the aggregate to $12,400. The plaintiff proved that the mortgages amounted to $12,800, and that he had paid $3,000. " The existence," said the court, " of $400 of incumbrances in excess of the amount named in the cove- nant constituted a breach of the covenant, and entitled the plaintiff to nominal damages, without having made any payment. Such covenant is broken as soon as made, if ever. When the plaintiff paid the excess of $400, he became enti- tled to recover that amount as damages for the breach." ' Bean v. Mayo, 5 Greenl. (Me.) 94; Randell v. Mallett, 14 Me. 51 ; Her- rick V. Moore, 19 id. 313 ; Clark v. Perry, 30 id. 151 ; Read v. Pierce, 36 id. 465 ; Richardson v. Dorr, 5 Vt. 20 ; Willson v. Willson, 5 Foster (N. H.), 235 ; Smith V. Jefts, 44 N. H. 482 ; Davis v. Lyman, 6 Conn. 255 ; Prescott v. True- man, 4 Mass. 627 ; Wyman v. Ballard, 12 .d. 304 ; Jenkins v. Hopkins, 8 Pick. (Mass.) 348 ; Leffingwell v. Elliot, id. 457 (s. c. 10 id. 204, infra. Tufts v. Adams, id. 549 ; Brooks v. Moody, 20 id. 476 ; Comings v. Littie, 24 id. 269 ; Pitcher v. Livingston, 4 Johns. 10 ; Delavergne v. Norris, 7 id. 358 ; Hall v. Dean, 13 id. 105 ; Stanard v. Eldridge, 16 id. 254 ; Baldwin v. Munn, 2 Wend. 405; Stewart v. Drake, 4 Halsted (N. J.), 141; Patterson v. Stewart, 6 Watts & Serg. 528 ; Foote v. Burnet, 10 Ohio, 317 ; Whisler v. Hicks, 5 Blackf. (Ind.) 102 ; Smith ». Ackerman, id. 541 ; Pomeroy v. Burnett, 8 id. 143 ; Brady V. Spurck, 27 111. 478; Willets v. Burgess, 34 id. 500; Pillsbury v. Mitchell, 5 Wis. 21, citing the text. In Reasoner v. Edmundson, 5 Ind. 393, where a paramount mortgage had been foreclosed, this course of decision was carried so far as to hold that although "the mortgage did constitute a breach of the covenant that the property was unincumbered, yet for this breach only nom- inal damages were recoverable till after the purchaser has been evicted." See 19 290 THE MEASURE OP DAMAGES. But as nothing is better settled than that upon a covenant of indemnity, strictly so called, if the covenantee sue before loss has been sustained, the verdict must be for the defendant, and also that such verdict will be no bar to a subsequent recovery after loss has been sustained, it may be reasonably asked why, if the cove- nant against incumbrances be as to the measure of damages, treated as a covenant of indemnity, should there be a recovery of even nominal damages if no loss has been sustained, and will such recovery be a bar to a future action ? The answer to this is purely technical ; in nearly all of the United States the covenant is regarded as a covenant in prcesenti, and broken as soon as made, being " single, entire and perfect in the first instance," ^ and of course the right of action, and the right to damages instantly accrues, and although, as has beeu seen, the plaintiff has been allowed to extinguish the incumbrance after suit brought and to measure his damages by the amount so paid, yet where such is not the case and the incumbrance has inflicted no actual injury, though the right of action may be perfect, the right to damages is but nominal.^ And, as has been already said, inasmuch as a recovery of even as to covenants of indemnity generally, Cbace v. Hinman, 8 Wend. (IT. Y.) 452 ; Koekfeller v. Donelly, 8 Cowen (N. Y.) , 618, questioned in Aberdeen v. Blaekmar, 6 Hill (N. Y.), 324 ; Gilberts. Wiman, 1 Comst. (N. Y.) 563 ; Jetfers V. Johnson, 1 Zabr. (N. J.) 73. In the first of these cases the covenant was for indemnity against liability, which distinguishes it therefore from the others. (In the recent case of Conner v. Beam, 43 N. H. 202, this distinction was elaborately noticed). The student will, of course, observe the difference between a covenant of indemnity against incumbrances and a covenant to dis- charge of incumbrances. See supra, p. 94. ' 4 Kent's Comm. 472, and see fully as to this subject, infra, Ch. X. ^ Thus, as was said in Smith v. Jefts, 44 N. H. 482, " this covenant, being in prcesenti, was broken as soon as it was made, and a right of action at once arose to the plaintiff to recover such damages as he sustained. If he extin- guished the incumbrance by the payment of a reasonable sum, he might add that to his damages, even though paid after the commencement of his suit ; but if not extinguished at the time of the assessment of the damages, he could not so add the amount, but would be entitled to nominal damages only; Osgood v. Os- good, 39 N. H. 209; Willson v. Willson, 5 Foster (N. H.), 235; Brooks v. Moody, 20 Pick. (Mass.) 474 ; Thayer v. Clemence, 22 id. 493 ; Clark v. Swift, 3 Met. 390 ; 4 Kent Com. 471, 472 ; 2 Washb. R. P. 649. The right of action, then, was perfect in the plaintiff immediately on the delivery of the deed, and the subsequent extinguishment of the incumbrance by either party could only affect the damages and not the right of action." THE MEASURE OP DAMAGES. 291 nominal damages can be pleaded in bar of any action whicli miglit be subsequently brought, since there can be but one recovery for one breach,^ the practical uselessness in many cases of the cove- nant, as a covenant of indemnity, is sufficiently apparent.^ Where the incumbrance cannot be extinguished or removed by purchase, it has been often said, in a general way, that the damages are to be estimated by the jury according to the injury arising from the existence of the incumbrance.^ If the incumbrance be an easement or servitude, the damages may, upon well-settled principles, be based upon the natural and proximate consequences to the plaintiff of the existence and con- tinuance of the incumbrance.* Thus where tlie incumbrance was ' Supra, p. 265. '' A good illustration is afforded by the case of Read v. Pierce, 36 Me. 460, where the defendant had conveyed to the plaintiff certain premises with cove- nants for seisin, of right to convey, against incumbrances 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 defence as against the cove- nant of warranty, of which there was no breach until eviction, and therefore no existing claim provable before the commissioner of bankruptcy (as to which see infra, Ch. XIII.) ; but that as to the covenant against incumbrances the discharge was a bar, as although the covenantee had not paid off the mortgage, yet he might have proved his claim before the commissioner, although only nominal damages would then have been allowed him. ' Prescott ». Trueman, 4 Mass. 630 ; Harlow v. Thomas, 15 Pick. 69 ; Batch- elder V. Sturgis, 3 Cush. (Mass.) 205 ; Hubbard v. Norton, 10 Conn. 422 ; Willson V. Willson, 5 Foster (N. H.), 229; Porter v. Bradley, 7 R. I. 542 ; Giles v. Dugro, 1 Duer (N. Y.) , 335 ; see Dexter v. Manley, 4 Cush. (Mass.) 14, supra, p. 254, «. ; Mills v. Catlin, 22 Vt. 106. * Greene v. Creighton, 7 R. I. 10 ; Harlow v. Thomas, 15 Pick. (Mass.) 66. This would, of course, exclude evidence as to the effect of the in- cumbrance upon any special purpose or use peculiar to the owner which had not formed the basis of the contract ; Hadley v. Baxendale, 9 Exch. 353 ; Greene v. Creighton , S!«p)'a ; Batchelder v. Sturgis, 3 push. (Mass.) 201; Wetherbee v. Bennett, 2 Allen (Mass.), 430. In this last case the distinction was thus clearly noticed by Hoar, J. : " In Batchelder e. Sturgis it was held that evidence was inadmissible that the purchase was made with a particular view to a resale, and that the opinion of experts of the effect of the incumbrance upon a sale could not be given to the jury. In that case the incumbrance was a lease, and it was considered that an opinion upon the effect of a lease upon a sale would be, in its nature, imaginary and conjectural, and therefore of no value. But in the case at bar the plaintiff was not allowed to show that he purchased the estate for the purpose of selling it again ; and the incumbrance being an ease- ment, which impaired the permanent value of the estate for all purposes and 292 THE MEASURE OF DAMAGES. a right of way over the land which subsisted at the time of the conveyance and for some time after, the court said, in a recent case in Massachusetts, " The defendant contended that the evidence showed that the plaintiff had never been disturbed in the enjoyment of his estate by any user of the way, and that the rights of way had been extinguished without expense, and asked that the jury should be instructed to return a verdict for nominal damages only, but the judge declined to give these instructions. It does not follow from these facts that no actual damages had been sustained. While the right of way lasted, the plaintiff was precluded from using the part of the land covered by the way as fully as he might otherwise have done. He could not set a tree, or a post, or a building upon it, or enclose or cultivate it, or sell or lease it to any person to whom such an incumbrance would be objectionable. It was an apparently permanent subtraction from the substance of the estate." ^ If the incumbrance be an unexpired term of years, it has been held that " the extent of that term and the annual value, or the interest of the purchase-money, should be the measure for damages ; " ^ or, as has been said more precisely, " in the case of uses, the opinion of skilled witnesses as to the difference in market value occasioned by the incumbrance was rightly admitted. The fact that an estate can be sold is one of its elements of value, and is not to be excluded from consideration ; though it is not to be considered as a reason for enhancing damages, that the purchaser acquired it ibr the special purpose of selling it again directly.'" Indeed, if such an element were admitted into the question of damages, no purchaser could ever be safe, because, except in the case of a lease, and more especiall}' that of an improving lease, or, what is for this purpose practically much the same thing, the sale of land upon a fee farm rent to be secured by the erection of buildings, the purpose for which the purchase is made, although communicated to the vendor, does not in general enter into the consideration between the pai'ties. See supra, p. 266. ' Wetherbee v. Bennett, 2 Allen (Mass.), 429. " Eickert v. Snyder, 9 Wend. (N. Y.) 423. The jury had, on the trial, been directed to assess the damages by the consideration-money paid for 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 seisin 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 incumbrances in the deed, the covenants being for quiet enjoyment and of warranty, but the case is here introduced as illustrative of the principle. In Batchelder u. Sturgis, 3 Cush. (Mass.) 205, the Supreme Court of Massachusetts, in referring to Rickert v. Snyder, said, "This rule may do justice in some, perhaps in many cases, but this court is not prepared to adopt it as a THE MEASURE OF DAMAGES. 293 an unexpired term or lease, the rule is the fair rental value of the land to the expiration of the term." ^ So where the premises were incumbered by a life-estate, it was considered that the measure of damages was " the value of the estate for tlie time during which the purchaser was kept out of enjoyment by reason of the incum- brance ; " ^ and when tliis time has not expired at the date of the trial, the ordinary life-tables have been held admissible in evidence to show the value of the incumbrance.^ In cases where the defect of title or the incumbrance has or could be obtained or removed by purchase, it is considered that the plaintiff is entitled to recover the amount which he has fairly and reasonably paid for that purpose,* the burden of proof being upon him to show what the outstanding title or incumbrance was general rule. Where the incumbrance has been removed, the general rule in this court fixes the damages at the amount paid to remove the incumbrance. . . . The rule is, that for such incumbrances 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 practicable, it seems impossible to establish any more precise general rule in this class of cases. Cases must go to the jury for an assessment of damages on this general principle, and with such instructions as may be proper and applicable to the circumstances of each case. One of the modes in which the damages may be assessed is the annual value, and may perhaps be found to be the just rule in this case." ' Porter v. Bradley, 7 R. I. 642. 2 Christy v. Ogle, 33 111. 295 ; and where, in McAlpin v. Woodruff, 11 Ohio State R. 120, the plaintiff who was in possession under a lease for years renew- able forever, had withheld one-third of the rent, in order to meet the assignment of dower to the lessor's widow of one-third of the premises, it was held that his damages could be but nominal. = Mills V. Catlin, 22 Vt. 106. ' Spring V. Chase, 22 Me. 505 ; Reed v. Pierce, 36 id. 455 ; Willson v. Willson, 5 Foster (N. H.), 235; Davis v. Lyman, 6 Conn. 255; Wyman v. Bridgen, 4 Mass. 150 ; Wyman v. Ballard, 12 id. 304 ; Chapel v. Bull, 17 id. 221 : Tufts V. Adams, 8 Pick. (Mass.) 549 ; Brooks v. Moody, 20 id. 475 ; Comings v. Little, 24 id. 266 ; Batchelder v. Sturgis, 3 Cush. (Mass.) 205 ; Waldo V. Long, 7 Johns. (N. Y.) 173 ; Delavergne v. Norris, id. 358 ; Hall v. Dean, 13 id. 105; Stanard v. Eldridge, 16 id. 254; Baldwin v. Munn, 2 Wend. (N. Y.) 405 ; Stewart v. Drake, 4 Halsted (N. J.), 141 ; Funk v. Voneida, 11 Serg. & Rawle (Pa.), 112; Brown v. Brodhead, 3 Whart. (Pa.) 104; Cane v. Allen, 2 Dow, 296, per Lord Redesdale; Henderson v. Henderson, 13 Mo. 152; The City u. Bissell, 46 id. 160, citing the text; Snyder v. Lane, 10 Ind. 424; Hurd v. Hall, 12 Wis. 112; Bailey v. Scott, 13 id. 620; Eaton v. Tall- madge, 22 id. 528 ; McGary v. Hastings, 39 Cal. 360 ; Burk v. Clements, 16 Ind. 132 ; Brandt v. Foster, 5 Iowa, 287 ; Baker v. Corbett, 28 id. 320. 294 THE MEASURE OF DAMAGES. really wortli, the mere fact of payment being, in general, no evi- dence whatever of this,i and in the absence of such evidence, it seems that only nominal damages can be recovered.^ ' In Lawless v. Collier, 19 Mo. 480, Collier had, for the consideration of $2,668, sold certain land to Gamble, with a covenant for seisin. Gamble subse- quently conveyed this title to Mills, and afterwards discovered a paramount title in the heirs of Stoddard, which was then held by one Lawless, and which he purchased for the sum of $1,000 and the assignment to Lawless of his {Qamble's') right of action against Oollier. By means of such purchase Gamble was enabled to perfect the title which he had conveyed to Mills, and suit was then brought against Collier upon this covenant for seisin in the name of Gamble to the use of Lawless. The court below held that the measure of damages was the sum paid by Gamble to Lawless for the estate he thus acquired with interest, but this in- struction was reversed on writ of error. " Under the peculiar circumstances of this case," said Scott, J., who delivered the opinion, " what is the measure of damages ? Can it be said that the purchase-money paid by Gamble to Lawless is the just measure? Was it by the payment of the sum of $1,000 only that Gamble was enabled to secure the title or possession of his vendee, and thereby prevent a recourse against him on his covenant P Such an assertion is not warranted by the facts. We cannot say that Lawless, in making a sale of his land, did not regard the covenants of Collier as worth the full sum which they were given to secure. He did not convey to Gamble the identical land that Gamble had conveyed to Mills. His conveyance of itself did operate but partially to secure Gamble, and thereby destroy his recourse against Collier for his purchase-money. It was by acts of Gamble, subsequent to Lawless' convey- ance, that his vendee's title was perfected. What right had Gamble then to adopt a course 'of conduct which would have impaired the recourse of Lawless' trustee on the covenants which had been assigned to him for the benefit of Virginia Lawless. In so doing he would have injured the plaintiff, and have de- stroyed a part of the consideration he had given to Lawless for his interest in the Stoddard claim. Would not Gamble then have been liable to Virginia Lawless for the destruction of the right which he had assigned for her benefit. This is the consequence flowing from holding that the $1,000 paid by Gamble to Lawless should be the measure of damages in this action. This would be unjust to Gamble. It would be placing him in the attitude of a wrong-doer to the plain- tiff, whilst performing an act dictated by considerations of justice to himself and to those to whom he was under obligations to indemnify. Is it not more just that Collier should refund the money he has received from Gamble, the consider- ation of which has entn-ely failed, than that Gamble should be placed in the con- dition of enriching himself at the expense of another ? No one can say that, without the assignment of the covenants in Collier's deeds, Gamble ever would have been enabled to obtain Lawless' interest in the Stoddard claim. We know not how those covenants were estimated. No rule is known by which their value ' Harlow v. Thomas, 15 Pick. (Mass.) 69 ; Anderson v. Knox, 20 Ala. 156 ; Dickson v. Desire, 23 Mo. 167; Pate v. Mitchell, 23 Ark. 690. THE MEASURE OP DAMAGES. 295 But the proposition that the plaintiff is entitled to recover the amount which he has thus paid, must, it seems, be taken with the qualification that this amount must not exceed the consideration- money and interest in those States in which, on the covenants for quiet enjoyment and of warranty, the limit of damages is the same as on the covenant for seisin. This was first decided in Dimmick V. Lockwood,^ where the application of the rule was one of some hardship. The premises had been conveyed by two tenants in common to the plaintiff, in consideration of $250. He made im- provements which increased the value of the land to $2,000, and afterwards one undivided half of this property was sold under an execution upon a judgment for $3,344, which was held against one of the tenants in common. The plaintiff brought an action on his covenant against incumbrances, in which the defendants in their plea tendered the sum of $125, the half of the consideration- money paid, and contended that this must be the limit of damages. The plaintiff urged that he was entitled to recover an amount suf- ficient to indemnify him for the loss he had sustained, and that inasmuch as, under the authorities just referred to, 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-money. It was said by the court that no similar case was to be found in the books. Those arising on cove- nants against incumbrances had been cases where the incumbrance was less than the consideration-money, and in them there was little difficulty. But it had been often and conclusively settled that a purchaser could not increase his damages by reason of improve- ments, which the plaintiff would indirectly seek to do by the doc- trine contended for. "It may be asked," said Savage, C. J., who delivered the opinion, " to what extent may a purchaser go under such circumstances in creating a claim against his vendor ? Sup- 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 assignment by Gamble of the covenants in Collier's deeds, it is meant the assignment of the right of action upon those covenants, — of the right to use Gamble's name in a suit against Collier; for the covenant for seisin, being held in America to be broken as soon as made, is of course incapable of direct assignment. This will appear from the previous report of the case in 10 Mo. (Gamble v. Collier) which should be read in connection with the above opinion, ' 10 Wend. (N. Y.) 142. 296 THE MEASURE OP DAMAGES. pose the plaintiff, instead of building a house, had paid $3,000, and brought this suit to be reimbursed, he would bring himself within the language of some of the judges who say that a purchaser is entitled to recover what he has paid, and yet I apprehend he would not be permitted to recover that amount. But suppose, again, what is probably the real state of this case, two persons are tenants in common of an acre of ground worth $100, one a wealthy man and the other insolvent ; being tenants in common, they unite in a conveyance with the usual covenants ; can the purchaser pay a lien of $3,344, a debt due by the insolvent, and recover it from his tenants in common, who may have no earthly connec- tion with him ? I state this case hypothetically, to show how the rule contended for by the plaintiff may work the height of in- justice to a mere stranger. . . . Among all the cases cited, there is none in our own court wliere the purchaser has been permitted to recover beyond the consideration, and interest, and costs. There is none in Massachusetts, where, under the covenant against incumbrances, the purchaser has recovered any more, though there the rule allows a recovery for the value at the time of eviction. All the reasons of our own judges go to limit the responsibility of the grantor to the consideration with interest and costs, and I am unwilling to go further where the principles to be established may lead to great injustice." A subsequent case in Ohio was decided upon the same principle.-^ The consideration paid was $1,020, and the purchaser had ex- tinguished an incumbrance amounting to $1,773.95, which sum he claimed as his measure of damages. But it was said by the court, " If tliis be correct, then upon this covenant a recovery to a much greater amount may be had than upon the covenant of warranty, which is ever considered the principal covenant in a deed. ... If, in the present action, he can recover this amount with interest, he recovers more than he would have done had he entirely lost the land. There would seem to be some inconsistency in this." After refer- ring, then, to the case of Dimmick v. Lockwood, it was said : "After full consideration and careful examination, we have been led to the conclusion that the law is as laid down in this case. That the true measure of damages in an action for the breach of the cove- nant against incumbrances is the amount paid to remove the in- ' Foote V. Burnet, 10 Ohio, 334. THE MEASURE OP DAMAGES. 297 cumbrance, with interest, provided the same do not exceed the purcliase-money and interest. But in no case can a purchaser recover greater damages for the breach of any of the ordinary covenants in his deed, than for a breach of the covenant of war- ranty." The rule adopted in Dimmick v. Lockwood has been since affirmed in New York, and approved elsewhere. ^ While it seems to have been correctly stated in the opinion in that case that there had been, at that time, no case actually decided in Massachusetts where the purchaser had been suffered to recover more than the consideration-money for a breach of the covenant against incumbrances, yet, judging from the re- marks in recent cases in that State and others in New England, where upon the covenants for quiet enjoyment and of warranty the value of the land at the time of eviction forms the measure of damages, there can be little doubt that in a case similar to Dimmick v. Lockwood the limit of the recovery would be ex- tended beyond 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 ■ Grant v. Tallman, 20 N. Y. 191 ; Cox v. Henry, 8 Casey (Pa.), 21 ; Will- son «. Willson, 5 Foster (N. H.), 229 ; Brady v. Spurck, 27 111. 482. ' In Chapel v. Bull, 17 Mass. 221, no question arose as to increased value of the land. One of two tenants in common sold his undivided half, covenanting against incumbrances, while proceedings in partition were pending under which the premises were subsequently sold, and a deed made to the purchaser. In an action on the covenant against incumbrances, it was held that the measure of damages was the whole consideration-money and interest (accord. Willson v. Willson, 5 Foster (N. H.), 236). This case, therefore, obviously decided, as was subsequently said in Jenkins v. Hopkins, 8 Pick. (Mass.) 349, that, "on a breach of the covenant against incumbrances, where the incumbrance was changed into a title adverse and indefeasible, the plaintiff was entitled to recover the money he had paid for the land, with interest. For in such case the estate conveyed is entirely defeated, and the purchaser cannot remove the in- cumbrance, nor can he enter upon and enjoy the land ; and it would be idle to require him to purchase it, in order that he might be entitled to his damages for the breach of the covenant against incumbrances. Indeed, such a state of facts comes very near proving an actual eviction, and falls short of it only because there has been no actual possession by the grantee, so that he cannot be evicted. And this constitutes a difference between cases of this kind and the common cases of mortgage, attachment, or rights of dower, which may be removed by the grantee, and the amount of his damages ascertained in • that way. The principle, which constitutes a difference between the case of Chapel V. Bull and the cases in which it has been held that for a breach of the 298 THE MBASUEB OP DAMAGES. be no doubt that if it were accompanied with a covenant for quiet enjoyment or of warranty, the damages would be assessed as for a breach of those covenants, and by that means the purchaser receive allowance for improvements.^ As to the measure of damages upon a breach of the covenant for further assurance there is little authority to guide us, redress upon this covenant being generally sought in equity.^ In the case of King v. Jones,^ a woman being seised of certain premises, mortgaged them for £300. She subsequently married, and her covenant against incumbrances nominal damages onlj' can be recovered, unless the incumbrance had been removed, is, that in the latter case, the plaintiff is in possession of the estate, is undisturbed in the enjoyment, and may remain so ; whereas, in the former case, and that now before us, the plaintiff is not in pos- session, nor can he enter without being a trespasser upon one who has the title, and who is presumed to be in possession according to his title.'' At the present day, however, the facts in Chapel v. Bull would, according to the weight of authority, clearly amount to an eviction. ' Norton v. Babcock, 2 Met. (Mass.) 619 (see this case, supra, p. 272) ; Elder v. True, 32 Me. 104. Mr. Sedgwick, in that part of his Treatise on the Measure of Damages which refers to these covenants (p. 180), considered the case of Dimmick v. Lockwood to be open to much observation, and greatly to diminish the value of the cove- nant against incumbrances. " By surrendering the property to the previous incumbrance, a valid claim may always be created, to the extent of the consider- ation-money, and to this it seems the recovery under this covenant is in every instance to be limited. A ease may, however, easily be imagined, where the incumbrance is well known, where the consideration-money is a fair representative of the value without the incumbrance, where the grantor agrees to remove it, and the covenant against incumbrances is inserted for the express purpose of making it certain that he will do so. In such a case the application of this prin- ciple would be extremely inequitable. For it must not be forgotten that the severity of the arbitrary rule which declares the consideration named in the deed to be the actual price paid, is but little mitigated by the permission given to the parties to contradict it by parol proof. Such evidence, after the lapse of a few years , will generally be difficult of production, in many cases impossible, and the mere burden of proof is always a serious responsibility." It 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 value ; in both of which cases, we have seen the decisions in New York, and in most of the States, allow no increase of damages by reason of those circumstances, and it seems, therefore, rather with this doctrine than with the decision in that case that fault should be found. "^ Infra, Ch. XV. ' 6 Taunton, 418. THE MEASURE OP DAMAGES. 299 husband and herself, in consideration of £300 paid to the mortgagee and of £855 paid to themselves, joined with the mort- gagee in the conveyance of the premises, by deed of lease and release to the plaintiff's ancestor, the husband covenanting for himself and his wife for further assurance. This conveyance was of course inoperative to pass the title of the wife, by reason of no fine being levied for that purpose. After the death of the wife, her devisee filed a bill against the plaintiff, who was the heir of the grantee under this conveyance, praying to be let into possession, and that the plaintiff should be decreed to convey the same to him, on payment of what might remain due of the £300, after account- ing for the rents and profits, and a decree and reconveyance were made accordingly, upon which the plaintiff brought suit against the executor of the husband, who had been the covenantor in the deed.' On the ti-ial it appeared that the grantee had in his lifetime, and in that of the wife, requested the husband to procure the fine to be levied, which the latter during a course of eighteen months assured him was being done. A verdict was found for £955, con- sisting of £855, — so much of the purchase-money as the plaintiff had not been repaid as assignee of the mortgage under the decree, — and £100 interest; upon which the defendant moved, first, in arrest of judgment, on the ground tliat the 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 entitled to the £100 interest, for it was the plaintiff 's own laches that he did not sue instantly on the eviction, in which case no interest would have accrued. Upon the last point, the court observed that the plaintiff was entitled upon this same declaration to recover damages for all the time past, during which he had been kept out of the possession of the estate, and therefore, as he would be entitled to an equivalent or greater sum under another name, it would be useless to grant a rule upon that ground ; ^ and upon the motion in arrest of judgment, it was ' In the course of the argument, Mansfield, C. J., said : " In the 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 difficulty upon that point ; " but in delivering the opinion of the court, Heath, J., said : " The ancestor paid his purchase-money, relying on the vendor's covenant ; he required him to per- form it, but gave him time and did not sue him instantaneously for his neglect, but waited for the account. He was to do so until the ultimate damage was sus- tained, for otherwise he could not have recovered the whole value." 300 THE MEASURE OF DAMAGES. decided that the ultimate damage not having been sustained in the time of the ancestor, the action remained to the heir (who repre- sented the ancestor in respect of land, as the executor did in respect of personalty) in preference to the executor.^ It is presumed that, on this side of the Atlantic, if the analogy to the rules which govern the measure of damages on the other covenants for title were observed, the mere refusal to execute the further assurance would not of itself entitle the plaintiff to more than nominal damages, unless it should appear that by such refusal the plaintiff had sustained the ultimate damage that might ever occur to him by reason of that refusal.^ Interest upon the amount of the consideration-money is allowed to the plaintiff as part of his damages, in order to counterbalance the claim for mesne profits which the owner of the paramount title may recover.^ Every endeavor is, however, made by the courts to limit the recovery of interest within the bounds of a recovery of the mesne profits by the true owner.* Thus if the statute of limitations prevent a recovery of these for more than a certain number of years back, interest will be allowed for no longer time,^ and although, in a case in Massa- 1 This part of the case, • — the question whether the heir or the executor is the party entitled to sue upon the covenants for title, — is considered infra, Ch. X. ^ This was so stated by the court in Burr v. Todd, 5 Wright (Pa.), 213, but only on the authority of the text, and it was not one of the points decided in the case. = Staats !). Ten Eyck, 3 Caines (N. Y.), Ill; Winslow v. McCall, 32 Barb. (N. Y.) 241 ; Partridge v. Hatch, 18 N. H. 494; Sumner v. Williams, 8 Mass. 222 ; Reese v. M'Quilkin, 7 Ind. 452 ; Brandt v. Foster, 5 Iowa, 295 ; McNear u. McComber, 18 id. 12 ; Downer v. Smith, 38 Vt. 464. * Guthrie u. Pugsley, 12 Johns. (N. Y.) 126 ; Winslow e. M'Call, 32 Barb. (N. Y.) 241 ; Partridge v. Hatch, 18 N. H. 494 ; Flint v. Steadman, 36 Vt. 210 ; Downer v. Smith, 38 id. 464 ; Patterson v. Stewart, 6 Watts & Serg. (Pa.) 528 ; Kyle «. Fauntleroy, 9 B. Mon. (Ky.) 620 ; Williams v. Beeman, 2 Dev. (N. C.) 485; Rich v. Johnson, 1 Chandler (Wis.), 20. ' Caulkins v. Harris, 9 Johns. (N. Y.) 324; Bennet u. Jenkins, 13 id. 50; Ela V. Card, 2 N. H. 175 ; Clark v. Parr, 14 Ohio, 118 ; Lawless v. Collier, 19 Mo. 486. In Patterson v. Stewart, 6 Watts & Serg. (Pa.) 527, the statute of limitations does not appear to have been applied. The plaintiff in that case had, in 1817, pur- chased a lot which was subject to an incumbrance, under which it was sold in 1822. THE MEASURE OF DAMAGES. 301 chusetts,^ it was denied that any such limitation of the allowance of interest had ever been sanctioned in that State, yet it was suggested by the court and aquiesced in by counsel that the equi- table rule of damages would be to allow the plaintiff to recover tlie purchase-money so far as there was no seisin, with interest, deducting the profits received by liim for which he was not respon- sible to his co-tenants in common.^ No possession was, however, taken by the sheriff's vendee till 1831. In an action on the covenant against incumbrances, implied by the words " grant, bargain, and sell,'' and on the covenant of warranty, the plaintiff contended that the former covenant being broken as soon as made, he was entitled to interest from the year 1817 ; while the defendant urged that he should be responsible only from the year 1831, when possession was taken. The court, however, properly decided that neither of these positions was correct. "The incumbrance," said the court below, whose opinion was affirmed on error, " did not divest the plaintiff of the possession or title to the property until final judgment was obtained, and the property levied on and sold by the sheriff. Previous to that time the damage was merely nominal ; at least, if there was any actual damage, it is not laid in the declaration nor proved. But when the sheriff's deed was made, the title was absolutely divested, and the damage no longer contingent. The plaintiff was not bound to incur the expense of an ejectment, and might justly abandon all claim to the property. Prom that time, then (1822), he is entitled lo interest on his purchase-money." Apart from the non-application of the statute of limitations, this decision is perfectly sound, and the statute may not have been pleaded ; and in the more recent case of Cox v. Henry, 8 Casey (Pa.), 19, this decision was cited as supporting the position that the statute of limitations protected the purchaser against the claim for mesne profits, except for the six years imme- diately before the commencement of the action, and it was held that interest upon the consideration-money was recoverable to the extent of the mesne profits. The same principle was applied in Kyle v. Fauntleroy, 9 B. Mon. (Ky.) 620, where the defendant's intestate had, in 1807, conveyed 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 same. ' Whiting V. Dewey, 15 Pick. (Mass.) 428. " In Spring v. Chase, 22 Me. 505, the plaintiff had been obliged, about seven- teen years after his purchase, to buy in an outstanding paramount title, and the court held that he was entitled to recover the amount paid by him to perfect the title, with interest from the time of this payment. In opposition to the claim for interest, the defendant urged that during no time had the plaintiff actually received any rents or profits from the premises, but the court said that whether the vendee turned his purchase to a profit or a loss was no concern of the vendor, since, " if a person purchase real estate, it is to be presumed that he does so 302 THE MEASURE OP DAMAGES. It is evident, however, that, so far as this allowance of interest is concerned, the plaintiff must, to some extent, recover from his because its rents and profits will be equivalent to the interest of the money he may be content to pay for it." This case, it will be observed, so far from impugning the rule already mentioned with respect to interest, which at first sight it might appear to do, is in strict accordance with it, since the plaintiff 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 the whole title ; while he was allowed interest from that time, because that might be presumed equal to the rents and profits he had a right from thence to expect. But in Lawless v. Collier, 19 Mo. 486, these views were considered to be subject to much qualification when applied to unimproved land. " We can almost feel the inconvenience," said the court, " of telling the vendor, when he is sued for the purchase-money he has received, that he shall pay interest, and yet be allowed nothing for the rents and profits the vendee has derived from the possession, for the reason that the vendor had no title and his vendee is liable over to the true owner. We know that nine times in ten this liability over to the real owner is a mere bugbear. When improved lands are sold, the rent of the land and the interest of the money are supposed to counter- poise each other. In this State many invest their money in unimproved lands, relying on the increasing value of the land as an equivalent for the interest of the money invested. Purchases may also be made, in which this latter induce- ment may be blended with a desire to obtain land but partially improved. In case, therefore, of unimproved land, it would be unjust to say, in this State, as has been said elsewhere, that, whether the vendee turned his purchase to a profit or a loss, was no concern of the vendor, since, if a person purchase real estate, it is to be presumed that he does so because its rents will be equivalent to the interest of the 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 is to be recovered in suits on covenants for seisin. When the possession obtained 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 liable over to the real owner for the rents and profits, it would be unjust to allow him full interest on the purchase-money. Where the possession has not been beneficial, and it may be inferred that it is contemplated by the parties that it would not be so, justice requires that interest should be allowed from the time of the payment of the purchase-money." In Anderson v. Arrowsmith, 2 Perry & Davison, 408, the vendor had, on the sale of a life-estate, given a covenant for quiet enjoyment and a bond of indemnity with sureties against all costs and claims, and the plaintiffs having averred that they had been obliged to pay a prior annuity which had been charged upon the land, and given the holder a right to enter for non-payment, claimed to recover back the amount thus paid with interest for some years ; it was left to the jury to say whether they had not been guilty of negligence in not proceeding against the sureties until after they had become insolvent, and the jury having found that they might have recovered from the sureties, the interest was not allowed, Denman, C. J., saying, "If promptly obtained from the surety and promptly repaid out of the defendant's THE MEASURE OP DAMAGES, 303 covenantor a certain compensation for a loss wliicli has not actually happened, unless in the single case where the paramount owner has, prior to the recovery upon the covenant, actually recovered the mesne profits from the covenantee. Mr. Sedgwick has re- marked as to this, ^ " It may still be doubted whether interest should be allowed in any case where the property has been enjoyed by the grantee, unless he has been actually compelled to pay the mesne profits.^ Interest is given to counterbalance the claim of the true owner for mesne profits, but even after eviction the loss of the mesne profits does not necessarily follow, as we have heretofore seen the law does not give actual compensation for probable loss." The law has, however, been otherwise held in a rather late case in New Hampshire, where it was said, " The profits of the land may be more or less than the interest money, and the real owner may or may not demand the mesne profits. And, on account of these uncertainties, it is impossible to establish a rule which will operate with perfect equity in all cases. But the rule which is most reasonable, and which will generally work the least injustice, seems to be founded upon the presumption that the profits and interest are equal, and that mesne profits will be re- covered by the owner ;" ^ and, indeed, if a recovery of mesne profits were refused because they had not been yet recovered from the covenantee and judgment should thereby be entered for the defendant, it could probably be pleaded in bar of any subsequent action on the covenant.* 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 Blake v. Burnham, 3 Williams (Vt.), 437, it was held that interest was only recoverable according to its legal rate, without regard to the amount of interest which the plaintiff had agreed to pay or the securities given by him for the purchase-money ; and in Drew V. Towle, 10 Foster (N. H.), 536, it was decided that interest could never be recovered by making rests at stated periods, but that simple interest alone was recoverable. ' Sedgwick on Damages (3d ed.), 170, n. ' And such was the decision in the late case of Benton v. Reeds, 20 Ind. 91. 'Foster v. Thompson, 41 N. H. 373, citing the text. •* See supra, p. 266. Upon this subject of the recovery of interest the fol- lowing remarks were made by Underwood, J., in Combs v. Tarlton, 2 Dana (Ky.) , 467 : " Where 'the profits of the land in possession of the vendee are of more value than the interest of the money enjoyed by the vendor, it is utterly unjust to allow the vendee to recover the purchase-money, with its interest, and to hold the profits of the land. If the vendee is evicted by an adverse para- 804 THE MEASURE OF DAMAGES. It not unfrequently happens that a purchaser is reluctant to abandon his purchase to a paramount claimant without a struggle, mount claim and becomes responsible to the evictor for the mesne profits, then he ought to recover interest from his vendor for as many years as he is or may be required to account to the evictor for the profits. But where the vendee is not bound to account for the profits of the land to any one, and where, as in this case, the profits greatly exceed the interest of the purchase-money, manifest injustice would result from permitting the vendee to recover interest, and like- wise to keep the profits. The principle upon which all contracts ought to be rescinded is, that the parties should be placed as nearly as possible in statu quo. If the contract between vendor and vendee is set aside by the Chancellor, he would never give interest to the vendee, and allow him also to keep the profits. On the contrary, he would say to the vendee, as you have enjoyed all you con- tracted for, and as the profits of the land are as valuable, or more so, than the interest on the purchase-money, you shall not have both ; but if you require a restoration of purchase-money and interest, you must restore, on your part, the land and its profits ; but, as by contract, you and the vendor regarded the land and purchase-money equivalent to each other, I (the Chancellor) will regard the use of each as of the same value, and take no account between you for interest or profits. This doctrine — where the land yields a profit, or can be made by such care, attention, and management as proprietors usually bestow to yield a profit equal to the interest on the purchase-money — is sustained by the clearest principles of reciprocal justice. But where the land yields no profit, and cannot be made to yield any, without improving it by the expenditure of money or labor, 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 restored by the vendor. In such a case the vendee generally regards the prospect of a rise or appreciation in the price of the land as the equivalent or consideration which he receives for the interest on the purchase-money, and if he cannot, in consequence of the default of the vendor, get the land, being deprived of the contemplated rise which constituted the leading motive for the contract, and receiving no esplees, or profits, the land not being in a condition to yield any, justice would require the restoration of the purchase-money, with interest, upon a rescission of the contract. The cases first decided by this court were, in all probability, of this description. " Whether the rules which would govern in chancery can be applied with safety to a trial at law, has been a subject of much consideration with the court. The rules of right ought to be the same in every tribunal, and should be so applied as to settle controversies with all practicable speed. To avoid the expense and delay of another suit would be desirable, if insuperable objections did not present themselves. There are, however, too many questions growing out of the rescission of a contract between vendor and vendee put into possession to allow them to be considered and settled by the jury upon the trial of an action of covenant. The vendor may be entitled to a set-ott' for the profits of the land, for waste and damage ; and against these claims the vendee may be entitled to an allowance for improvements. To settle such multifarious and complicated matters, the Chancellor is more competent to administer justice than the com- THE MEASURE OP DAMAGES. 305 especially if it has an increased value which cannot enter into his measure of damages, and the question arises, how far can the costs and expenses of litigating the title be included in the damages to be recovered upon the covenants ? Such expenses may be divided into three classes : first, the taxed costs of suit ; second, counsel fees ; and third, personal ex- penses ; and as to some or all of these there are cases which seem to decide that the right to recover them depends upon notice of the adverse action being given to the covenantor — there are others which support or deny such recovery independently of the question of notice — and, again, others which make the recovery dependent upon the answer or want of answer of the covenantor to such notice. So far as the taxed costs of suit are concerned, it is settled that as it would 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 his vendor undertook to convey, the former should be allowed, by way of damages, the taxed costs of any action by which he has reasona- bly sought to defend that title. Thus, in the leading case of Smith v. Compton, ^ judgment having been given, in an action on a covenant for good right to convey for the plaintiff on demurrer,^ the jury, on a writ of inquiry of dam- ages, included the sum of ^550, which the plaintiff had been obliged to pay by way of compromise to tlie paramount claimant, together with the plaintiff's costs as between attorney and client of the action brought by such claimant, it was urged, first, that the plaintiff was not entitled to recover what he had paid by way of compromise, having taken that step without notice to the cove- nantors, because the latter, had they had notice, might have settled the action upon better terms ; secondly, that without such notice mon-law judge, aided by the hasty inquiry of a jury. We shall therefore leave the rule at law to stand as we found it, and as recognized by the case of Cox V. Strode, 2 Bibb, 273. The vendee is entitled to his judgment at law for the amount of the purchase-money and interest, and then the vendor may resort to the Chancellor for a settlement of the rents, profits, waste, and improvements, and for such decree as equity requires;" see Hart v. Baylor, Hardin (Ky.), 599. ' 3 Barn. & Adolph. 407. In the previous case of Pomeroy v. Partington, 3 Term, 678, it appears by a note that the costs of an ejectment had been recovered as a matter of course. ' 3 Barn. & Adolph. p. 189, and see the case noticed infra, Ch. XH. 20 306 THE MEASURE OP DAMAGES. he ought not to have recovered the costs which he paid his own attorney for defending the action, because they might liave been less if tlie defendants had had the opportunity of bringing the cause to an earlier conclusion ; and, thirdly, the costs, at all events, should have been reckoned as between party and party, and not as between attorney and client ; ^ and a decision of Lord Tenterden at ' These English cases can be only understood by observing the distinction which there exists between "costs between party and party," and "costs as between solicitor and client." The former are thus referred to in the Chancery Orders of 14th February, 1860 : " Where costs are to be taxed as between party and party, the taxing master may allow to the party entitled to receive such costs all such just and reasonable expenses as appear to have been properly incurred in the service and execution of writs, and the service of orders, notices, petitions, warrants and summonses ; advising with counsel on the pleadings, evidence, and other proceedings in the cause ; procuring counsel to settle and sign plead- ings and such petitions as may appear to be proper to have been settled by counsel ; procuring consultations of counsel ; procuring the attendance of counsel in judge's chambers, or in the masters' offices, where the judge or master has certified the case to be proper for counsel to attend ; procuring evidence by deposition or affidavit, and the attendance of witnesses ; and supplying counsel with copies of or extracts from necessary documents. But in allowing such costs, the taxing master shall not allow to such party any costs which do not appear to have been necessary or proper for the attainment of justice, or for defending his rights, or which appear to have been incurred through over-caution, negligence or mistake, or merely at the desire of the party." " This extract," says a leading solicitor to whom the author wrote upon this subject, " shows what would be allowed as between party and party, that is to say, the costs of the proceedings themselves, such as the pleadings and steps taken in court or before the officials, and necessary to enable the same to be brought to a hearing. But costs, as between solicitor and client, mean every thing which can be charged in a lawyer's bill, including, of course, all his attend- ance upon his client or other people, with reference to the business ; all his cor- respondence, and all his charges for time and' labor devoted to the interest of his client. " But there is a further distinction in the sense of the expression ' costs as between solicitor and client,' where the costs have to be paid by a third person, not being the client himself; as, for instance, in the common case of the costs of a trustee, which are paid to the solicitor, not by the trustee himself, but out of the fund belonging to the cestui que trust, there the solicitor for the trustee would not get every charge allowed out of the fund, as of course. Say that the trustee, in his character of defendant in a suit, by his own delay, suffers himself to be put into contempt, it is quite fair that he, and not his cestui que trust, should bear the expense of his neglect ; though, as between the trustee and the solicitor employed by him, the trustee would be liable for the costs of purging the contempt. "Again, as between party and party, the rule is not to allow more than two THE MEASURE OF DAMAGES. 307 Nisi Prius was relied upon to the effect that " a man has no right, merely because he has an indemnity, to defend an action and to put the party guaranteeing to a useless expense," ^ but the court held, " The only effect of want of notice in such a case as this is to let in the party who is called upon for an indemnity to show that the plaintiff has no claim in respect of the alleged loss, or not to the amount alleged, that he made an improvident bargain, and that the defendant might have obtained better terms if the oppor- tunity had been given him. This was not proved here, and we cannot assume it. As to the costs, the plaintiff here had a right to claim an indemnity, and he is not indemnified unless he receives the amount of the costs paid by him to his own attorney." ^ In a very recent case in the Exchequer,^ where premises had been leased with a covenant for quiet enjoyment, an action of trespass was brought against the lessee under paramount title. Several notices of the action were given by the lessee to the landlord, who paid no attention to them, but gave no express authority to defend the action, which, nevertheless, the lessee did, and called the land- lord as a witness therein. A verdict for forty shillings damages counsel, but as between solicitor and client, five counsel, if retained by the instructions of the client, would be allowed. The taxing masters, moreover, exercise a discretion as to the amount of counsel's fee, in party and party taxation, ' and only allow such a sum as they think reasonable ; whereas, as between solici- tor and client, they have no discretion, and must allow the fee paid. ... As a general .rule, the costs, say of an action for debt, in which there are half a dozen witnesses to examine, and two counsel are retained, would, with regard to the difference as between party and party, and solicitor and client, be about two- thirds." It is familiar that the costs, as between attorney and client, often amount to a large sum. In Attwood v. Small, 1 Younge, 461; 6 Clark & Finn. 232 they had before the case was argued in the House of Lords, reached the sum of £10,000, and the author has known of recent cases in which they have more than doubled that sum. ' In Gillett v. Rippon, 1 Moody & Malkin, 406. " Per Tenterden, Ch. J., and Parke, J., in concurring, quoted the language of BuUer, J., in Duffield v. Scott, 3 Term, 374: "The purpose of giving notice is not in order to give a ground of action ; but if a demand be made, which the person indemnifying is bound to pay, and notice be given to him, and he refuse to defend the action, in consequence of which the person to be indemnified is obliged to pay the demand, that is equivalent to a judgment, and estops the other party from saying that the defendant in the first action was not bound to pay the money." ' Rolph V. Crouch, Law Kep. 3 Exch. 44. 308 THE MEASURE OF DAMAGES. having been found against the tenant, the latter sued his landlord on the covenant, and was allowed by the jury these damages, and the costs, £57 10s. 6c?., and " his own expenses," £70,i and this verdict was sustained by the court in banc.^ On this side of the Atlantic there are few States in which coun- sel fees, except perhaps to a very limited extent, are included in what are generally termed " taxed costs." Such costs have, how- ever, beeu held, in many cases, to be recoverable as part of the damages, although no notice of the adverse suit may have been given to the covenantor.^ ' That is to say, his own expenses incurred in defending the action brought by Cook, the holder of the paramount title. ^ " It is contended," said Kelly, C. B., " that the now plaintiff had no right to defend the action brought against him by Cook, and to incur the costs he did incur. But, applying our common sense to the matter, how does it stand ? The plaintiff was in possession of the premises, under a lease containing the defendant's covenant. Then Cook, claiming under the defendant, interrupts his enjoyment. What course was the plaintiff to adopt ? He had himself no knowledge whether there was a good title in his landlord, the now defendant, or not. The defendant alone knew that. This being so, the plaintiff gave the defendant notice that the action had been brought, and by that notice, in effect, requested the defendant's direction as to how to act. The defendant, however, remained silent, and left the plaintiff to do as he might think fit. I think it was the defendant's duty to have communicated with the plaintiff, and either to have said, ' I have a good title,' or else, ' I made the lease to you under a mistake, — I have no title ; you had better not defend the action.' The defendant, however, failed to perform that duty, and the plaintiff, accordingly, being left to himself, acted for the best, upon his own judgment. He acted bona fide, and giving credence to the defendant's warranty that he should quietly enjoy the property. Afterwards, on the trial of the action, it turned out that the defendant — as he must be taken to have known before — had no title to give such warranty. Under these circumstances, I am of opinion that the plaintiff was justified in the course which he took, and, there- fore, that the damages, costs and expenses which he incurred in the action brought against him by Cook are the natural and immediate consequence of the defend- ant's breach of covenant." Channell, B., concurred, but said: "I cannot say I consider the question as to the right to recover the costs incurred in the defence of the action of tres- pass brought against him by Cook so free from doubt as it appears to the Lord Chief Baron. If the defendant had authorized in express terms the defending the action by the plaintiff, no doubt the plaintiff might recover. And, upon the whole, looking at the fact that the defendant had notice of the Action having been brought, and did not suggest to the plaintiff not to defend it, and that he, and not the plaintiff, alone knew whether or not he really bad title, I think there was evidence that lie sanctioned the defence to the action." » Pitkin V. Leavitt, 13 Vt. 379, affirmed in Keeler v. Wood, 30 id, 242 ; Pitcher THE MEASURE OP DAMAGES. 309 With respect to counsel fees, and such other expenses as are called variously in the cases " necessary expenses " — " reasonable costs attending litigation," — " compensation for trouble and ex- penses," — and the like, these have, in some cases, been allowed where notice has been given,^ in others irrespective of notice,^ and in others where no notice has been given. ^ V. Livingston, 4 Johns. (N. Y.) 1 ; Waldo v. Long, 7 id. 174 ; Bennet v. Jen- kins, 13 id. 51 ; Reichert v. Snyder, 9 Wend. (N. Y.) 423 ; Sumner v. Williams^ 8 Mass. 162 ; Leffingwell v. Elliott, 8 Pick. (Mass.) 457 ; Stewart v. Drake, 4 ' Haynes w. Stevens, 11 N. H. 28; affirmed in Kingsbury v. Smith, 13 id. 125 ; Harding v. Larkin, 41 111. 420 ; Rowe v. Heath, 23 Texas, 620, citing the text. (In Levitzky v. Canning, 33 Cal. 308, where the covenant for quiet enjoy- ment was contained in a lease, the paramount title had been asserted by the covenantor himself.) In Wimberly v. Collier, 32 Ga. 13, the covenantor, upon being notified, had, by his own counsel, defended the suit, and it was held that the covenantee could not recover fees for associate counsel employed by himself. So in Kennison v. Taylor, 18 N. H. 220, the covenantee was allowed "his expenses in defending the action upon which he was evicted, including counsel fees among those necessary expenses, and a reasonable remuneration for his personal trouble and pains. But any measures that he has seen fit to pursue for his personal protection, after his covenantor has come into court upon notice, and assumed the defence, are voluntary. If he chose to incur the expense, he cannot call upon the covenantor for indemnity." ' Rickert v. Snyder, 9 Wend. (N.Y.) 416 ; Dreww. Towle, 10 Poster (N. H.), 531 ; Keeler v. Wood, 30 Vt. 242 ; McAlpin v. Woodruff, 11 Ohio St. R. 130 ; Robertson v. Lemon, 2 Bush (Ky.), 303. ' Sumner v. Williams, 8 Mass. 162 ; Leffingwell v. Elliott, 8 Pick. (Mass.) 457 (where, however, counsel fees were denied) ; Pitkin v. Leavitt, 13 Vt. 379, affirmed in Turner v. Goodrich, 26 Vt. 709. In Leffingwell v. Elliott, 10 Pick. (Mass.) 204, the court held that if the plaintiffs " were put to trouble and expense in procuring the extinguishment [of the paramount title], that was a proper ground of damages," and the auditor to whom it was referred to estimate these, classified the plaintiff's claims under three heads: first (besides the amounts paid to extinguish the adverse title, with interest from their payment), charges for the plaintiff's time while thus employed, for horses, carriages, board and counsel fees, with interest on each from the service of the writ in the action on the covenant ; secondly, similar charges subsequent to the 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 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 other charges placed " upon the same ground in that as in other actions, — trespass, for example ; " and the fees of the auditor were allowed in the costs. 310 THE MEASURE OP DAMAGES. In some cases, however, counsel fees have been denied under any circumstances,^ it being considered tliat these " expenses, in- curred by the party for his satisfaction, vary so mucli with tlie character and eminence of counsel, that it would be dangerous to impose such a charge upon an opponent." ^ In some recent cases, however, much prominence has been given in the allowance or refusal of such expenses to the question of Halst. (N. J.) 141 (in Holmes v. Sinniokson, 3 Green (N. J.), 313, it was said " costs and counsel fees taxed in the fee-bill, and no others") ; Cox v. Strode, 2 Bibb (Ky.) , 273 ; Barnett v. Montgomery, 6 Monr. (Ky.) 332 ; Kyle v. Fauntleroy, 9 B. Mon. (Ky.) 622; Robertson v. Lemon, 2 Bush (Ky.), 302. In Morris v. Rowan, 2 Harr. (N. J.) 306, the court said that it did not find, after looking at all the authorities, that the question whether costs should be allowed as damages had ever been made to depend on the fact of notice by the covenantee to the covenantor of the suit by which the former was evicted. " If notice of the suit had been given to these defendants, and they had either declined to inter- fere, or had unsuccessfully aided the plaintiff in his defence, it must be admitted that they would not only have been liable for the costs, but would also have been concluded by the judgment of eviction. But suppose the defendant, conscious of the unsoundness of the title, had not only refused to defend the suit, but had given notice to the tenant that if he made any defence, he must do it at his own risk and expense ; would that have availed him any thing ? I think not. It would place a grantee in hazardous circumstances, if upon such an intimation from his grantor, he must either defend at his own expense or abandon the title, and look for compensation in damages under his covenants. On the contrary, I am of opinion that notwithstanding such notice from the covenantor, the grantee would have a right to recover from him the taxable costs he had incurred in honestly and fairly resisting the claim of title set up by the plaintiff in the eject- ment." "If," added Ford, J., "the warrantor, on learning that his title was defective, should make an admission of the fact, and request the covenantee not to run him to costs by making a useless defence, perhaps it might prove an excep- tion to the general rule." In Swett v. Patrick, 3 Fairf. (Me.) 10, it seems to have been thought by the court that as the covenantor had been notified, the costs were therefore recoverable ; but the cases generally do not recognize this distinction, and as it is well-settled that the absence of notice does not preclude the recovery of damages upon the covenant, but only increases the burden of proof on the covenantor {supra, Ch. VI.), it would seem equally to follow that the absence of notice should not preclude the recovery of costs. In Louisiana, where the civil law prevails, the law seems otherwise ; Bach v. Miller, 16 La. An. U. ' Jeter v. Glenn, 9 Rich. Law (S. C), 380 ; Gragg v. Richardson, 25 Ga. 566. " Reggio 1'. Braggiotti, 7 Cush. (Mass.) 166, which, however, was an action for a breach of warranty of quality of personal property, which had been resold by the plaintiff with a like covenant upon which his purchaser had recovered THE MEASURE OP DAMAGES. 311 notice to, and distinct request from, the covenantor,i and in a very recent case in Pennsylvania, where notice to the covenantor had been given and not responded to, it was considered to be " most reasonable to hold that where a covenantor has been notified to appear and defend, and declines or fails to do so, and the cove- nantee chooses to proceed and incur costs and expenses in what it may be presumed the covenantor considered it to be an unneces- sary and hopeless contest, he does so upon his own responsi- bility." 2 damages in an action of which the plaintiff had notified his vendor. See also Guild V. Guild, 2 Met. (Mass.) 233. It must, however, be borne in mind that whatever doubt may exist as to the propriety of including in the damages recoverable upon the covenants for title such counsel fees as have been referred to, none can exist in the case of a covenant to indemnify and save harmless the covenantee from all loss, damage, expenses, &c. ; Robinson v. Bakewell, 1 Casey (Pa.), 426 ; Cox v. Henry, 8 id. 21; Anderson v. Washabaugh, 7 Wright (Pa.), 116. Such covenants are sometimes found in instruments accompanying the deed of conveyance (as in Robinson v. Bakewell), and sometimes in the executory articles of sale, in which latter case they are sometimes not merged or extinguished by the acceptance of the deed; Cox v. Henry, aupra; Colvin v. Schell, 1 Grant (Pa.), 226. In Gadsden v. The Bank of Georgetown, 5 Rich. Law Rep. (S. C.) 336, the plaintiff had an execution against a defendant, which the bank, a subse- quent execution creditor, enjoined on giving a bond conditioned to save the plain- tiff harmless from all damages which might arise by reason of the injunction, which was subsequently 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. ' Yokum V. Thomas, 15 Iowa, 69, cited infra; Crisfield v. Storr, 36 Md. 161. " It is the duty of the covenantor and those bound by the covenant," said Grason, J., who delivered the opinion of the court in the latter case, "upon receiving no- tice, to defend the covenantee's title, and upon their refusal or neglect to do so, it is clear that the latter would have the right to employ counsel for that purpose, and to recover, in an action on the covenant, such reasonable fees as they had been compelled to pay. But as the appellees did not give such notice, but voluntarily undertook to defend the title, they have no right to recover the counsel fees which they may have paid. Had notice been given to the appellants, they might have thought proper to defend the suit, and employ their own counsel, or they might have come to the conclusion that the title of the plaintiff in the ejectment could not be successfully resisted, and they might, therefore, have determined not to incur a useless expense in making a defence, and preferred to perform their covenant by paying to the appellees the amount of damages to which they might be entitled." ' Terry v. Drabenstadt, 18 P. F. Smith ( Pa.), 403, per Sharswood, J. " ' If,' " said Mr. Justice Huston, in Fulweiler v. Baugher, 15 S. & R. 55, " ' the vendee does not give notice, but appears and defends, it has not been allowed him to re- 312 THE MEASURE OF DAMAGES. A consideration of these rather conflicting cases would seem to suggest, as the true rule to be deduced from them, that the plain- tiff's right to recover counsel fees as part of his costs should, in general, be limited to cases where he has properly notified the party bound by the covenant to come in and defend the title ; but that the neglect or silence of the latter should enure to the benefit of the plaintiff rather than to his own. It need scarcely be said that the suits hereinbefore referred to as those in which the expenses of costs and counsel fees are allowed to enter into the measure of damages, are strictly suits in which the title of the vendor, as covered by the covenants he has given, is necessarily called in question. No such expenses incurred in suits against wrong-doers can, of course, be recovered,^ nor, it has been held, in any remote or other suits than that by which the para- mount title was established.- Nor, on the other hand, must it be supposed that the right to recover counsel fees expended by the purchaser in the action by which he has sought to defend the title received from his vendor can be so extended as to embrace those incurred in suing the latter upon his covenants for title. cover his counsel fees paid and his own expenses, for there may be no ground of defence, and he shall not subject his vendor, without his Icnowledge and against his will, to more than he is liable to on his covenant of warranty. This, gene- rally. There may possibly be exceptions when the warrantor has left the State, and expense must be incurred before he can be found and notice served, as in cases of fraud in the warrantor.' The reason of this decision applies with equal if not greater force where notice has been given and the warrantor has refused or declined to take defence. In the ancient warranty, when the warrantor was vouched to warranty, he must either appear and become tenant and take the defence of the title upon him, or judgment was given against him by default, and there was a recovery over in value. The substitution of the modern covenant for the ancient warranty ought not to change, and practically it has not changed, the rights and obligations of the respective parties. That an opposite doctrine might lead to serious wrong is illustrated in this very case, where it will be seen that the counsel fees and expenses make an addition of nearly fifty per cent to the amount of the damages." It will be perceived that the facts in this case were very similar in Rolph v. Crouch, 3 Law Rep. Ex. 44 ; supra, p. 254 ; but the con- clusion therefrom was different. ' Christy v. Ogle, 33 111. 295. " Harding v. Larkin, 41 111. 421. ETC. 313 CHAPTER X. THE EXTENT TO WHICH COVENANTS FOB TITLE RUN WITH LAND, AND HEREIN OP THEIR RELEASE. It has been somewhat generally said, on this side of the Atlantic, that covenants for title are divided into two classes — those which run with the land, and those which do not — that the former class comprises the covenants for quiet enjoyment, of warranty and for farther assurance; and the latter, the covenants for seisin, for right to convey and against incumbrances. ^ The common-law doctrine of covenants running with land being itself an exception lo another common-law rule, has been attended with many niceties of distinction whiqh it would be need- less here to dwell upon,^ and only so much of the doctrine as is ■ applicable to the subject of covenants for title will be here noticed. Unless where covenants were to be performed on or about land to which they related, they formed no exception to the doctrine of the common law which prohibited the assignment of choses in action, " lest there should be multiplying of contention and suits." ^ But it was not in every case where the covenant was to be per- formed on or about land tliat its burden or benefit passed to an assignee, for its capacity so to do depended upon the tenure ' 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, and the differ- ence taken by American authority between them is, as will be hereafter shown, that the covenants for seisin, for right to convey, and, it would seem, against incumbrances, are broken as soon as made ; while those for quiet enjoyment and of warranty are prospective, and no breach occurs till an eviction, actual or con- structive. ^ Upon this subject the able note to Spencer's case in the American edition of Smith's Leading Cases is, of course, familiar to every student. Much advantage may also be had from the remarks in the third Real Property Report of the British Commissioners, in 1832, which are somewhat freely commented on by Sugden in the latest editions of his treatise on Vendors. ^ Lampet's case, 10 Coke, 48. 314 EXTENT TO WHICH COVENANTS between the covenantor and covenantee, the nature of the estate, the nature of the covenant, and the relation of the covenant to the estate. It is familiar that by the feudal law the transfer of every estate created privity of tenure between the parties, and hence both the burden and the benefit of all covenants made by either of them bound and profited the assignee of either ; not of course by direct operation of assignment, but as incident to the land to which the covenant might be annexed. But when the statute of quia etnptores abolished subinfeudation, of course this privity no longer existed in cases where a fee was transferred and no reversion left in the donor, and it became a rule that covenants which imposed any charge, burden or obliga- tion upon the land were held not to be incident to it and therefore incapable of passing with it to an assignee ; thus, if the owner of land granted it in fee, reserving to himself a rent which the grantee covenanted 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 its liability.^ But on the other hand, if the covenant were one intended to benefit the land, it was considered to be incident to and to run with the land even if made by a ' It was otherwise when there was a reversion left in the grantor. Thus, at the end of the report in Pakenham's case, Year Book, 42 Edw. III., 3 pi. 14, it was said by the reporter, " If I lease land to a man for term of life, and reserve thereout a certain rent, and I grant the reversion of the land to another, and the tenant attorn to the grantee, the grantee shall have the rent notwithstanding the covenant was not made to him." (See infra.) But when the conveyance is in fee, the liability of an assignee of the land to pay ground-rent can only be enforced, on strict principles, where there is some privity between the covenantee and the assignee of the covenantor ; see Milnes v. Branch, 5 Maule & Selwyn, 411 ; Randall v. Eigby, 4 Mees. & Welsh. 130. Before the statute of quia emptores, such a privity grew, at common law, out of every conveyance into which no contrary stipulation was introduced. In Pennsylvania, before it had been decided in Ingersoll v. Sergeant, 1 Whart. 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 local common law of that State, though attempts had, before that decision, been made to found them on authority; see Streaper v. Fisher, 1 Rawle (Pa.), lo5 ; Scott v. Lunt's Adm'rs, 7 Peters (U. S.), 605. The decision in New York of Van Rensselaer ». Hays, 19 N. Y. 68, was based upon the effect of the local statute of 1805, though the court evidently inclined to the opinion that the remedy existed at common law. FOR TITLE RUN WITH LAND, ETC. 315 stranger, and, therefore, whoever might become the owner of the land would also become entitled to the benefit of the covenant.^ ' For this, the early authority of Pakenham's case, 42 Edw. III., 3 pi. 14, cited in Spencer's case, 3 Coke, 16, is generally relied on. 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, and yet the benefit of the covenant was con- sidered to pass to whomsoever might be the owner, although, as between him and them, there was neither privity of estate nor contract. The case itself, leaving out the immaterial parts, was this : " One Lawrence Pakenham brought writ of covenant as heir against a certain Prior, that the latter did not keep a covenant which had been made between one J., the plain- tiff's grandfather and' ancestor, and one the Prior's predecessor, in that the Prior and his convent ought to sing through all the week in a chapel in his (J.'s) manor of K. for him and his servants, &c. Belknap (for the defendant). — The plaintiff has an elder brother, who is the heir to his ancestor, to whom, therefore, the right of action belongs, wherefore if you, being the younger son, and, therefore, not heir, can have your action? Candish (for the plaintiff). — The plaintiff is tenant of the manor in which the singing should be performed, so that it is right that the action should be brought by him, wherefore we pray judgment and damages. Belknap. — While you bring a suit as heir, you have an elder brother who should bring the action as heir. Candish said that J., the great-grandfather of the plaintiff, enfeoffed one G. de M. of the manor, and that said G. granted the same manor to the plaintiff and to one Alice his wife and the heirs of their bodies, and in default of issue, with remainder to J. and his heirs, and that the plaintiff is tenant of the manor, and to no other therefore belongs the right of action ; there- fore we pray judgment and damages, and also say that since the feoffment the sing- ing has been performed from time out of memory. Belknap. — At the time you brought this writ as heir, nothing was said by you of there being a next heir to him who made the covenant, and so the right of action will belong rather to him than to you, and we therefore pray that you be barred. Candish. — And we pray judgment and say that we are tenants of the manor by purchase and privy to the ancestor who made the covenant, and that the services have been performed from time out of memory, and so we pray judgment. Belknap. — How is it that he is privy in blood, and how is it that while he holds the land by purchase he is bringing this writ as heir, while he is not heir, and to no one belongs the action of covenant, but to him who made the covenant, or his heirs ? Finchden, J. — I have seen it expressly decided that two parceners made partition of their land, and one parcener made a covenant with the other to acquit her and her heirs of a suit that was due of the land, and the parcener (to whom the covenant was made) aliened the land to a stranger and then the suit became due, and the stranger brought covenant against the parcener, to acquit him of the suit, and the writ wa s maintained notwithstanding he was a stranger to the covenant, as in the present case. Belknap. — I grant it all in your case, for the acquittance lay upon the land and not upon the person, whilst here the covenant was personal. Finchden. — And 316 EXTENT TO WHICH COVENANTS It is considered by the weight of authority to be upon this ground that both the ancient warranty and the modern covenants if you grant me that this is law, then it is much stronger in the other case, for in the case of the suit of which I have spoken, it was maintained because he (the plaintiff) was tenant of the land of which the suit was due, and here also he is tenant of the manor in which is the chapel, and in the chapel it should be per- formed. Wichingham, J. — If the king grant a warren to another who is the tenant of the manor, the warren will not pass by the alienation of the manor, because it is not appendant thereto, nor did it seem more so here from the time that the services were not appurtenant to the manor. Thorpe, J. (to Belknap) . — There are some covenants on which no man shall have an action except the party to the covenant or his heirs, and some covenants have an inheritance in the land, so that they who have the land by alienation, or otherwise, shall have an action of covenant, and the plaintiff here is also tenant of the land, and it is a thing annexed to the chapel that is within the manor and therefore an- nexed to the manor, and the services have been performed from time immemo- rial, and therefore it is right that the action should be maintained." But the case was adjourned, and there is no further trace of it. In this case it will be perceived that as heir of the original covenantee the plaintiff had no case, for he had an elder brother who was the heir, but the court seemed to consider that his right to recover depended upon his being the owner of the land for the time being. Coke, in his reports (Spencer's case) and in his Commentaries on Littleton (Co. Litt. .384 6), always so understood this case, and his view has the support of eminent authority ; (see the third report of the Eng- lish Real Property Commissioner, p. 52, the English editor's note to Spencer's case, which are amplified as to this in the sixth edition, Judge Hare's notes to the same case.) In 7 Jarman's Conveyancing, 672, the editor, after citing Pakenham's case as referred to in Co. Litt. 384: &, adds, with some reserve: "In this case it is clear there was no privity of estate (using that term in the sense which in the cases under consideration has been given to it) between the Prior and the Lord of the Manor, and the reason assigned by the very learned commentator for the distinction between the two cases which he puts in opposition shows that he con- sidered it sufficient that the covenant was with the owner of the land, respecting the land. The whole difference is made to consist in the covenantee being, or not being, seised of the manor, without regard to the relative character of the covenantor. We have, therefore, the high authority of Lord Coke, uncontra- dicted, I believe, by decision, though certainly opposed by the current of pro- fessional opinion, in favor of the doctrine in question ; and when to this is added the weighty consideration of convenience (which would seem obviously to demand that covenants relating to land, by whomsoever' made, should accompany the land), we may well entertain a doubt, whether the courts would not now hold that covenants for title, to produce title-deeds, and all other covenants capable in their nature of running with the land, if made with any person havitig an estate in the land, would be annexed to that estate in the hands of an alienee." But while Sugden is quite willing to accede to the proposition that cove- nants for title not only should, but do run with the land, he has not, of late years, been content that the doctrine should rest upon the reason which Coke FOE TITLE RUN WITH LAND, ETC. 317 for title, intended for the benefit of the land, have been held to run with it to the assignee ; that is to say, the owner of the land for the time being is considered entitled to the benefit of all the war- ranties and covenants which the prior owners in the chain of title may have given. There was, however, this important difference between warranty and the covenants which superseded it. The and others have extracted from Pakenham's case, which he considers " stands alone, but the ground upon which it depends has never been explained." (Sugden on Vendors (13th ed.), p. 475.) In his earlier editions he had con- tented himself with considering that the proposition that, in order to make covenants for title run with the land, there should be some privity of estate between the covenanting parties " seemed to apply as well to covenants entered into by a vendor as to covenants entered into by a purchaser. But the consequences of this doctrine are truly alarming. In a great proportion of cases, the vendor has either mortgaged the estate in fee, or is a mere cestui que trust ; " and if his covenants were to be deemed covenants in gross, the assignees of the land could only compel performance of the covenants by the circuitous mode of using the name of the first purchaser or his representa- tives, whom, at the distance of some years, it might be very difficult to trace." But when the Report of the Real Property Commissioners appeared, their conclusions, doubted by Sugden as to several matters, were as to none more strongly disputed than as to the real point decided in Pakenham's case. But whatever might be his doubt as to the authority, he had none as to the result and while he has in late editions considered that the doctrine of privity of estate does not apply to covenants entered into by a vendor, he states thus plainly what is incontestable on both sides of the Atlantic. " Covenants for title are frequently called real covenants, and pass by the common law to the assignees of the land, who may maintain action upon them against the vendor and his real and personal representatives. And as the covenants relate to the land, an assignee may maintain an action on them although they were entered into with the original grantee and his heirs only; and where the covenants run with the land although they are entered into with the party his executors and administrators, yet they will go to the heir with the land ;" Vendors, c. 15, pi. 1. An elabo- rate article on " Covenants for Title running with Land," in 11 Amer. Law Reg. 193, 257, has criticised the text of this treatise, and considered that Sugden's strictures on Pakenham's case have resulted in its complete overthrow as authority, and that " the positions particularly relied on were not judicial resolutions, but an addition by the reporter ; " but as to this, it may be said that the only note by the reporter was that heretofore cited on p. 314, as to a cov- enant to pay rent enuring to the assignee of the reversion, and that the latest English writers of authority consider that the strictures of the eminent author re- ferred to are not supported by cotemporaneous or subsequent authority. See notes to Spencer's case, supra. * This espreasion , — that a vendor is generally butamerecMfui que trust, — which might sound strangely to an American student, has reference to the practice which, before the act of 3 8c i Will. IV. c. 74 prevailed, of conveying estates " to dower uses." See supra, p. 24. 318 EXTENT TO WHICH COVENANTS former was, in the strict sense of the word, a covenant real, and its benefit descended upon the lieir in every instance, whether it had or had not been broken in the lifetime of the ancestor. It was a right to which an executor could never succeed.^ But with respect to cove- nants, although until breach they, equally with the warranty, passed to the heir with the land they were intended to protect, yet if a breach had occurred in the lifetime of the testator, they then became choses in action, incapable of transmission or descent, and whose right survived to the executor alone.^ Nor is there any difference, as to principle, between English and American authority in this respect. It is a settled rule, on both sides of the Atlantic, that, until breach, the covenants for title, with- out distinction between them, run with the land to heirs and assigns. But while this is well settled, a strong current of American authority has set in favor of the position that the covenants for seisin, for right to convey, and, perhaps, against incumbrances, are what are called covenants in prcesenti, — if broken at all, their breach occurs at the moment of their creation ; the covenant is, that a particular state of things exists at that time, and if this be not true, the delivery of the deed which contains such a covenant causes an instant breach ; these covenants are then, it is held, turned into a mere right of action, which is not assignable at law, which can be taken advantage of only by the covenantee or his personal representatives, and can neither pass to an heir, a devisee nor a subsequent purchaser. A distinction, therefore, is considered, by this class of cases, to exist, in this respect, between the covenants just named, and those > Fitz. Nat. Brev. 146 ; Touchstone, 175. ' Com. Dig. Covenant, B. 1 ; Wentworth's Office of Exec. 160 ; Lucy v. Lev- ington, 2 Levinz, 26 ; Morley v. Polhill, 2 Ventris, 56 ; 8. c. 8 Salkeld, 109, pi. 10; Smith v. Siraonds, Comberbach, 64; Raymond v. Fitch, 2 Cromp. Mees. & Rose. 588 ; s. c. 5 Tyrwhitt, 985 ; Ricketts v. Weaver, 12 Mees. & Welsh. 718 ; Young v. Raincock, 7 Com. Bench, 310. The much controverted cases of Kingdon v. Nottle, 1 Maule & Selwyn, 365 ; 4 id. 53 ; and King v. Jones, 5 Taunton, 418 ; Jones v. King, 4 Maule & Selwyn, 188, contain some dicta which would seem to justify the conclusion that modern covenants for title like the warranty, passed to the heir or devisee, whether the breach did or did not happen in the testator's lifetime. This was going too far, and has since been corrected by the cases of Raymond v. Fitch, Ricketts v. Weaver, and Young ». Raincock, supra. ETC. 319 for quiet enjoyment, of warranty and for further assurance, which are held to be prospective in their character. The leading case as to this is Greenby v. Wilcocks, decided by the Supreme Court of New York, in 1806.^ The defendant had conveyed certain land, with covenants for seisin, of good right to convey and of warranty, to one under whom the plaintiff claimed under mesne conveyances, and the latter, being evicted by title paramount,^ brought covenant. For the defendant, it was objected that the declaration having averred that there was a total defect of title when the defendant executed the deed, the covenants were then broken and could not be assigned over by the first grantee, and this objection was held by the majority of tlie court to be con- clusive.-' The doctrine so laid down has been repeatedly recog- ' 2 Johns. (N .Y.) 1. ^ The declaration in this case was, as to the covenant of warranty, clearly defective in not alleging that the eviction was under lawful title (see supra, p. 133), though it was not (as seemed to be considered in the opinion) necessary to aver that it was had under legal process (see supra, p. 145) . ^ " Choses in action," said Spencer, J., who delivered the opinion, "are in- capable of assignment at the common law ; and what can distinguish these cove- nants, broken the instant they were made, from an ordinary chose in action ? The covenants, it is true, are such as run with the land, but here the substratum fails, for there was no land whereof the defendant was seised, and, of consequence, none that he could alien; the covenants are, therefore, naked ones, uncoupled with a right to the soil." Apart from the cases of Lucy v. Levington, 2 Lev. 26, and Lewis v. Kidge, Cro. Eliz. 868 (which will be referred to infra, and which do not sup- port the position claimed for them), the only authority cited for the defendant was the following passage in the Touchstone, p. 170 : " If one be seised 9f land in fee, or possessed of a term of years, and he doth alien it, and sup- posing he hath a good estate, he doth covenant that he is lawfully seised or possessed, or that he hath a good estate, or that he is able to make such an alienation, &c., and in truth he hath not, but some other hath an estate in it before ; in this case the covenant is broken as soon as it is made. And if I bargain and sell land, by deed indented, to B., and before the deed is in- rolled I grant the same land to C. and covenant that I am seised of a good estate- of it in fee, and after the deed is inrolled ; in this case the covenant is broken." In the margin of the first edition of the Touchstone, opposite the first sentence, there is quoted Dyer, 303, and 9 Coke, 60. The case in Dyer is Northcote v. Ward, which was simply that the defendant Ward had granted the farm of the ulnage of saleable cloths in certain counties to the plaintiff Northcote, with a covenant that he was lawfully possessed of the same by letters patent from the Crown. The plaintiff, " supposing the covenant broken in this, because the patent was void by reason of the want of the treas- 320 EXTENT TO WHICH COVENANTS nized and affirmed, and the weight of American authority .is unquestionably in favor of the position that the covenant for seisin 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 benig used by any biit the covenantee or his personal representatives.^ urer's warrant by the statutes thereof made, which are chiefly touched upon hereafter, brought a writ of covenant, and upon the writ and count the defendant demurred." And it appearing to the court that the King might not, under the statutes in that behalf, grant the office of aulnager without a warrant from the treasurer, judgment was, without argument, given for the plaintiff, and that the said letters-patent were void. The case in 9 Coke is Bradshaw's case (sometimes cited as Salmon v. Bradshaw, and reported less fully in Cro. Jac. 304, and par- tially in Hobart, 114, and Doct. pi. 61), in which Bradshaw, having demised certain lands to the plaintiff for six years if one Reyns should so long live, cov- enanting that he had full power so to demise them, the plaintiff declaredthat the defendant had not such power to demise, and so had broken his covenant. The defendant pleaded accord and satisfaction, on which judgment was entered for the plaintiff, and the case was then removed to Cam. Scac, where it was assigned for error, first, ' ' that the plaintiff had not averred that Reyns was alive at the time of the beginning of the said lease, nor at the time of the action brought ; et non allocatur, for the covenant refers to the time of the lease made, and then, be Reyns alive or dead, the action lies ; for if he be dead before the lease, then the lease is absolute, and if he died after the lease and before the action brought, yet the action lies, and consideration shall be had thereof in damages.'' The other error assigned (and this is the principal one noted in the report in Cro. Jac.) was that the plaintiff had not shown what other person had title to the premises at the time of the making of the indenture, but the court held that the breach was sufficiently assigned by negativing the words of the covenant (see as to this, supra, p. 84). These cases, therefore, do not support the position claimed for them in the Touchstone. Opposite the second sentence in the Touchstone there is cited in the margin, in the first and all the subsequent editions, "Adjudged Sir Perall Brocas' case, 32 Q," but the case is unreported. There is, indeed, a case of that name reported in2 Leonard, 211, and 3 id. 219, but it is upon another subject. It is believed, after some research, fliat " 32 Q" refers to the decision being made in the 32d year of Queen Elizabeth's reign, and the author examined the record of those cases, now preserved in the new Record Office, in Chancery Lane. The decisions of 32 Elizabeth form a roll of about four thousand membranes of parchment, written, of course, in Norman-French, in court-hand, much abbreviated, and with ink which has faded as to part, and time did not permit the examination of all of them. In the absence of the case itself, we may perhaps rest with the belief that Brocas' case was cited as supporting the second sentence quoted in the Touchstone, that is, that the covenant of seisin contained in the second deed was broken by the enrol- ment of the prior conveyance, as to which see supra. ' Hacker v. Storer, 8 Greenl. (Me.) 228 ; Heath v. Whidden, 24 Me. 888 j but FOB TITLE EUN WITH LAND, ETC. 321 An examination of this class of cases will show that the decision is often given with reluctance, and only in obedience to what is supposed to be the strict technical common-law rule, as illustrated and enforced by the case of Lucy ■«. Levington ^ and Lewes v. see the recent statute in Maine, cited supra ; Smith v. Jefts, 44 N. H. 482; Williams u. Wetherbee, 1 Aik. (Vt.) 233; Garfield v. Williams, 2 Vt. 327 ; Pierce B. Johnson, 4 id. 253 ; Richardson v. Dorr, 5 id. 9 ; Pot- ter V. Taylor, 6 id. 676 ; Mitchell v. Warner, 6 Conn. 497 ; Davis v. Lyman, 6 id. 249; Bickford v. Page, 2 Mass. 455; Prescott v. Trueman, 4 id. 627; Wheelock v. Thayer, 16 Pick. (Mass.) 68; Thayer v. Clemence, 22 id. 490; Clark V. Swift, 3 Met. 390 ; Greenby v. Wilcocks, 2 Johns. 1 ; Hamilton v. Wilson, 4 id. 72; Townsend v. Morris, 6 Cowen (N. Y.), '123; Beddoe V. Wadsworth, 21 Wend. (N. Y.) 120; McCarty v. Leggett, 3 Hill (jST. Y.), 134; Blydenburgh v. Cotheal, 1 Duer (N. Y.), 197; Coit v. M'Eeynolds, 2 Kobertson (ST. Y.), 655 (this was a case of great hardship) ; Lot v. Thomas, 1 Pennington (N. J.), 297 ; Chapman v. Holmes, 5 Halst. (N. J.) 20; Garrison v. Sandford, 7 id. 261 ; Carter u. Denman, 3 Zabr. (N. J.) 260 ; Wilson v. Forbes, 2 Dev. (N. C.) 30 ; Grist v. Hodges, 3 id. 200 ; South v. Hoy, 3 Monr. (Ky.) 94; Kice v. Spotswood, 6 id. 40; Pence v. Duvall, 9 B. Mon. (Ky.) 48; Brady v. Spurek, 27 111. 482; Logan u. Moulder, 1 Pike (Ark.), 313; Ross v. Turner, 2 English (Ark.), 132; Pate v. Mitchell, 23 Ark. 590 ; Lawrence v. Montgomery, 37 Cal. 188 ; Pillsbury v. Mitchell, 5 Wis. 21. ' This case is reported 2 Levinz, 26, 1 Ventris, 175, 2 Keble, 831. The report in Levinz is, as to the point now under inquiry, the most full, and is as follows: "Covenant: and declares that Levington sold to Luke Lucy, the plaintiff's testator, certain lands, and covenanted with him, his heirs and assigns, that he should enjoy the same against him and Sir Peter Vanlore, their heirs and assigns, and all claiming under them ; and assigns for breach, that Croke, claiming under Vanlore, ejected him. The defendant pleaded that, at the time of the covenant, he was seised of an indefeasible title, and that, by a subsequent act of Parliament, reciting that Sir Peter Vanlore had settled his estate upon the Lady Mary Powell, and that certain persons had unduly procured her to levy a fine, it was enacted that this fine should be void, and that all per- sons might enter as if no fine had been levied ; and that by force of this fine, non alUer, the defendant was seised, and sold, and made this covenant ; and that after the act, Croke, claiming by title derived from the Lady Mary Powell, by the settlement of Vanlore, by virtue of the said act of Parliament, entered and ousted him ; upon which the plaintiff demurred ; and for the defendant it was argued, first, that the covenant was with Lucy, his heirs and assigns, touching an estate of inheritance ; therefore the action ought to be brought by the heir or assignee, whose loss it is, and not by the executors. To which it was answered and resolved by the court, that the eviction being to the testator, he cannot have an heir or assignee of this land ; and so the damages belong to the executors, though not named in the covenant, for they represent the person of the testator." The rest of the report is not material. 21 322 EXTENT TO WHICH COVENANTS Ridge. 1 It is remarkable that these cases do not support the position for which they are generally cited. The case of Lucy v. Leving- ton decided no more than that where a testator who had received a covenant for quiet enjoyment had been evicted, his executor was the proper party to take advantage of the covenant, the whole and ultimate damage having accrued to the testator by the eviction in his lifetime ; in other words, after the covenant is broken, its capacity for running with the land of course ceases ; a proposition too obvious to need the support of authority, and which applies equally to a covenant for seisin or for quiet enjoyment.^ The case, of Lewes v. Ridge is, however, the authority deemed in this country to be conclusive that a covenant for seisin or against incumbrances is broken as soon as made. Tine decision seems to have been somewhat misunderstood. " The case was such : the defendant, being seised of land in fee, let it for life, re- mainder for life, rendering rent, and afterwards acknowledged a statute, and after that, by indenture, bargained and sold the rever- sion, and covenanted with the bargainee, his heirs and assigns, that it should be discharged, within two years, of all statutes, charges, and incumbrances, excepting the estates for life. The statute is ex- tended, and thereupon this reversion and rent was extended. Tlie bargainee grants tliis reversion to the plaintiff, who, for not dis- charging of this statute, brings covenant. And, all this matter being disclosed to the court, it was thereupon demurred. The question principally moved was, whether the plaintiff, as assignee, shall have benefit of this covenant made to the bargainee by the common law, or by the statute of 32 Hen. VIII. ? But because the covenant was broken before the plaintiff's purchase, the land being then in extent, and so a thing in action, which could not be transferred ov.er, 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 principle, or to that of the more recent English decisions. In the first place, there can be no doubt that a covenant to discharge of incumbrances within two years, being a covenant to do a thing certain at or within a certain time, is finally and actually broken at the expira- ' Cro. Eliz. 863. = Shelton V. Codman, 3 Gush. (Mass.) 321; Field v. Snell, 4 id. 509; Til- lotson V. Boyd, 4 Sandf. S. C. (N. Y.) 521. FOR TITLE RUN WITH LAND, ETC. 323 tion of that time, although no special damage whatever may have occurred to the covenantee.^ But, besides this, it seems to have been overlooked that execution had issued upon the statute, — the land was actually extended, — the covenant was therefore as completely broken as it could be,^ " 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 covenantee in the other, the case of Lewis v. B-idge is the same as that of Lucy v. Levington ; each consistent with the other, and each deciding no more or less than that after total breach the covenant becomes a chose in action, and therefore incapable of transmission or descent. ' This was expressly decided in Lethbridge v. Mytton, 2 Barn. & Adolph. 772, supra, p. 94, and has been recognized and applied in many cases on this side of the Atlantic (see these cited supra, p. 94, n. 2). " There is a differ- ence," said Swift, J., in the course of an able opinion in Booth v. Starr, 1 Conn. 249, " between a contract to discharge or acquit from a debt, and one to discharge or acquit from the damages 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 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 ; 1 Saund. 117, Ji." Under the ordinary covenant against incumbrances, as we have heretofore seen, although it may be held to be broken as soon as made, yet no more than nominal damages can, as a general rule, be recovered by reason of such a mere technical breach ; supra, p. 288. ^ In this case the word extent seems to have been used in its general sense, as synonymous with execution upon a statute or recognizance. This was often the case in the older books, for although, upon a statute staple the conusee could not, after the appraisement or extent of the lands, immediately take possession of them, but was obliged to sue out a liberate (Fitz. Nat. Brev. 132), in which case the extent was not the consummation of the execution but only one of its parts, yet upon a statute merchant, if the sheriff returned to the capias that the party was dead or not in his bailiwick, the lands were extended and forthwith delivered to the conusee, without tbe delay or expense of a liberate ; Fitz. Nat. Brev. 130. Instances of the word extent being thus used will be found in Bac. , Ab. Execution, B. And see the Stat, de Merc. 13 Edw. I., stat. 3, c. 1. This construction seems also to have been put upon the case of Lewis v. Ridge, in Tillotson V. Boyd, 4 Sandf. (N. Y.) 621; where it is said: "As long ago as the time of Queen Elizabeth, it was held that a purchaser of land could not sue the person who had conveyed to his immediate grantor, on a covenant which was broken before the plaintiff had acquired right; Lewes v. Ridge, Cro. Eliz. 80)3." 324 EXTENT TO WHICH COVENANTS And in England it has been to this day held that no such distinc- tion exists between the different covenants for title. That for seisin, it is considered, is not like a covenant to perforin a single act, which not being performed, the covenant is broken once for all, but it is rather in the nature of a covenant to do a thing toties quoties as the exigencies of the case may require, and the want of seisin is therefore a continuing breach, — that even although, according to the letter, there should be a breach on the instant of the creation of the covenant (when its words are in the present tense), yet according to its spirit, the right of action should pass to and vest in the party in wliose time the substantial breach occurs and who ultimately sustains damage ; the covenant not being in- tended merely for the benefit of the covenantee, but for the pro- tection of all who derive tlieir title to the land through him. Thus, in Kingdon v. Nottle, when first presented, ^ the plaintiff as executrix sued the defendant for a breach of the covenant for seisin, and as is usual in declarations on this covenant, assigned for breach that the defendant was not seised, &c., which on special demurrer was held bad, on the ground that there was no other damage than such as arose from a breach of the defendant's cove- nant that he had a good title, that that breach was not shown to have been a damage to the testator, that it was not alleged that the estate was thereby prejudiced during the lifetime of the testator, and if after his decease any damage occurred, that would be a matter which concerned the heir. Judgment was, therefore, en- tered in that action for the defendant. But when the case was again presented,^ the same plaintiff sued as devisee of the cove- nantee, setting forth in the declaration tliat the estate had been prejudiced by reason of the defect of title, and its sole prevented. On demurrer, it was argued for the defendant that the covenant was broken as soon as made, and therefore no right of action passed to the devisee ; but it was lield that so long as the defendant had not a good title there was a continuing breach, and although, according to the letter, there was a breach in the testator's lifetime, yet that, according to the spirit, the substantial breach was in the time of the devisee, for slie thereby lost the fruit of the covenant in not being able to dispose of the estate. The case of King v. Jones ^ proceeded much on the same ground, ' 1 Maule & Selw. 366. = Kingdon v. Nottle, 4 Maule & Selw. 53. ^ 6 Taunton, 418. 325 though the covenant was for further assurance, which, although its breach occurs technically by the refusal to execute a further assurance,! may present the sanie question as that arising on the covenant for seisin. In that case, the refusal to make further assurance occurred during the lifetime of the covenantee, while the real damage was felt by his heir who was the party evicted. " The covenantee," it was said by the court, " paid his purchase- money, relying on the vendor's covenant ; he required him to per- form it, but gave him time, and did not sue him instantaneously for his neglect, but waited for the event. It was wise so to do, until the ultimate damage was sustained, for otherwise he could not have recovered the whole value ; the ultimate damage, then, not having been sustained in the time of the ancestor, the action remained to the heir (who represents the ancestor in respect of land, as the executor does in respect of personalty,) in preference to the executor," and this judgment was affirmed on writ of error to the King's Bench .^ ' See supra, p. 195. ' Jones u. King, 4 Maule & Selw. 188. In considering these oases, care must be taken to distinguish between their actual decisions and the dicta which they contain. The cases themselves decide no more than that, in the first place, until breach, the covenants for title run with the land, and that, secondly, the covenant for seisin, though nominally broken at the instant of its creation, has in reality a continuing breach, not consummated until some actual damage has taken place. In other words, it is not so much a covenant in prcEsenti, as a covenant of indemnity. The American authorities agree with the first of these propositions, but, in general, dissent from the second. Chancellor Kent, in referring to the doctrine of the American cases, has remarked that " it is to be regretted that the technical scruple that a chose in action was not assignable, does necessarily prevent the assignee from availing himself of any or all of the covenants. He is the most interested, and the most fit person to claim the indemnity secured by them, for the compensation belongs to him, as the last purchaser and the first sufferer ; " 4 Kent's Com. 472 ; and the learned commentator considered that the doctrine that the want of seisin was a continuing breach, " is too refined to be sound. The breach is single, entire, and perfect in the first instance." Nominally, indeed, this is so, yet in many instances it may be that the breach is but nominal for a long time, undiscovered, perhaps, and in point of fact injuring no one ; and the want of title may be at length, for the first time, felt by one, who, removed from the original grantee by many con- veyances, has directly to bear the whole burden of the loss. In such case, if the injured party has not received a general covenant from his immediate grantor, and the covenants for seisin or against incumbrances are the only ones in the deed, he may be, according to the current of American decision, without 326 EXTENT TO WHICH COVENANTS It may be observed that in deciding such questions upon cove- nants for title, regard should be had to the original purpose of remedy ; for a covenant liaiited to the acts of the grantor would not, of course, be broken by any want of seisin 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 important that each vendee should have the benefit of all the covenants entered into by the prior owners, so that although each vendor may only have covenanted against his own acts, yet in the last vendee will be vested the right to take advantage of each and all of these covenants ; and this can only be on the principle that their technical and their actual breach occur at the same time. The doctrine of the English cases was nowhere more severely assailed than in Mitchell «. Warner, 5 Conn. 497. In referring to the language of Lord Ellen- borough in Kingdon v. Nottle, Hosmer, C. J., who delivered the judgment of the court, said, " From this opinion I am compelled to dissent m omnibus. First, I afSrm that the novel idea attending the breach iu the testator's lifetime, by calling it a continuing breach, and therefore a breach to the heir or devisee at a subse- quent time, is an ingenious suggestion, but of no substantial import. Every breach of contract is a continuing breach, until it is in some manner healed; but the great question is, to whom does it continue as a breach ? The only answer is, to the person who had the title to the contract when it was broken. It remains, as it was, a breach to the same person who first had a cause of action upon it. If it be any thing more, it is not a continuing breach, but anew existence. In the next place, I assert that it is like a covenant to do an act of solitary performance ; and for this plain reason, that it is, in its nature, a covenant for a solitary act, and not a successive one. If the covenant is broken, that is, if the grantor was not seised, it is infracted to the 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 diiferent times, which may undergo repeated breaches. It has no futurition, and cannot be partly broken and partly sound ; but the grantor is seised, or not seised, and, therefore, the covenant is inviolate, or violated wholly. Not further to pursue the subject, I remark, that, in my judgment, the case of Kingdon v. Nottle may justly be said to authorize the assignment of a chose in action by devise ; a supposition as unfounded as it is novel. I therefore conclude, that the determination in the above-mentioned cases of Kingdon v. Nottle are against the ancient, uniform, and established law of Westminster Hall, against well-settled principles and decided cases in the surrounding States, and that the judges pronouncing them would have been of an opinion different from the one expressed, had they recognized the principle here well established, that the breach of the covenant of seisin is, in its nature, total, and the measure of damages the whole consideration-money paid for the land." It has been well remarked in a recent essay, " It must be admitted that Lord EUenborough's idea of a continuing breach is open to objection, and we conceive that the unsatisfactory nature of this reason has sometimes occasioned the rejection of the rule which it was designed to support; " 11 Am. Law. Reg. 273. FOR TITLE RUN WITH LAND, ETC. 327 their introduction, the intention of the parties making and receiv- ing them, and the object which they were intended to fulfil. They succeeded the common-law warranty, which was exclusively a covenant real, and could never in any event be taken advantage of by a personal representative ; and the introduction of covenants in place of warranty would seem to be 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 of those entitled to their benefit. It was probably not supposed, at the period of its introduction, that the covenant for seisin could never be used by one to whom the land had come by assignment or by inheritance, and that its benefit was restrained to the covenantee himself, or to his executor, if the actual damage had happened in his lifetime. Such a doctrine, if practically enforced, would have materially lessened the value of this covenant.^ The doctrine of the English cases, if open to objection at all, may, perhaps, be doubted in so far as they seem to utterly deny to a covenantee or his personal representative any right of action unless special damage in his time be averred and proved. And while, on the one hand, to allow a covenantee to recover at his option the consideration-money when no special damage has occurred, leads to embarrassments which have already been considered,^ yet ' Supra, Ch. I. " Nor, as has been already said, can an authority be found in the English books to support such a doctrine. The old cases, when examined, not only fail to sustain it, but Brocas' case, supra, p. 320, n., if correctly reported. Impliedly decides the contrary. It may be deemed worthy of notice that in 3 Wentworth's Pleading, 440, will be found an elaborate declaration, drawn by Mr. Lawes (the author of Pleadings in Assumpsit), in an action brought by the assignee of one who had received covenants that a lease was a valid and subsisting one, and that the covenantor had full power to assign it. ' In an essay already referred to, the author says, " He would suggest whether the following view, though new, and probably not entirely unobjection- able, is not more satisfactory. The non-existence of the facts covenanted for may of itself become a serious injury to the estate (as by preventing its sale), and ought, without any thing more, to be a good foundation for an action on the covenants, if the covenantee choose so to regard it. But if the covenantee remains ignorant of the defect until the land is assigned, or if, knowing it, he elects not to treat it as a breach of the covenants (perhaps expecting that the defect will be removed before causing any positive injury), and, under these cir- cumstances, assigns the land, it is reasonable to consider the assignee as fully 328 EXTENT TO WHICH COVENANTS these difficulties, themselves capable of modification, yield in im- portance to the disastrous result. which flows from holding the covenant to be broken at once and forever at the time of its creation, for in many cases its short life does good to no one. Hence we find that the doctrine of the American cases has not stood the test of practical experience, and that while the English rule is fully recognized in some of the United States, and partially in others, tliere are again those in which the legislature has effected what the courts have considered themselves unable to remedy, and, from the tendency of modern decision and legislation, it is possible that, at no distant day, that which we have called the American doctrine will have ceased to exist. The lead in legislation seems to have been taken in Maine, whose Revised Statutes expressly give to the assignee of a cove- nantee a right of action for a breach of the covenants for seisin and against incumbrances.^ invested with all right in the covenants, as the covenantor was before assignment. Stated more briefly, our view is, that a technical breach may become a substan- tial one, by being treated as such; " 11 Am. Law Reg. 273. But this sugges- tion is scarcely as new as the learned author seems to suppose ; see Sugden on Vendors, 600 ; Dart on Vendors, 716. ' Revised Statutes (1841), title X. c. 115, § 16. "In all cases where real estate has been or may be conveyed to any person, his heirs or assigns, with a covenant that the grantor was seised in fee of the same, and that it was free of all incumbrances at the time of such conveyance, the same estate being then under mortgage or other incumbrance, or the grantor not being thus seised of the same, the assignee of such grantee, his executors or administrators, after having been evicted of said estate by the elder and better title of the mortgagee, his heirs or assigns, may maintain an action of covenant broken against the first grantor on any of the covenants in such absolute deed, in his or their own names, and recover such damages as the grantee might, if he had been evicted and had brought the action in his own name ; provided he shall file in court, at the first term, for the use of the grantee, a release of the covenants in said grantee's deed, to said assignee, and all causes of action on any of such covenants. " § 17. When a person has conveyed, or shall convey real estate to another, covenanting in his deed that he is seised in fee of the premises, and that they are free from all incumbrance at the time of the conveyance, and such grantee shall afterwards convey the said premises to a third person in fee, such grantor shall have no power to release the said covenants contained in the deed first mentioned, so as to bar or any way affect the right of such third person to maintain an action against the first grantor for breach of said covenants of seisin and freedom of the premises from iticumbrance." The following observations upon these provisions were made in the recent case of Prescott v. Hobbs, 30 Me. 346. " The 16th section of chapter 115, R. S., FOR TITLE RUN WITH LAND, ETC. 329 The same result has been reached by the new codes of procedure in New York ^ and Ohio.^ In the latter State, however, decision had for many years, to a very great extent, preceded legislation.^ indicates," said Wells, J., "that a right of action shall pass to the assignee of the grantee for a breach of the covenant of seisin, but the language necessary to perfect such an intention is not used throughout the whole section. It subse- quently limits the enactment to cases of incumbrances arising from mortgages. But section 17 dispels the obscurity of the prior one. It talies from the grantee, after he has assigned to a third person, the power to release the covenants of seisin and freedom from incumbrances, so as to bar or any way affect the right of such third person to maintain an action against the first grantor for breach of said covenants of seisin, and freedom of the premises from incumbrances. This section deprives the grantee, after assignment, of the power of releasing such covenants, and recognizes the right of the assignee to maintain an action to recover damages for a breach of them. Taking both sections together, the mean- ing and purpose of the legislature is too plain to be disregarded. It is manifest that a right of action for a breach of the covenant of seisin, as well as that against incumbrances, is intended to be given to the assignee of the grantee." See also Stowell v. Bennett, 34 Me. 422 ; Allen v. Little, 36 id. 175. In Wilson V. Widenham, 51 Me. 666, the court said, " The provision of the statute applies only to actions on • covenants for seisin or freedom from incumbrance,' and not to those which run with the land. The object of this statute is to give an assignee a right of action on the personal covenants, which, before, he did not have. It leaves the common law in force as to covenants real, which run with the land," and hence it was held that the provision of the act as to filing a release did not apply to one suing upon a covenant of warranty. ' The New York code (Voorhies, § 111) provides that " every action must be prosecuted in the name of the real party in interest." And see Colby v. Osgood, 29 Barb. 339, which was elaboratel)' and successfully argued for the appellant; Roberts v. Levy, 3 Abbott's Prac. Rep. (N. S.) 311. ^ The code of Ohio has, as to this, the same language as that of New York (Seney's Code, § 25), and this provision, it has been held, applies to the cove- nants for title ; Hall v. Plaine, 14 Ohio St. R. 417. ' The Supreme Court of Ohio, though professing not to go quite to the extent of the modern English cases, yet before the passage of the new code, did not in reality stop far short of them. Backus v. M'Coy, 3 Ohio, 216, is the leading case, and although the pleadings did not perhaps strictly call for the doctrine there laid down, yet it was adhered to and became the law of that State. Sherman, J., in delivering the opinion of the court, after referring to the English decisions just cited, considered that they settled that " when the heir or assignee acquires any interest in the land, however small, by even an imperfect or defective title, he shall be entitled to the benefit of all those covenants that concern the realty ; and where he has been evicted by paramount title, he is the party damnified by the non-performance of the grantor's covenants, and for such breach may sustain an action. This seems to be reasonable in itself, as well asi in accordance with the terms of the covenant. By considering the covenant of seisin as a real covenant, attendant upon the inheritance, it will form a part 330 EXTENT TO WHICH COVENANTS And recent cases in Missouri have approved and followed the Ohio course of decision. ^ of every grantee's security, and make that which otherwise must be either a dead letter or a means of injustice, a most useful and beneficial covenant. A dead let- ter, when an intermediate conveyance has taken place between the making of the covenant, and the discovery of the defect of title, and the covenantee refuses to bring suit. A means of injustice, when after the covenantee has sold and con- veyed without covenants, he brings and sustains an action that the covenant was broken the moment it was entered into, and could not thereafter be assigned. When lands are granted in fee, by such a conveyance as will pass a fee, and the grantor covenants that he is seised in fee, we can perceive no objection, legal or equitable, to this covenant, as well as the covenant 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 strenuously assailed in the argument of a subsequent case (Foote v. Bur- net, 10 Ohio, 827), was nevertheless there adopted by the court, and was consid- ered to be the settled law in the State of Ohio, even before the adoption of the present code of Civil Procedure ; Devore v. Sunderland, 17 Ohio, 60 ; Stites v. Hobbs, 2 Disney (Ohio), 573. ' Dickson v. Desire, 23 Mo. 162 ; Magwire v. Riggin, 44 id. 512. In the first of these oases, Leonard, J., after referring to the English authorities, said : " It is thus seen that the real point of difference is that in England the covenant of seisin is, under some circumstances, a mere covenant of indemnity ; but in some of the United States it is always a present covenant which, if ever broken, must be broken as soon as made, and upon which of course only one recovery can be had, the right to which accrues as soon as the covenant is entered into. The true question would then seem to be, at what time the right of substantial recovery accrues : whether at the moment of the delivery of the deed, or is it postponed under any circumstances until the actual damage is sustained ? It would seem quite impossible to hold, as we were asked to do in a case before us at the present term, that the cause of action accrues immediately, so as to set the statute of limitations in motion against the party, if we are to hold that during the whole period of its running the party could not have recovered any thing more than nominal damages ; and it would seem quite unreasonable to say that the party could not have a real recovery upon the mere formal breach, because no actual damage has resulted to him from the want of title, and yet afterwards to allow him to recover, not on account of any damage that had accrued to himself, but in respect to the loss that had fallen upon his grantee." After referring to the Ohio decisions, it was then said: '"We are disposed to take a similar view of our statute covenant. It proceeded no doubt from an instinctive feeling of the moral propriety of requiring a party who sells land, and not merely his own interest in it, whatever that may be, and conveys it by words of transfer appro- priate to such a transaction, to secure to the purchaser anie Bellis was the owner of the land, was foreclosed, and one of the plaip\.?j„/TO prevent a sale, paid off the mortgage, but it did not ap{)ear whether tlui,- was done during the lifetime or after the death of Bellis. iThe plaintiffs, who were her heirs, brought cov- enant, and the court held, on the authority of Martin u. Baker and of a quota- tion from this treatise, that the special damage having been to Belli.s, her administrator must, and her heirs could not, sue. It will be observed that the court must have considered the covenant against incumbrances to be a continuing one, as they allowed it to run with the land, from Johnson to Hamlin, and from Hamlin to Bellis, and when the actual damage happened, in her time, it then stopped. In Martin v. Baker, the heir recovered, because the actual dam- age happened to him ; in Frink v. Bellis, the heir was not allowed to recover, because the actual damage happened to his ancestor. ' Pillsbury v. Mitchell, 5 Wis. 17. « Mecklem v. Blake, 22 Wis. 495. FOR TITLE EUN WITH LAND, ETC. 333 and in Iowa the Supreme Court in a very recent case made a simi- lar decision. 1 But tlie doctrine of tlie American cases was not applied to the covenant against incximbrances without a struggle. The origi- nal object of the introduction of this covenant, — it being often connected with the covenant for quiet enjoyment and thereby ren- dered equally prospective with it,^ — it being generally treated as a covenant of indemnity, and the obvious policy of its benefit enur- ing to the owner for the time being, — have all worked against the rule which has confined the covenant for seisin within such a nar- row sphere of usefulness. Accordingly, we find that in South Carolina it has been held that the benefit of this covenant passes with the land to its assignee,^ while in some earlier cases in Mas- sachusetts,* the assignee of one who had received a covenant against incumbrances was, without objection or comment, allowed to re- cover, and in a subsequent case the language of the court in favor of the rights of the assignee was direct and explicit.^ But a few years after,^ the technical rule was adhered to in so few words as to induce the impression that it had never been doubted, and although in one case the question seems to have been thought an ' Sohofield V. Iowa Homestead Co., 32 Iowa, 317. ^ See supra, p. 89. ' McCrady v. Brisbane, 1 ISTott & McCord (S. C), 104. The authorities, however, cited in support of this were not applicable to this covenant, since they were cases arising under covenants for further assurance eminently pros- pective in their operation ; and indeed the distinction between their several natures seems not to have been very closely observed. Quoting the case from the Year Book heretofore noticed (supra, -p. 514), (" It hath been adjudged (42 Edw. III.) that where two coparceners made partition of land, and the one made a covenant with the other to acquit her and her heirs of a suit that issued out of the land, the covenantee aliened. In that case the assignee shall have an action of covenant, and yet he was a stranger to the covenant, because the acquittal did run with the land"), Cheves, J., said, " This seems almost precisely the case before us, and authorizes me to say that where the covenant runs with the land, the assignee of the fee may have the benefit of the covenant against incumbrances in a case like the present." This is of course obvious, provided it be not held that the covenant is broken once and for all, at the instant of its creation. In the quotation from the Year Book, the covenant was a prospective one, and the decision would, it is believed, have been the same at the present day in any court ; see infra. * Stinson v. Sumner, 9 Mass. 143, and Estabrook v. Hapgood, 10 id. 313. ' Sprague v. Baker, 17 Mass. 588. ' Tufts V. Adams, 8 Pick. 649. 334 EXTENT TO WHICH COVENANTS open one,^ yet when the point was directly presented within a few years past, the autliority of the earlier cases which proceeded upon the English doctrine was distinctly repudiated,^ and the question may be considered as finally settled in favor of the technical rule, not only in Massachusetts, but probably in most of the other States, with the exception as has been said, of Maine, New York, Oliio, Missouri, Indiana, South Carolina, Wisconsin, and Iowa. According, therefore, to the present weight of American author- ity, the benefit of the covenant against incumbrances is denied to an assignee, unless where it is so linked to another covenant as to have a prospective operation, and not be a covenant in prcesenti.^ .Of course no difference of opinion can exist as to the right of an assignee to take advantage of the covenants for quiet enjoyment and of warranty, which are, with entire unanimity on both sides of the Atlantic, held to run with the land for the protection of the owner in whose time the breach occurs, and until then, passing with the estate by descent or by purchase, by voluntary or by involuntary alienation,* and they may, therefore, of course, be enforced not only by the covenantee and his representatives, but by heirs, devisees and alienees, who claim under the seisin vested in him.^ ' Pettee u. Hawes, 13 Pick. (IMass.) 327. "^ Thayer v. Clemence, 22 Pick. (Mass.) 494 ; Clark v. Swift, 3 Met. (Mass.) 394 ; Whitney v. Dinsmore, 6 Cush. (Mass.) 128 ; Osborne v. Atkins, 6 Gray (Mass.), 424. ^ As where the covenant is that the purchaser " shall enjoy, &c., and that free of all incumbrances," &o., see Jeter v. Glenn, 9 Rich. Law (S. C), 376, and supra, p. 89. * Thus it has been repeatedly held that the benefit of covenants for title will pass to a purchaser at sheriff's sale, of a debtor's estate ; Carter v. Denman, 3 Zabr. (N. J.) 270; McCrady v. Brisbane, 1 Nott & McCord (S. C), 104; Lewis v. Cook, 13 Ired. Law (N. C), 196 ; Markland v. Crump, 1 Dev. & Batt. (N. C.) 94; Town v. Needham, 3 Paige (N. Y.), 646; Redwine v. Brown, 10 Ga. 320; White v. Whitney, 3 Met. (Mass.) 81; see this case more particularly noticed, infra, p. 344. ' " For instance, if A convey land to B and his heirs, to certain specified uses, or to such uses as C shall appoint, and covenant for title with B and his heirs, the right to sue upon the covenants will go with the seisin to the persons from time to time claiming under the uses limited by the conveyance or under any appointment by C under his power; so if the conveyance were to B and his heirs, to such uses as C shall appoint, and, in default of appointment, to the use of C in fee, and A covenant with C and his heirs, and C (instead of exer- cising his power of appointment) convey the estate limited to him in default of 335 Thus, ill England, it is the theory of conveyancers to vest in every purchaser the benefit of all the prior covenants which have been entered into by the former vendors, and this, though each vendor may only have covenanted against his own acts. Thus, if A, B, and D were successively vendors and purchasers of an estate, each covenanting only against his own acts, on the conveyance to C, he would acquire the same rights under A's covenant to B as B had himself done, and by a conveyance to D, tlie latter would acquire all the benefit of the prior covenants of A to B, in addition to those which Ire had personally received from C. It is evident, however, that if the defect of title were caused by A, D would have no remedy upon the covenants of B or ; so if the defect were caused by C, he could sue neither A nor B. If the covenants were general, that is, not limited to the acts of the party covenant- ing, it would be otherwise ; as for a defect caused by A, D could sue either A, B, or ; but it is apprehended that if the defect were the consequence of O's acts, neither A nor B could be held liable, as it would be unreasonable that a man should be held responsible for the acts of future owners of the estate. And, of course, a covenantee may sue simultaneously each and all of his previous successive covenantors, and recover several judg- ments against each of them ^ (just as the last liolder of a negotiable instrument may recover against all those liable thereon), although, of course, he can have but one satisfaction, and the payment by any covenantor of a judgment thus recovered against him may be pleaded in bar of any action brought against him by a subsequent covenantor who has himself paid a judgment also recovered against him, and of larger amount.^ appointment, his alienee, it appears, can sue upon A's covenants ; so, if C, in the exercise 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, 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, 7J.2 (4th. ed.) ; and see Sug- den on Vendors, 578. V ' King V. Kerr, 5 Ohio, 155 ; Foote v. Burnet, 10 id. 317. ° Thus in Wilson v. Taylor, 9 Ohio St. R. 595, Taylor conveyed land to Wilson, who conveyed to Legget, who conveyed to Weis, all with covenants of general warranty. The latter, being evicted of part of the land, recovered judgment against Legget for $414, against Wilson for $284.43, and against 336 EXTENT TO WHICH COVENANTS Mr. Preston was of opinion that covenants for title were incapa- ble of being divided as to the benefit to be derived from them, and that if a vendor sold two farms, and covenanted with their pur- chaser and liis 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 denied by Sugden, who observes, " The better opinion seems to be, that an alienee of one of the estates could maintain covenant against the covenantor where the covenants run with the Taylor for $280.23. Taylor paid the judgment of $280.23, and Weis also paid the judgment of $284.43, and then sued Taylor, who pleaded the recovery and payment in bar, and the plea was held good. " It seems,'' said the court, " that for some unexplained reason, judgments in these several actions thus simultaneously brought against the successive covenantors were taken for very different amounts, varying from about $280 to about $414. And Tay- lor, the first covenantor, having paid and satisfied the judgment against him, and which was among the smallest in amount, the question presented by the demurrer is, whether this satisfaction of the judgment against him is a bar to an action over against him by the plaintiff, who was an intermediate covenantee, after payment by the latter of a judgment recovered at the same time ? The question seems to be one of first impression, and our minds are not free from difficulty in regard to it ; but, on the whole, we are unanimously of the opinion that the plea is good. As before remarked, Weis, the last covenantee, and who suffered damage by reason of partial eviction, was entitled to his several action against all the prior covenantors. Not only was his right of action perfect against all, but the same rule of damages would apply as to all ; and, although he could have but one satisfaction, yet he was clearly entitled to recover the full amount of his damages against each. If he failed to make the proper showing in order to recover the full amount of his damages against each, it was his own fault ; and having collected and received the amount recovered against the first cove- nantor, who occupied the position, in law, of a guarantor of all the subsequent grantees, it seems to us that Weis's claim under all the covenants must be held satisfied ; and that all enforcement of the judgments against the other intermediate covenantors was wrongful, and in violation of the principle that he could have but one satisfaction. Taylor ought not to be subjected to different actions, and liable to several recoveries for the same breach of the same covenant. It follows from this that the plaintiff has mistaken his remedy. He ought, after the satis- faction by Taylor of the judgment against him, to have either resorted to a court of equity to restrain the collection of the judgment against himself, or, if circum- stances forbade that, to have Sued to recover back the money he had paid on the judgment against him, as for money had and received by Weis wrongfully, and which in conscience he ought not to retain." ' 3 Preston on Abstracts of Title, 57, 68. It seems to have been in great part owing to this reason that he stated that purchasers in general attached more importance to covenants for title than was deserved. FOB TITLE EUN WITH LAND, ETC. 337 land, and as such, an action would lie either for damages, which would be measured by the loss of the assignee, as far as he might be entitled to recover it under the covenant, or for an act to be done, e.g. further assurance, which might properly be confined to the particular proportion of the property. It does not seem that any injustice would arise by suffering several covenants to lie, although it might expose the covenantor to inconvenience ; whereas the denial of the right to each assignee might lead to positive in- justice, or if not, to greater inconvenience on tlieir part ; " ^ and this view of the law has been adopted in this country.^ So it seems to be considered in England, that where the estate is divided, as where it becomes vested in a tenant for life, with remainder in fee, and the breach of covenant affects the entire inheritance, the owner of each portion of the inheritance can sue for damages proportioned to the extent of his estate,^ and so, where the estate is cut up into ' Sugden on Vendors, 487, citing Hare v. Cater, Cowper, 766 ; Stevenson v. Lambard, 2 East, 575 ; Twynam v. Piokard, 2 Barn. & Aid. 105 ; Merceron w. Dowson, 5 Barn. & Cress. 481; Curtis v. Spitty, 1 Bing. N. C. 756; and see 9 Jarman's Conveyancing, 366. All these cases, however, except Twynam v. Pickard, were actions against assignees of a covenantor. See also West Lond. Kail. Co. V. Lond. & N. W. Rail. Co., 11 Com. Bench, 354. 2 White V. Whitney, 3 Met. (Mass.) 87; Hunt v. AmLdon, 4 Hill (N. Y.), 845; Van Home v. Crain, 1 Paige (N. Y.), 455; Astor v. Miller, 2 id. 68; McClure v. Gamble, 3 Casey (Pa.), 290; Dougherty v. Duvall, 9 B. Mon. (Ky.) 58 ; Dickinson v. Hoomes, 8 Gratt. (Va.) 406 ; Schofield v. Iowa Homestead Co., 82 Iowa, 317; Fields v. Squires, 1 Deady (C. C. U. S. Oregon), 866. •* At least the proposition is so stated in Dart on Vendors, 714 (4th ed.), re- ferring to 9 Jarman's Conveyancing by Sweet, 404, and Noble v. Cass, 2 Simons, 343. In that case a house had been devised in trust for a daughter for life, remainder to another for life, remainder over. The house had been pre- viously demised for a long term, in the middle of which the trustees brought an ejectment for and recovered possession of the premises, and also recovered from the tenant £500 damages in an action on the covenants contained in the lease, for dilapidation of the premises, which sum they invested in their own name. After the death of the tenants for life, the remainder-men filed a bill against the trustees for the transfer to themselves of the sum thus invested, but it was dis- missed by the Vice-Chancellor, on the ground that the damages had been recovered for the use of the tenant for life only, and that for any injury done to the inheritance those in remainder might have their separate action. " It was urged," said the Vice-Chancellor, " that the damages were something accruing to the inheritance, but no authority was produced to show that a court of equity has ever held that damages were any thing but the personal estate of the person who recovered them ; and it appears to me that I should be introducing a new 22 338 EXTENT TO WHICH COVENANTS undivided shares ; ^ but in Pennsylvania it has been held that all the parties entitled to the benefit of the covenants for title must join in the action .^ It is evident, however, that the doctrine which gives to subsequent purchasers the right to sue upon the covenants of a prior vendor must be susceptible of considerable qualification, in order to pre- vent 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. To obviate such a result, a decision was made in one of the earlier cases in New Tork, which has, however, been subsequently departed from. In Kane v. Sanger ,s the defendant conveyed, with 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. . . . Where a case is at all doubtful, the best way is to follow the law. Now Littleton says, section 315, ' Also as to actions personals, tenants in 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, breaking their closes, &c. In this case tenants in common shall have one action jointly, and shall recover jointly their damages, because the action is in the personalty, and not in the realty.' And Lord Coke, in commenting on this section, says, ' If an aunt and niece join in an action of waste for waste done in the life of the other sister, the aunt shall recover the damages only, because the same belongs not by law to the niece ; ' Co. Litt. 198 a. Therefore it is plain that the spirit of the law is, that with respect to injuries to land for which damages are to be re- covered by personal action, the person who brings the action is entitled to the ' Badeley v. Vigurs, 4 Ellis & Black. 71. = McClure v. Gamble, 3 Casey (Pa.), 288. " The title which the covenant was intended to assure," said Lowrie, J., who delivered 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 it must join in the action. We regard this objection as sound, and as receiving support by the reasoning of Mr. Justice Rogers, in the case of Paul V. Witman, 3 W. & S. 409 ; though in that case it 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 seisin and property divided as among themselves into different periods, we think that the action on the covenant given to secure that seisin ought to be single, otherwise the covenantor, not being able to set up the judgment of one against the other claimants, might have to pay to all much more than is required by his covenant, and might be subjected to innumerable actions for a single breach of the same covenant." 5 14 Johns. 89. FOR TITLE RUN WITH LAND, ETC. 339 covenants of warranty, certain lots to the plaintiff, who in turn conveyed them with similar covenants to different purchasers who were subsequently evicted, when the plaintiff brought suit on his covenant. It was objected that by his assignment to the different purchasers from himself, the plaintiff had divested himself of all right of action on his vendor's covenants, but the court held that as the plaintiff was bound to indemnify these purchasers, that liability entitled him to support his action, and, to avoid the obvious objection that the original vendor might still be liable to these purchasers (on the covenants which had passed with the land to them), it was suggested that the latter were, by their acceptance of the covenants made to themselves by the plaintiff, precluded from suing upon those of the original vendor.^ This decision has, however, been since overruled on both these points, and another mode adopted of meeting the difficulty referred to. In the leading case of Booth v. Starr,^ decided in Connecticut in 1814, it was held that the right of action of an intermediate pur- chaser who had himself parted with all interest in the land, did not depend merely upon his prospective liability to the purchasers from liimself, but that it could not be enforced until that liability should have been fixed by the recovery of damages by tliem, and ' In Wheeler v. Sohier, 3 Cush. (Mass.) 222, the court, in commenting upon Kane v. Sanger, said, "The grounds of the recovery were, that the plaintiff's grantees had mortgaged the premises to him for the purchase-money, so that the plaintiff 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 sus- tained in consequence of the covenant, so that the defendant was under no liability to them ; and the court held that these releases could not bar the plain- tiff's recovery ; as, by the mortgage, the seisin of the premises was in the plaintiff, and the mortgage was unsatisfied." These grounds were not, however, the only ones relied on by the court, nor perhaps would they be considered available at the present day in Massachusetts, since it has there been held that although a mortgage technically vests the legal title in the mortgagee, yet the benefit of covenants will, notwithstanding, remain with the equity of redemption, and pass with it to successive purchasers ; White v. Whitney, 3 Met. (Mass.) 81 • see infra, p. 344, and if it were held that in the case of a mortgage, the benefit of a covenant for seisin should attend the legal title in the mortgagee, it would follow that one who had given a mortgage for the purchase-money could never sue upon his vendor's covenant, because, by the mortgage, the right of action had become vested in the covenantor himself, and so merged. The law as to the benefit of covenants following the legal title in the mortgagee is considered more fully infra, p. 341 et seq. ■ 1 Conn. 244. 340 EXTENT TO WHICH COVENANTS their actual payment by liim,i and in the subsequent case in New York of Withy v. Mumford^ this decision was quoted with appro- bation, and it was moreover held that the acceptance, by a pur- chaser, of covenants from his own vendor, had no effect whatever upon his rights on the covenants given by the prior vendors in the chain of title ; and on both these points many subsequent decisions have been to the same effect.^ ' " In the present case," said Swift, J., in delivering the opinion of the court, " the grantee or covenantee of the plaintiff has been evicted, but the plaintiff has never been sued, nor has he paid the damages. The question is, whether under these circumstances he can maintain this action against the defendant, who is his immediate covenantor. The last assignee can never main- tain an action on the covenant of warranty till 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 there has been no breach of the covenant, no damage sustained. By parity of reason, the intermediate covenantees can have no right of action against their covenantors, till something has been done equivalent to an eviction ; for till then they have sustained no damage. As the last assignee has his election to sue all or any of the covenan- tors, as a recovery and satisfaction by an intermediate covenantee against a prior covenantor would not bar a suit by a subsequent assignee, such interme- diate assignee ought not to be allowed to sustain his action till he has satisfied his subsequent assignees, for otherwise every intermediate covenantee might sue the first covenantor ; one suit would be no bar to another ; they might all recover judgment and obtain satisfaction, so that a man might be liable to sundry suits for the same thing, and be compelled to pay damages to sundry different cove- nantees for the same breach of covenant. In the present case, the plaintiff cannot know that his covenantee who has been evicted will ever sue him; he may bring his action directly against the defendant ; a recovery in this suit, and payment of the damages, would be no bar ; the defendant could then have no remedy but by petition for a new trial, and if the plaintiff in the mean time should become unable to refund the money, the defendant would, by operation of law, be compelled to pay the same demand twice, without redress. But if the principle is adopted that the intermediate covenantee can never sue till he has satisfied the damages, no such injustice can ensue. The subject may be con- sidered in another view. In all these cases it is the duty of the first covenantor to make good the damages for a breach of the covenant, and to indemnify all the subsequent covenantees. Each subsequent covenantor is liable to all the subse- quent covenantees, and, on paying the damages, will have a claim for indemnity against a prior covenantor. The nature, then, of the engagement of the first covenantor is to indemnify all the subsequent covenantees from all damages arising from his breach of the covenant." 2 6 Cowen, 137. ' Chase V. Weston, 12 N. H. 413; Williams' u. Wetherbee, 1 Aik. (Vt.) 239 ; Thompson v. Shattuck, 2 Met. (Mass.) 615 ; Wheeler v. Sohier, 8 Cush. FOE TITLE RUN WITH LAND, ETC. 341 It may therefore be considered as settled, in accordance with principle and authority, that where one has parted with all his interest in the land, he parts also with all right to or control over the covenants which run with it, and he can only regain that right over them by being made liable upon his own covenants and satis- fying that liability ; ^ and when the conveyance has been of part of the land only, the same doctrine will, it is apprehended, apply proportionally. But from the doctrine that the benefit of covenants for title passes, with the legal estate, through successive alienations, and vests in and is divisible among its owners for the time being, it would seem in strictness to follow that where a mortgage of the land is given, the benefit of the 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,^ but it would seem that wherever the common-law relation of the mort- gagee as the holder of the legal title is recognized, as is the case in England and some of our States, he must, on strict principles, absorb the whole benefit of the covenants, to the exclusion, in a court of law, of any subsequent purchaser of the equity of redemp- tion. Thus, it has been decided in England that an equity of redemption is neither such an estate as can render an assignee liable for a breach of a covenant for quiet enjoyment of an easement granted out of it,^ nor such as will carry to an assignee the benefit (Mass.) 222; Suydam u. Jones, 10 Wend. (N. Y.) 184; Baxter v. Ryerss, 13 Barb. S. C. (N. Y.) 283 ; Le Ray de Chaumont v. Forsythe, 2 Pa. 507 ; Markland v. Crump, 1 Dev. & Bat. (N. C.) 94; Herrin v. McEntyre, 1 Hawks (N. C), 410; Thompson u. Sanders, 6 Monr. (Ky.) 358; Redwine u. Brown, 10 Ga. 311; Wilson v. Taylor, 9 Ohio St. R. 595. In Griffin o. Fairbrother, 1 Fairf. (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 main- tained. ' Allen V. Little, 36 Me. 170 ; Vancourt v. Moore, 26 Mo. 98, where the text was cited and approved. ' McMurphy v. Minot, 4 N. H. 251 ; Cavis v. McClary, 5 id. 629 ; Tufts v. Adams, 8 Pick. (Mass.) 650 ; White v. Whitney, 3 Met. (Mass.) 87. See this case, infra, p. 344. ' The Mayor of Carlisle v. Blamire, 8 East, 487. In this case, one Denton 342 EXTENT TO WHICH COVENANTS of a covenant for the payment of rent ; ^ and in a recent case, where a purchaser having mortgaged the premises was afterwards evicted by a paramount title, and sued his vendor, at law, upon the covenants he had received from him, a plea that at the time of the eviction the plaintiff had no estate or interest in the land, was held to be a bar to the action.^ So in Kentucky, where the facts were similar, it was held that so long as the mortgage remained un- paid, the covenants for title vested with the legal estate in the mortgagee.^ Such a course of decision would obviously lead to the embar- rassing result that where land was sold with covenants 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 therefore vest in the same party who was also bound by them, and hence the pur- granted to the corporation of Carlisle so much of the river Caldew as should be sufficient for their mills, and covenanted that neither he nor his heirs nor assigns should ever divert its course. The defendants were sued as assignees of all the estate, right, title, and interest of Denton, and the breach alleged was the erec- tion of a wear or dam by them across the river. They pleaded among other things that they were not assignees of all the estate, &c., of Denton, and upon this an issue was joined, and at the trial it appeared that long before the breach of covenant one Wilson was mortgagee of the property, and the defendants were seised only of the equity of redemption as devisees of Denton's heir-at-law. They were therefore nonsuited, and, as the court in banc held, properly. " It is impossible," said Lord EUenborough, " to say that the defendants were assign- ees of the estate of Denton within the sense and meaning of the terms in which this issue was framed, and which terms respect that description and quality of estate alone, namely, legal estate, in virtue whereof parties are at all liable to actions of covenant as assignees." ' Pargeter v. Harris, 7 Queen's Bench, 708. ^ Thornton u. Court, 3 De Gex, M. & G. 293 ; see this case noticed more fully, infra, p. 346. ^ McGoodwin u. Stephenson, 11 B. Mon. (Ky.) 22. "The covenant in the deed," said the court, " is the usual covenant of title, and runs with the land. It is well settled that a mortgagor, even after forfeiture, is considered in equity, as still having the ownership of the estate, the land being only a pledge or secu- rity for the mortgage-money. At law, however, his rights stand on a different footing. . . . Whenever the money specified in the mortgage has been paid, the mortgage is fully satisfied, and even without a formal release, the title, by the act of payment, reverts to the mortgagor, and, of course, in 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 de- prived of the legal estate, and cannot sue for a breach of the warranty of title." FOR TITLE RUN WITH LAND, ETC. 343 chaser could not, even upon an eviction of tlie whole estate, have any remedy in a court of law if, at the time of his eviction, the mortgage remained unpaid, but his only remedy would be in a court of equity.^ It is, however, familiar, that in many of our States the doctrine that " a court of law knows nothing about mortgagor and mort- gagee " ^ 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 security for the payment of the debt. This has been carried so far in New York that an assignee of the mortgage takes it subject not only to the equities of the mortgagor, but also to the equities of those who succeed to his estate,^ and hence in that State, the rule enforced in the cases just cited would meet with little favor, and it has been there decided that where land is conveyed with a covenant of warranty, and a mortgage given to secure the unpaid purchase-money, and the mortgage is afterwards foreclosed and the premises sold, the benefit of the covenants passes to the purchaser, notwithstanding the mortgage.* And in other cases elsewhere, the doctrine that covenants for title will pass with the equity of redemption has been distinctly recognized. Thus, in a case in Massachusetts, the owner of certain premises, after having mortgaged them, conveyed them with a cove- nant of general warranty to a purchaser whose estate was afterwards levied iipon by a creditor and sold to the plaintiff, who, after having been evicted by the mortgagee, brought suit upon the covenant, when ' See also infra, Ch. XI. " Per Bayley, J., in Partridge i>. Bere, 1 Dowl. & Ryl. 273 ; cited in McGoodwin v. Stephenson, supra, p. 342. See Cross v. Robinson, 21 Conn. 387, cited infra. ' Van Rensselaer ». Stafford, Hopkins' Ch. (N. Y.) 569 ; Stafford v. Van Rensselaer, 9 Cowen (N. Y.), 316 ; Poillon v. Martin, 1 Sandford's Ch. (N. Y.) 569 ; see the note to Bow v. Dawson, 3 Leading Cases in Equity, 374, where Judge Hare says, " Such a course of decision seems to be both unsound and dangerous. A mortgage is undoubtedly a chose in action, but it is a chose'in action fortified and supported by the possession of the legal title in the estate mortgaged. ... It is, accordingly, well settled in England, that the assignment of a mortgage for value, and without notice, gives the assignee all the rights of a bona fide purchaser, and exonerates him from all other equities than those of the mortgagor." And such is the law in Pennsylvania ; Pryor v. Wood, 7 Casey (Pa.), 142. ■• Town V. Needham, 3 Paige (N. Y.), 646 ; see also Andrews v. Wolcott, 16 Barb. S. C. (N. Y.) 21 ; Brown v. Metz, 33 111. 339. 344 EXTENT TO WHICH COVENANTS it was objected that all the benefit of the covenants for title had passed with the legal estate to the mortgagee, and hence that the plaintiff could not recover ; but the court held that although a mort- gagee was certainly entitled to the benefit of the covenants so far as necessary to protect his interest, yet that, subject to this, their benefit would remain with the equity of redemption, and pass with it, whether by voluntary or involuntary alienation, to its purchaser.^ 1 White V. Whitney, 3 Met. (Mass.) 81. " By our laws,'' said Shaw, C. J., who delivered the opinion of the court, " a mortgage is considered, as between the mortgagor and mortgagee, and so far as it is necessary to give fuU effect to the mortgage as a security for the performance of the condition, as a convey- ance in fee ; but for all other purposes it is considered, especially until entry for condition broken, as a mere charge or incumbrance, which does not divest the estate of the mortgagor. He is deemed seised so far that he can convey it, sub- ject to the mortgage ; he may make a second mortgage ; it may be attached for his debts ; he is considered as having all the rights and power of an owner, except so far as it may be necessary to hold otherwise, in order to give effect to the mortgage. The interest of the mortgagor is thereby regarded as an estate, though in legal strictness, and as against the mortgagee, it is an equity of re- demption. . . . These principles are so familiar that it is hardly necessary to multiply authorities in support of them. In the case of Sumner v. Williams, 8 Mass. 162, in which there was a great diversity of opinion on some points, the conveyance upon which the covenants were made was, upon the face of it, the conveyance of an equity of redemption, because it was described as subject to one mortgage, which was excepted in the covenants against incumbrances ; but it was not doubted that the conveyance of an equity of redemption was that of an estate to which covenants real could be annexed. Were it otherwise, in case of the conveyance of an estate with the usual covenants of seisin and warranty, but described to be subject to a mortgage which the grantor stipulates to pay off and discharge, and which he accordingly does pay off and discharge, still the cove- nants in futuro and all covenants running with the land would be inoperative. No ; the general result of the rules of law upon this subject seems to us to be, that a mortgage, though an estate in fee to the mortgagee, to the extent necessary for his security, is, to all other purposes, an estate in the mortgagor ; and the mortgage, except so far as the rights and security of the mortgagee are con- cerned, is regarded as a burden or charge only upon the estate, 'and when removed or discharged, it leaves the estate in the hands of the mortgagor or his grantees, attaching creditor or assignees in fact or in law, in the same condition as if such mortgage had not existed. We are therefore of opinion that the con- veyance from the defendant was the conveyance of an estate to which covenants real would attach, and which covenants might pass with the estate to a grantee or assignee. . . . Suppose A, holding an estate protected by covenants of seisin and warranty against all incumbrances, but subject in fact to an outstanding mortgage, or to some defect of title, should make a mortgage to B, afterwards his equity of redemption is attached by C, his creditor, and in due time and in ETC. 345 Such a course of decision is certainly supported by strong reasons of convenience, as it is by the weight of recent authority in those States where the mortgagor is invested with most if not all the incidents of legal as well as equitable ownership.^ legal form this equity of redemption is sold at auction on execution, and con- veyed to T> 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 estate, and inseparably annexed to it. B, the mortgagee, being first in time, would be first in right, so far as necessary to his security as mortgagee ; he is deemed seised of the estate, and of course to the same extent that he holds the estate, he is the assignee of the covenant. But. D, the purchaser at the officer's sale, purchases the whole estate, subject to B's mortgage ; to the same extent and under the same limitations that he takes the estate, he is assignee of the covenant. Should B enter to hold under his mort- gage and actually foreclose, he would hold the whole benefit of the covenant ; but, if D should pay off B's mortgage, as he would have a right to do, this would extinguish the mortgage ; he would hold the whole estate, and, of course, the whole interest in the covenant, as assignee in law. In such case, if suit were to be brought on the covenant, before either foreclosure or redemption, there might be a question who would have a right to sue, or what damages the plaintiff would have a right to recover. But no such question can arise here, 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 plaintiff by the sheriff's deed ; and he alone now has an interest. It may be added, by way of further illustration, that the purchaser at the sheriff's sale takes a defeasible estate only ; the debtor has a right to redeem within a, year, and re- invest himself with the estate ; and should he do so, he would be reinstated in his right to the covenant of warranty attending it.'' ' Wilson V. Widenham, 51 Me. 566 ; Harper v. Perry, 28 Iowa, 58 ; Devin V. Hendershott, 32 id. 192 ; Wright v. Sperry, 21 Wis. 33A. vSo where premises were conveyed in mortgage with covenants for title, and the mortgagor after- wards released to the mortgagee, although this might operate as a merger of the lesser estate in the greater, yet it was held that it did not extinguish the cove- nants contained in the mortgage ; Lockwood v. Sturdevant, 6 Conn. 373. " Mort- gage deeds," said Hosmer, C. J., who delivered the opinion, " generally, if not universally, are secured by covenants of title, and the equity of redemption is ex- tinguished by release or foreclosure. In the event of a release from the mortgagor, it cannot be presumed to have been the intention of the parties to extinguish the mortgage title, and in both events, of release and foreclosure, it would be unjust and inconvenient to hold this as legal doctrine. The title to the estate may be found fatally defective, and of this the case under discussion is a full illustration. That 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 mortgage title, guarded by covenants, is the plaintiff's only security, and it would be flagrantly un- just and in opposition to general convenience to hold that the title by mortgage 34:6 EXTENT TO WHICH COVENANTS As was very recently said of this class of cases : " It is maintained that they make an exception to the general rule that covenants run only with the land, or with the legal title. We think, however, they are in harmony with it, and only decide that for some pur- poses the legal title is in the mortgagee, and for others, in the mort- gagor." 1 In fact, the only difference between a mortgagor's equity of redemption and any other equitable title is that the former has struggled into recognition in a court of law, where its place is now firmly established, at least in most of our States. As to other equitable titles, as an English author has recently said, " Where the estate is merely equitable, there can be no assignee at law, and the 'covenants cannot be enforced at law by an equitable assignee." ^ It has, however, been recently held in Iowa that where a purchaser of land borrows the purchase-money from a third party, to whom, as security, the conveyance is made, the former is entitled to the benefits of the covenants contained in the deed to the latter.^ And even where a court of law deems itself forced to consider the mortgagee as the holder of the legal estate so as to become entitled to the benefit of all the covenants which pass with it to the exclusion of the owner of the equity of redemption, yet the right of the latter to the interposition of equity is sufficiently obvious upon general principles.* This was well exemplified in the recent case in England of Thornton v. Court,^ where the plaintiff having pur- chased 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 the defendant upon the covenant. The latter pleaded that at the time of the eviction the nlaintiff had conve3'«d the legal estate to the mortgagee, and had no estate nor interest in the premises remain- ing in him. This 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 should merge and the plaintiff be remediless. Upon the same principle, upon decree of foreclosure, the mortgagee would be without remedy if his title should prove defective," and this decision was approved and followed in the late case of Lloyd V. Quimby, 5 Ohio St. R. 264. See also Andrews v. Wolcott, 16 Barb. S. C. (N. Y.) 21. ' Wright t). Sperry, 21 Wis. 834, supra. " Dart on Vendors (4th ed.), 714. ' Harper v. Perry, 28 Iowa, 58, supra. * See Dart on Vendors (4th ed.) , 714. ° 3 De Gex, M. & G. 293. ETC. 347 mortgage-money, and that it was in full satisfaction of the mortgage debt and of all demand which the mortgagee might have against the defendant under the covenant contained 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 defendant, — for a reference to a master to assess the damages, — and for payment by the defendant of such sum as might be awarded therefor, deducting what should be found to have been properly paid by the defendant in satisfaction of the mortgage, and the court were clearly of the opinion that the plaintiff was entitled in equity to the benefit of the covenant, and directed an action at law to be brought by the plaintiff, in which the defendant should be restrained from setting up in his defence, by pleading, evidence, or otherwise, the mortgage executed by the plaintiff, or the indorsed release of the covenant. ^ ' " The defendant in this case," said Lord Justice Bruce, "entered into a covenant for the peaceable enjoyment by the plaintiff of an estate which the defendant sold to him. The plaintiff having paid his purchase-money, entered into possession accordingly. The plaintiff then mortgages his property once or twice, as he was entitled to do, so parting with the legal estate and with it the legal right to bring an action of damages ; but he became entitled to redeem the property, and to reinstate himself in the fulness of his original right. In this state of things an adverse or paramount title is asserted, and the plaintiff, being in possession, defends himself at law unsuccessfully. The paramount claim, which was adverse to all the plaintiff's rights, succeeds, and the plaintiff is evicted. No man can doubt that, in that state of circumstances, the plaintiff has a right to recover some damages, some substantial damages, from the covenantor whose covenant has thus been broken. The defendant, the covenantor, being aware of this, applies to the mortgagee, in whom was the legal estate, as I have said, — a legal estate carrying with it, of course, the whole right to sue on the covenant, — and pays him off, acquiring thereby the right the mortgagee had, and takes at the same time an acknowledgment from the mortgagee that the payment is in full of all demands upon the covenant, thereby creating, according to my present opinion, a case of accord and satisfaction, rendering it impossible for him ever to be sued on the covenant. The plaintiff, therefore, is left entirely without remedy in a court of law by the act of the defendant, and he comes to the court asking (whether in a perfect form or not is a matter unimportant) for an assess- ment of damages either here or in a court of law, which he would have plainly had a right to have assessed in a court of law, but for the right acquired by the defendant. I confess, if that be, as I believe it is, the true state of things, there appears to be only one course to be taken. There is a right in the mortgagee, or the person to whom the mortgage has been transferred, to payment of every shilling of his advance, with interest ; and there must also be assured to the plaintiff a right to ascertain the amount of damages to which he is entitled at 348 EXTENT TO WHICH COVENANTS It has been already stated that where one has parted with all his interest in the land, he parts also with all right to or control over the covenants which run with it,^ and it necessarily follows that a release of those covenants made after such conveyance,^ will be as wholly ineffectual against the purchaser as a second conveyance of the land itself would be.^ law. The amount of damages cannot, I think, — and that seems to be the opinion of my learned brother also, — be ascertained by us without the consent of both parties to the litigation. Perhaps, even if both parties consented, we might decline to take upon ourselves such a jurisdiction ; but I am rather disposed to think that, upon the request of both parties, we might take upon ourselves the burden of so doing." The following was the order made in the case : " The plaintiff, by his counsel, undertaking to bring, in his own name, such action at law as he shall be advised, on the covenants in the pleadings mentioned, and to deliver the declaration in such action within three weeks from the date of this decree, and to proceed to the trial of the said action at Chester with due diligence, it is ordered that the defendant be restrained from setting up in his defence to such action, by pleading, or in evidence, or otherwise, the deed or deeds of mortgage executed by the plaintiff, or the memorandum indorsed on the mortgage deed of the 25th of April, 1842, in the pleadings mentioned; and it is ordered that execution in the said action do not issue without the leave of this court. Reserve further direc- tions and costs till after the trial of the said action. Liberty to apply." 1 Supra, p. 'dil. ^ For the eifect of a release of the covenants made by one who is at the time the owner of the land, see infra, p. 352. " Middlemore v. Goodale, Cro. Car. 603, infra, p. 362 ; Chase v. Weston, 12 N. H. 413 ; Crooker v. Jewell, 29 Me. 627 ; Prescott v. Hobbs, 30 id. 346 ; and see the provisions of the Revised Statutes of Maine, cited supra, p. 328, which leave the common law in force as to covenants which run with the land ; Wilson V. Widenham, 61 Me. 666 ; Alexander ». Schreiber, 13 Mo. 271 ; Cun- ningham V. Knight, 1 Barb. S. C. (N. Y.) 405. Lewis v. Cook, 13 Ired. Law (N. C), 193, was decided upon an analogous principle. A man and his wife, seised in her right, sold land to Harrison by a conveyance deficient as to the private examination of the wife, and which, therefore, only passed the husband's life-estate. The purchaser resold, with a general covenant of warranty to Hower- ton, who sold again to Green, in April, 1842, by a deed which contained a clause assigning " all the covenants in the deed of Harrison warranting the title of said land, and all other covenants in said deed contained." In March, 1842, how- ever, the land had been levied upon under execution against Howerton, and some months after was sold at sheriff's sale, and purchased by the plaintiff, who continued in possession until the death of the first vendor, when he was evicted by the heirs of the wife, and brought covenant against the executor of Harrison. It was objected to his recovery that the deed from Howerton to Green not only professed to pass the estate, but expressly passed the covenant of warranty ; and that although it was overreached in regard to the estate, by the sheriff's sale and FOR TITLE RUN WITH LAND, ETC. 349 So long, however, as the covenantee remains the owner of the land, a release by him to his covenantor of the covenants given by the latter, will of course be binding as between themselves,^ and indeed whenever a grantor becomes reinvested with the estate which he purported to convey and to warrant and defend, his obli- gation iu that regard ceases, being extinguished when the estate itself ceases.^ It would seem that in England the burden of a covenant cannot be removed otherwise than by an instrument of equal solemnity with that creating it, upon the application of the deed, yet that this could not affect the assignment of the covenant, the benefit of which had passed to Green. "But," said the court, "this cannot be so. The incident cannot be passed without the principal. If the principal does not pass, how can the incident pass ? They are inseparable. Can the substance pass with- out the shadow, or the shadow without the substance ? There is no authority or reason to support the proposition, that a covenant annexed to an estate and run- ning with it, can be severed and assigned so as to be passed by itself, and restrained by itself, and thereby give an independent cause of action. To show the absurdity of the idea, take this very case. The plaintiff, under the deed of "the sheriff, goes into possession, and is evicted by title paramount; he has a cause of action, but the argument is, he has no covenant to sue on ; and Green has a covenant, but no cause of action, for he has not been evicted. So the covenantor escapes from his obligation and cannot be sued by either. Again, is it reasonable or right that a debtor finding his estate bound by executions of prior teste, should have the power to sever from the estate covenants annexed thereto for its protection, and assign them to a third person, whereby the estate thus ' stripped naked,' would sell for nothing, and his creditors be defrauded ? " ' Thus it has been frequently held that a vendor may be a competent witness in support of the- title of his vendee, upon being released from the covenants for title given by him ; Paul v. Frost, 40 Me. 293 ; Sargent v. Gutterson, 13 N. H. 467 ; Qlark v. Johnson, 5 Day (Conn.), 373 (overruling Abby v. Goodrich, 3 id. 433) ; Van Hoesen v. Benham, 16 Wend. (N. Y.) 165 ; Ford v. Walsworth, 19 id. 834; Cunningham v. Knight, 1 Barb. (N. Y.) 405; Littlefield v. Getchell, 32 Me. 892; Field v. Sijell, 4 Cush. (Mass.) 504; Rhines v. Baird, 5 Wright (Pa.), 262 ; Lawrence v. Senter, 4 Sneed (Tenn.), 62 ; Arnold v. McNeill, 17 Ark. 185 ; Cooper V. Cranberry, 33 Miss. 117 ; of course without such a release a vendor would not be a competent witness, Elliott v. Boren, 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. Cassidy, 9 Ind. 66; Thomas v. Maddan, 14 Wright (Pa.), 266; Gunter v. Williams, 40 Ala. 572. ^ Brown v. Metz, 33 111. 339. A different rule, however, may sometimes apply where the merger would otherwise operate as an extinguishment of cove- nants of which third parties were entitled to the benefit. 350 EXTENT TO WHICH COVENANTS maxim, quo modo ligatur eodem modo dissolvitur} On this side of the Atlantic, however, there have been many decisions to the effect that a parol dispensation with the performance of a sealed contract is valid ; upon the ground that although the contract itself cannot be dissolved unless by a specialty, yet that the rights proceeding from it may be varied or released by matter in pais,^ or even by parol.^ But whatever may have been the agreement between the cove- nantor and the covenantee as respects the dispensation of the covenants or alteration of the rights which they confer, it has been decided in New York that an assignee of the land, and conse- quently of the covenants which run with it, cannot be affected by any equities created at the time the latter were entered into, of which he had no notice. In Suydam v. Jones,* premises which were subject to a mortgage were conveyed with covenants of war- ranty and for quiet enjoyment, and in a suit ou these covenants by an assignee of the purchaser, a plea that at the time of the execu- tion of the defendant's deed it had been agreed that the purchaser should assume and pay the mortgage as part of the consideration, ' Rogers v. Payne, 2 Wilson, 376 ; Kaye v. Waghorne, 1 Taunt. 428 ; Cord- went V. Hunt, 8 id. 596 ; Harris v. Goodwyn, 2 Man. & Grang. 405, note (a), of Sergeant Manning to May v. Taylor, 6 id. 262 ; West v. Blakeway, 2 id. 729 ; Piatt on Covenants, 591. ^ Drury v. Improvement Co., 13 Allen (Mass.), 168, where tbe question arose upon the release of a covenant of warranty. 3 United States v. Howell, 4 Wash. C. C. R. 620; Fleming v. Gilbert, 3 Johns. 528 ; Langworthy v. Smith, 2 Wend. (N. Y.) 587 ; Dearborn v. Cross, 7 Cowen (N. Y.), 48 ; Leavitt v. Savage, 16 Me. 72 ; Marshall v. Craig, 1 Bibb (Ky.), 379. Many of the cases suggest the analogy between such a parol dis- pensation and a license to exercise dominion over' land, which, while unrevoked, is a justification for any acts done under its authority, and some of the earlier English cases were in harmony with those just cited ; 1 Roll. Abr. 433, pi. 6 ; id. 455, pi. 1 ; Blackwell v. Nash, 1 Strange, 535 ; and in Jones v. Barkley, 2 Dong- las, 684, it was held that a tender of performance and waiver of it (the evidence of which must always rest in parol) were equivalent to actual performance. The later English 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 will be a bar to an action ; United States V. Howell, supra; Shaw v. Hurd, 3 Bibb (Ky.), 371; note on "License" in 2 Am. Leading Cases ; note to Cumber v. Wane, in 1 Smith's Leading Cases. ' 10 Wend. (N. Y.) 180. FOR TITLE EUN WITH LAND, ETC. 351 was held bad on a general demurrer, the court saying that " if the covenant passes to the assignee with the land, it cannot be affected by the equities existing between the original parties, any more than the title to the land itself," and that " to allow a secret agreement in opposition to the plain import of a covenant running with the land, to control and annul it in the hands of a bona fide assignee, would be a fraud upon such assignee which the law would not tolerate," and in the subsequent case of Greenvault v. Davis,i this decision was approved, and it was held that although as between covenantor and covenantee the former might, in mitigation of damages, show the consideration to have been actually less than that expressed in the deed, yet such evidence was inadmissible in an action brought by the assignee of the covenantee.^ So, too, where a certain bond was determined to be, in equity, a release 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 benefit of the covenant,^ and the doc- trine of these cases has been recently recognized and applied in others.* » 4 Hill (N. Y.), 643. = But see Martin u. Gordon, 24 Ga. 536, infra. ' Kellogg u. Wood, 4 Paige's Ch. R. 678, 616. * Brown v. Staples, 28 Me. 683 ; Hunt v. Orwig, 17 B. Mon. (Ky.) 84. In Alexander v. Schreiber, 13 Mo. 271, 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 Alexander, who subsequently conveyed to Schreiber, by deed containing implied covenants from the words " grant, bargain, and sell." (See as to this the case of Alexander v. Schreiber, 10 Mo. 460, and infra, Ch. X.) Schreiber mortgaged the property by deed of trust, under which it was sold and purchased by Heisterhagen, who afterwards commenced a suit at law in the name of Schreiber against Alexander, pending which Alexander obtained from Chouteau a release of the mortgage. Judgment was, however, recovered against him for the amount of the consideration-money, and affirmed by the Supreme Court (10 Mo. 460). After the affirmance, Alexander having applied to Schreiber (the nominal plaintiff and original covenantee), "and obtained a paper from him professing to release the damages recovered, so far as he rightfully could release them" (see as to the effect of such a release, infra), filed a bill in equity to enjoin the judgment, alleging the above facts, and that at the time of Schreiber's purchase 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. The court, in dismissing the bill, said : ' ' We are of opinion that under the purchase of Heisterhagen, he acceded to all the rights imported in the conveyance of Alexander to Schreiber, 352 EXTENT TO WHICH COVENANTS But although a purchaser may not be affected by equities exist- ing between the covenantor and covenantee of which he 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 action brought upon those covenants by a subsequent purchaser from him.^ So, too, including the use of his name in the suit at law, and that if any private under- standing between the- latter had been ever proven, it would not have been binding upon the conscience of the former, unless brought home to him at or before the period of his purchase. What the rights imparted by that conveyance were has been previously decided by this court, in a suit at law between the same parties, concerning the same transaction, and although the release by Chouteau might perhaps have been admissible enough in that suit, under proper pleadings, to have reduced the damages to a sum merely nominal, that consideration furnishes to our minds but an additional reason why it cannot be availed here. It may not be amiss to add that in the application (as above) of the general principles by which this case must be governed, any suggestion of seeming hardship or inequality between the parties is, to our minds, sufficiently answered and re- pelled by the prompt and continuous offer of Heisterhagen to reconvey the land to Alexander, upon payment of the judgment at law.'' As to this see supra, p. 281. ' Thus, in the early case of Middlemore v. Goodale, Cro. Car. 503, "the defendant, by indenture, enfeoffed J. S. of such lands, and covenanted for him- self and his heirs with the feoffee, his heirs and assigns, to make further assurance upon request, which lands J. S. conveyed to the plaintiff, who brings this action, because the defendant did not levy a fine upon the plaintiff's request. The defendant pleaded release from J. S., with whom the first covenant was made, and it was dated after the commencement of this suit ; and thereupon the plaintiff demurred, and all the court agreed, that the covenant goes with the land, and that the assignee at the common law, or at leastwise by the statute, shall have the benefit thereof; secondly, they held that although the breach was in the time of the assignee, yet if the release had been by the covenantee (who is a party to the deed, and from whom the plaintiff derives) before any breach, or before the suit commenced, it had been a good bar to the assignee from bringing this writ of covenant. But the breach of the covenant being in the time of the assignee, for not levying a fine, and the action brought by him, and so attached in his person, the covenantee cannot release this action wherein the assignee is interested : whereupon, rule was given that judgment should be entered for the plaintiff." This case was cited with approbation in Brown v. Staples, 28 Me. 503, as deciding that a covenantee, while owner of the land, might release or annul the covenant, and that the land would pass to his grantee discharged of its benefit ; but the case of Brown v. Staples itself decided no more than that when, after the covenant had been annulled, the purchaser bought " with a hwiohdge of the facts, he could not acquire more extensive rights than the covenantee had ; '' but in a case in Georgia, it was said, " If the bond had ETC. 353 where, either by act of law or of the parties, the estate conveyed is revested in the covenantor, the covenants will be deemed to be extinguished,! but not unless the estate so revested were the identical one conveyed,'^ as otherwise the rights of third parties might be prejudiced.^ In a somewhat recent case in Massachu- setts, it was said that there were peculiar reasons why the re- lease of the covenants for title might be so closely connected with the conveyance of real estate as to become a proper subject of record in the registry of deeds ; * and if so, it would seem to follow been a release, it would, according to Middlemore v. Goodale, Cro. Car. 503, have extinguished the covenant, and therefore would have prevented it from passing to the purchaser, and this whether she purchased with or without notice of such release ; " Martin v. Gordon, 24 Ga. 536 ; see this case infra. ' Litt. § 743; Coke's comments thereon, 490 a; for, says Preston, "all the beneiit of the warranty was in the person liable by force of the war- ranty ; " Touchstone, 201 ; Brown v. Metz, 33 111. 839 ; Goodel v. Bennett, 22 Wis. 565. ^ " But if a man make a feoffment in fee, with warranty to the feoffee his heirs and assigns, and the feoffee reinfeoff the feoffor and his wife, or the feoffor and any other stranger, the warranty remaineth still (' for the sake,' says Preston, Touchstone, 201, ' of the wife and the stranger') ; or if two do make a feoffment with warranty to one and his heirs and assigns, and the feoffee reinfeoff one of the feoffors, the warranty doth also remain ; " Co. Litt. 390 a ; Biiney v. Hann, 3 Marsh. (Ky.) 325; Hobbs v. King, 2 Met. (Ky.) 139, in which last case the latter part of the opinion of the court shows, what does not otherwise appear in the report of it, that the land originally conveyed was that of the wife. ^ See supra, p. 348. * Field V. Snell, 4 Cush. (Mass.) 50. The court, in deciding that before a grantee had incumbered or conveyed 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 release of an ordinary kind, or writing obligatory," said Dewey, J., who delivered the opinion, "it would not be a proper subject for record in the registry of deeds. But as a release of a covenant running with the land and attached to a deed already the subject of record, there are peculiar reasons why such a release might be held to be so closely connected with the conveyance of real estate, .as to become a proper subject for record in the registry of deeds. If the release materially affects the title and interest in real estate, or any incidents therewith connected, then such instrument, thus quali- fying or releasing an interest in the estate, or in any covenants connected there- with, 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 sub- sequent purchaser, as a release or quitclaim of some portion of the land, or of some undivided interest in the estate, or a grant of an easement on the same, 23 354 EXTENT TO WHICH COVENANTS that an unrecorded release would be inoperative as against a pur- chaser without notice ; ^ and altliough in a recent case in Maine the court seemed to be of opinion that such a release did not come within the registry acts,^ yet very lately in Pennsylvania it was distinctly held that a release of the covenants for title fell within the words and the spirit of the registry acts of that State.^ But in a former part of this chapter it has been shown * that although all the covenants fOr title, without distinction, run with of all which latter instruments the record would be effectual notice to a sub- sequent purchaser. These considerations will have their proper weight, whenever a case arises upon such covenant of warranty, by 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 will, in such case, become necessary to decide the question, whether such release, duly executed and recorded in the registry of deeds, will effectually discharge the grantor from the covenant of warranty, as respects an assignee of the land taking the same subsequently." ' 3 Washburn on Real Property, 403. " Littlefield v. Getohell, 32 Me. 392. The court expressed the opinion that " purchasers are not entitled to regard the registry as affording information re- specting the rights of action on covenants contained in the deeds recorded," though the decision itself was limited to the point that a release to a covenantor, by a purchaser from him, would be good as between themselves, so as to render the former a competent witness for the latter. 5 Susquehanna Coal Co. v. Quick, 11 P. F. Smith (Pa.), 339. " The release of all warranties, covenants and liabilities contained in the deed from Q. to Q.," said the court, " fell within the words of the act of the 18th of March, 1775, as a deed concerning lands, tenements and hereditaments, and was, therefore, entitled to be proved, acknowledged and recorded. A general warranty is a real cove- nant descending with the title, and passes to the assigns by its express terms. It is often important to the purchaser to see that the title is defended by cove- nants of warranty. It is apart of the deed, and evidently concerns the land which is conveyed by it. Perhaps it might be important the release should be recorded to protect the warrantor against suit of a subsequent purchaser without notice.'' And, as has been well remarked, "As covenants for title are a valuable part of an estate, the release seems so far to partake of the nature of a conveyance of a portion of the estate, that the publicity of record ought to be required for the protec- tion of purchasers. But when a release is not for the sake of any benefit to the covenantor, but for some collateral purpose, as to Qualify him as a witness, and there is no intention or design to do any thing beyond that specific purpose, especially when, as is usual, no consideration is paid, and the design of the release is as well, or even better, accomplished by restricting the operation of the release to that specific design, we feel confident that the courts will sustain the claims of subsequent owners to the benefit of the covenants, especially when there is no notice of the release ; " Essay in 11 Amer. Law Reg. 265, 266. * Supra, p. 318. FOE TITLE R0N WITH LAND, ETC. 355 the land until breach, yet that the covenants for seisin, for right to convey and against incumbrances, are, in most of our States, prac- tically deprived of this capacity by being held to be broken, if at all, as soon as made. Hence the foregoing remarks must be limited in their application to the covenants for quiet enjoyment, for further assurance and of warranty. But as respects the three covenants first named, there still remains to be considered the effect of their release, or of a convey- ance of the land, upon the liabilities and rights of the parties, and as the same principles apply equally to each of these covenants, it will be understood, in order to avoid repetition, that when the covenant for seisin is spoken of, the same remark applies to the covenants for right to convey and against incumbrances. Wherever it is held that the breach of the covenant for seisin occurs at the moment of its creation, it must of course follow that a subsequent assignment of the land conveys to the purchaser no legal right to sue upon the broken covenant. That right remains in the covenantee and his personal representatives. ^ But in case he has parted with the land, if, notwithstanding such conveyance, he can, irrespective of the condition of things between his pur- chaser and himself, recover damages measured by the considera- tion-money, it would follow that the possession of a covenant for seisin 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 back the con- sideration he had himself paid ; and this, in case he had sold without covenants, without any liability over on his part.^ And if, ' The provisions of the statutes of Maine, cited supra, p. 328, of course except that State from these remarks. ' Thus, in Davis v. Lyman, 6 Conn. 249, the defendant, who had sold land with a covenant against incumbrances, upon being sued by his covenantee, who averred as a breach the existence of an outstanding mortgage, pleaded that the plain- tiff had conveyed the land to a third party who had, before the suit was brought, released the defendant from all liability on his covenant ; but the court held that the covenant being broken as soon as made did not pass with the land to the purchaser, and that he, therefore, had no right to release it, and, moreover, that the covenantor's right to recover damages could not be affected by his having parted with the land. It would seem, however, that as the plaintiff had in this case paid nothing towards the extinguishment of the mortgage, his damages should, according to the weight of authority {supra, -p. 288), have been but nominal. In Massachusetts, however, in Cornell v. Jackson, 3 Cush. 609, where one who had received a covenant for seisin brought suit upon it after he had 356 EXTENT TO WHICH COVENANTS on the other hand, his technical right of action be allowed to yield him no more than nominal damages, it would seem that for all practical purposes the covenant for seisin is as useless to one who has parted with the land to which it related as a covenant of war- ranty,! g^u(j j^g i\^Q assignee of the laud is, by the operation of the parted with the land to which it related, " the defeulant's counsel main- tained," said Wilde, J., who delivered the opinion, "that the plaintiff is entitled to nominal 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 authority. In Medbury v. Watson, 6 Met. 246, it was proved that one of the plaintiffs had sold out his share of the property in dispute for the same amount which he gave ; and it was objected that he, having sustained no loss, could not maintain the action for the defendant's fraudulent misrepresentations, by which the plaintiffs were induced to purchase of him the property in question, at a price much exceeding its value. But it was decided that he was entitled to recover for the injury occasioned by such fraud, whatever disposition he afterwards made of the property, whether he sold it, or gave it away. So, in the present case, the plaintiff had a right of ac^tion on the breach of the covenant of seisin, immediately after the. delivery of the deed ; and his release or sale of the property, years after, could not affect the amount of damages he was before entitled to recover. The plaintiff has a most just right to recover of the defendant for the purpose of giving the amount recovered to Jackson or not, at his pleasure." It would seem, however, that the grounds of this decision must rest rather upon their own intrinsic merit than upon any analogy to Medbury v. Watson. That was an action for fraudulent representations, and the court held that " what the party sold the property for, is not the rule by which to measure the damages ; otherwise it might make the question of fraud to depend upon the rise or fall of the property in the market upon fluctuations in the value, arising from causes in no way connected with the fraud complained of. As well might an underwriter contend that the insured has sustained no injury, because his goods, though par- tially damaged by a peril insured against, have sold, even in their damaged state, for more than their actual cost." In Keith u. Day, 15 Vt. 668, moreover, a pur- chaser took from his vendor a covenant against a previous incumbrance, being a rent payable to the University of Vermont. He then resold part of the land with a covenant against all claims, "except a yearly rent to the University," and it was held that he could not recover from his vendor damages measured by the whole value of the incumbrance, as he was under no liability to his own vendee by reason of it, having excepted it from the operation of his covenants. ' Such was the decision in Wyman v. Ballard, 12 Mass. 304:, where land which was subject to a mortgage was sold with covenants against incumbrances and of warranty. The purchaser having resold the property to one who was evicted, sued on the covenant against incumbrances. It was held that the covenant being FOB TITLE EUN WITH LAND, ETC. 357 technical nile 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 per- sonal representatives. Such a dilemma seems, however, necessarily to result as a consequence of separating the nominal from the sub- stantial breach of the covenant for seisin. 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 assignments were from an early day recognized and enforced by courts of equity, who adopted in this particular the rule of the civil law,^ and, in modern times, the common-law courts have, to a great extent, acted upon the same principle,^ and though they still hold it necessary that the original party shall appear upon the record as the plaintiff, yet they permit his name to be used by the party actually damnified, and protect the latter from any fraud upon his rights committed by the former,^ and hence (as in the cases just referred to),^ a release from the party originally entitled to the benefit of a contract, to the party originally bound by it, made after notice to the latter of its assignment to a third person, .is not, at the present day, either in a court of law or equity, suffered to defeat tlie rights of the assignee in an action brought by liim against the original debtor.^ And as the obstacle which prevents an assignee from suing on 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 covenant of warranty to the evicted purchaser. ' See Story's Eq. Juris. § 1047, &c. ; 2 Spence's id. 850, &c. ; note to Row V. Dawson, 3 Leading Cases in Equity. ^ Master v. Miller, 4 Term, 340 ; Welch v. Mandeville, 1 Wheat. (U. S.) 235, and note ; s. c. 5 id. 277 ; Wheeler v. Wheeler, 9 Cow. (S. Y.) 34. 2 Legh V. Legh, 1 Bos. & Pull. 447 ; Mannings Cox, 7 Moore, 617 ; Kiddell V. Eiddell, 7 Sim. 529; Crooker v. Jewell, 29 Me. 630; Blin v. Pierce, 20 Vt. 25; Johnson u. Irby, 8 Humph. (Tenn.) 654; Dickinson v. Hoomes, 8 Gratt. (Va.) 407 ; Key. St. of Maine, supra, p. 328 ; note to Row v. Dawson, supra. * Supra, p. 351. * Cowan V. Shields, 1 Overton (Tenn.), 314 ; Dunn v. Snell, 15 Mass. 486 ; Eastman v. Wright, 6 Pick. (Mass.) 316 ; Andrews v. Beecker, 1 Johns. Cas. 411 ; Raymond v. Squire, 11 Johns. 47 ; Suydam «. Jones, 10 Wend. (N. Y.) 180 ; Phillips v. Clagett, 11 Mees. & Welsh. 84 ; Thornton v. Court, supra, p. 346. 358 EXTENT TO WHICH COVENANTS these covenants is merely technical, it may be presumed that if the American courts deem themselves restrained by authority from getting over it and adopting the English rule, they will at least be prepared to sustain a suit in the name of the original covenantee, for the benefit of those claiming under him by purchase.^ This must be the case if an assignee of the land be held to be an equi- table assignee of the covenant, and as such must certainly be his position when the covenant is expressly assigned at the time of the conveyance, it would seem that the mere conveyance of the land may be thought to imply a transfer of the covenant, on the general rule that the assignment of the principal draws with it tlie acces- sory .^ So far, therefore, as the covenants for seisin and for right to convey are concerned, these principles may perhaps serve to obviate the inconveniences occasioned by the American rule that these covenants are incapable of being taken advantage of by an assignee. The naqje of the original covenantee might appear as plaintiff on the record, and the injury to the party actually damni- fied be regarded as forming the measure of damages.^ ' As was done in the cases of Collier v. Gamble, 10 Mo. 467 ; Lawless v. Col- lier, 19 id. 480, supra, p. 294 ; Alexander v. Schreiber, 13 id. 271 ; supra, p. 351 ; and see the remarks to this effect in Clark v. Swift, 3 Met. (Mass.) .395. ' Roberts v. Levy, 3 Abbott's Pract. R. (N. S.) 316, citing the text; Wright V. Sperry, 21 Wis. 335. ' The exercise of equitable jurisdiction in sustaining the rights of an assignee, when a technical difficulty stood in his way, was well exemplified in Thornton V. Court, cited supra, p. 346. In Riddell v. Riddell, 7 Sim. 129, a tes- tator covenanted, before his death, for valuable consideration, to surrender cer- tain copyhold land to the lord of the manor for the use of the purchaser, and covenanted with the latter that he should quietly enjoy, and that free from all incumbrance. (The student will, of course, remember that this was the usual form of alienation of copyhold lands.) The next day the surrender was made, and some months afterwards the purchaser resold, covenanting to surrender in similar manner. Dower having been claimed by the widow of the first vendor, it was referred to a master to inquire whether the testator had executed any in- demnity against the claim of dower, and if so whether the indemnities were an existing charge capable of being enforced by any and what persons against the testator's estate ; and it was objected that the covenants for title of the latter 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 allow his name to be used in an action to be brought by a purchaser from him. See also Murray v. Jayne, 8 Barb. S. C. (N. Y.) 612, cited supra, p. 188. FOR TITLE BUN WITH LAND, ETC. 359 But as respects the covenant against incumbrances, a difficulty might be presented as to the pleadings. In declaring upon a breach of the two former covenants, it is sufficient to negative their words generally ,i but upon the latter it is necessary to set forth the particular manner in which the incumbrance has been the occasion of damage to the purchaser, 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 use the action is brought, it is conceived that it might be difficult to frame the declaration so as to come within the rule referred to.^ As the right to sue in the name of the original covenantor is, moreover, a mere equity, the consequences of a release of a cove- nant for seisin by the original covenantee while still the owner of the land, would seem to be more serious in their effect upon a subsequent purchaser from the latter than in the case of a cove- nant of warranty, whose benefit passes, if at all, as a strictly' legal right and not as a mere equity. For the former covenant, being broken as soon as made, is at once a chose in action, and as such, even if transmissible at all to an assignee, must be taken by him subject to all the equities between the original parties ; and it would, therefore, seem to follow that a release of a covenant for seisin made by the covenantee bona fide and for a valuable consid- eration and before the covenantor has notice of the conveyance of the land, will protect the latter against all claiming under the covenantee, whether with or without notice of such release.^ It is suggested, however, that upon general principles such would not ' See supra, p. 82. ^ Thus in Thornton v. Court, cited supra, p. 346, the plaintiff's counsel, in arguing that his client had no remedy at law under the circumstances of the case, urged that " in an action at law in the name of the mortgagee, the remedy would be inadequate ; for in such action the mortgagee (the nominal plaintiff) could not allege in his declaration, and therefore could not prove that he had sustained any costs in defending the action of ejectment, to which he was no party. But the plaintiff in this suit is entitled to such costs, and would have recovered them at law if he could have sued in his own name." ' Hence it was held in Proctor v. Thrall, 22 Vt. 262, that where a cove- nantee, by reason of having received a release from the holder of the paramount incumbrance, was thereby disabled from suing on the covenant against incum- brances, his assignee could have no greater rights, and hence that equity would not enforce an agreement by which, in consideration of such release, the releasor should succeed to the rights of the covenantee. 360 EXTENT TO WHICH COVEN ANTS be the case unless the release were for a valuable consideration,^ nor if the covenantee had notice of the conveyance of the land.^ Another consequence of holding the covenant for seisin to be broken as soon as made would seem to be that after the lapse of twenty years from the execution of the deed, the common-law pre- sumption that the covenant had been satisfied or released would arise,3 even if the covenant did not come witliin the letter of any local statutory enactment,* while with respect to such covenants as run with the land, the limitation would not begin to run until there had been an actual breach.^ There is not room for the same conflict of authority as respects the right to take advantage of the covenant for further assurance, ' Row V. Dawson, 3 Leading Cases in Equity, 376. ^ These remarks would, of course, apply to any covenant released after breach ; and the language of tbe court in Cunningham v. Knight, 1 Barb. S. C. (N. y.) 405, would seem to agree with tbe position taken in the text. The defendant, in an action on a covenant of warranty given by him, offered as a witness a prior vendor who had also conveyed the land with a similar covenant, and to render him competent executed to him a release of the covenant, and the court in holding the witness competent said, "At the time of giving the release the defendant had a contingent right of action against the witness. If he should be evicted by the result of this suit, that right would become absolute, and would be forever discharged 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 covenant to subsequent oioners, but that very liability would rather tend to interest him against the defendant, inasmuch as a recovery against the defendant, after the giving of the release, could not affect the witness injuriously, but would for- ever 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 conveyance of the land by his releasor. So, in Alex- ander V. Schreiber, 13 Mo. 271, cited supra, p. 351, 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 inoperative that it was not even mentioned in the opinion of the court. , ^ Stewart v. West, 2 Harris (Pa.), 338, 339 ; Heath D.Whidden, 24 Me. 383; Jenkins v. Hopkins, 9 Pick. (Mass.) 544. ' Clark V. Swift, 3 Met. (Mass.) 390 ; Rev. St. of Mass. c. 120, § 7 ; Web- ber u. Webber, 6 Greenl. (Me.) 138; Pierce v. Johnson, 4 Vt. 255; Bird V. Smith, 3 Eng. (Ark.) 368; 11 Amer. Law Reg. 372; Dart on Vendors (4th ed.),715. * Stewart v. West, Heath v. Whidden, supra; 9 Jarman's Conveyancing, 402. FOB TITLE RUN WITH LAND, ETC. 361 as exists between the English and American cases with regard to the covenant for seisin, as although it is sometimes said that the former covenant is broken by a demand and refusal to execute the deed of further assurance, yet it seems more proper to say that such a demand and refusal are necessary to the support of the action, but that the breach is a continuing one, even after that time, until the determinate damage has been suffered. In King v. Jones,^ the court held that if the ultimate damage had been sus- tained by the ancestor, that is, if he had lost the estate for want of the further assurance, he alone, or his executor after his death, would have the right to sue, but that " the ultimate damage not having been sustained in the time of the ancestor, the action re- mained 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 seems to be no American case which has denied to an assignee of the laud the benefit of a covenant for further assurance even although the refusal may have been made before the assignment. But as the remedy under the covenant is usually sought in a court of equity, it is probable that no difficulty would arise upon this point. The covenant of non-claim has already been noticed in a previous chapter.^ It was there seen that no distinction has, as a general rule, been taken between that covenant and a covenant of warranty. In a somewhat recent case in Maine,^ 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 appar- ently opposed to legal principle, that it was deemed necessary to deny to an assignee the benefit of the covenant of non-claim, and previous decisions,* opposed to such a conclusion, were therefore overruled, and tlie law as thus held has been recognized by the later authorities in that State.^ ' 5 Taunt. 418, supra, p. 324. ' Supra, p. 29. ' Pike V. Galvin, 29 Me. 187 ; the dissenting opinion of Wells, J., is reported in 30 Me. 639. •• Fairbanks v. Williamson, 7 Greenl. 99 ; White v. Erskine, 1 Fairf. 306. ^ Partridge v. Patten, 33 Me. 483 ; Loomis v. Pingree, 43 id. 314 ; Harriman V. Gray, 49 id. 538. See these cases more particularly considered in the next chapter. 362 EXTENT TO WHICH COVENANTS It has been already said that covenants which run with the land do not pass by direct operation of assignment, but as annexed and incident to the land to which they relate, and the argument constantly used in the cases cited in a former part of this chapter^ to prove the incapacity of the covenant for seisin for running with the land, has been that if no land passes to the assignee, the covenant, which only passes as an incident to the land, must alike fail of assignment. Whatever force this argument may have as applied to the covenant for seisin, it has equal force as applied to the covenants for quiet enjoyment and of warranty, and would logically lead to the alarming consequence that when a purchaser, by reason of the total loss of the land, most needed the help of his covenants for title, he would be utterly deprived of their aid. The leading authority for such a curious result is the early case of Noke V. Awder,^ in which John King had made a lease for years to Awder, the defendant, who conveyed it to one Abel, and cove- nanted that he and his assigns should peaceably enjoy it without interruption. Prom Abel, the lease came by assignment to the plaintiff, who, being ousted by one Robert King, brought an action upon the covenant. The case was on the point of being adjudged for the plaintiff, when Coke, who was counsel for the defendant, raised this dilemma : in order to entitle the plaintiff to recover, he must show that he was ousted by a lawful and paramount title, it being well settled that the covenant is not broken by a mere tor- tious entry of a stranger ; ^ and if he show the eviction to be under paramount title, then nothing passed from the covenantor but a lease by estoppel, and as no estate passed, the subsequent as- signee, who took nothing, of course lost the benefit of the covenant, whicli could only pass as an incident of the estate ; this argument was successful, and the judgment for the plaintiff was arrested.* ' /Supra, p. 818. ' Cro. Eliz. 417. ^ Supra, p. 133. ■* As this case has been the subject of so much comment, it is here given. It was first moved (Cro. Eliz. 373) in Trinity Term, 1594. " Covenant, wherein he shews that one John King made a lease for years to A., the defendant, who by Deed granted it to Abel, and covenanted with him, that he and his Assignes should peaceably injoy it without interruption. Abel grants it to J. S., who grants the Term to the Plaintiff, who, being ousted by a stranger, brings this Action, and after issue joyned upon a collateral matter and Verdict for the Plaintiff, it was alleged in Arrest of Judgment, that this action lay not for the second Assignee, unless he could shew the Deed of the first Covenant, and of the FOB TITLE RUN WITH L4ND, ETC. 363 Although within a century and a half after this decision had been pronounced, it was denied that it went to the extent of decid- assignment ; and of every mean assignment, for without Deed none can be assignee to take advantage of any Covenant, wbich cannot commence without Deed. And to that purpose cited old act 102, and 19 Ed. 2, Covenant 25. And if one be infeoffed with warranty to him his Heirs and Assignes, and the Feoffee makes a Feoffment over without Deed, the Assignee shall not take advantage of this War- ranty because he hath not any Deed of Assignment. But if he had the Deed, it should be otherwise ; and to that purpose, vide 13 Ed. 3, vouch. 17 ; 3 Ed. 3, monstransde fayts 37, 11 E. 4, ibid. 164; 15 Ed. 2, ibid. 44, 18 H. 7, 13, and 14, 22 Ass. plea. 88. But Popham held that he shall have advantage without the Deed of assignment ; for there is a difference where a Covenant is annexed to a thing which of its nature cannot pass at the first without Deed, and where not. For in the first case the Assignee ought to be in by Deed, otherwise he shall not have advantage of the Covenant ; and therefore he deneyed the case of the Feoffee with warranty. For the second Feoffee shall have benefit of the Warranty, although he doth not shew the Deed of assignment, but shews the Deed of the Warranty ; and so is the better opinion of the books. And to that opinion the other Justices inclined. Sed adjournatur." Again it came up (Cro. Eliz. p. 486) at Hilary Term of the next year. " It was now moved again, and all the Justices agreed. That the Assignee shall have an Action of Covenant without shewing any Deed of the Assign- ment ; for it is a Covenant which runs with the Estate, and the Estate being passed without Deed, the Assignee shall have the benefit of the Covenant also : And the Executor of the Baron, who is Assignee in Law, who comes in without Deed, shall have the benefit of such a Covenant, as appears 30 Ed. 3, in Symkins Simonds Case. And Popham and Fenner held. That a Feoffee shall vouch by a Warranty made to his Feoffor, without shewing any Deed of Assignment : For the Deed of Assignment is not requisite, nor is it to any purpose to shew it ; for it appears by the Books, that being shewn, it is not traversable by the Vouchee, And as a Warranty or Covenant is not grantable, nor to be assigned over without the Estate ; So when the Estate passeth, although it be by Parol, the Warranty and Covenant ensue it, and the Assignee of the Estate shall have the benefit thereof. Coke, Attorney General (who was of Counsel with the Defendant) said. That the Law was clear as you have taken it, yet the Declaration is ill ; for he declares. Quod cum Johannes King 10 Eliz. let that to the Defendant for years, Virtute cujus, he was pos- sessed and granted it to Abel by Indenture with the Covenant, who in 15 Eliz. assigned it to the Plaintiff. And further alledgeth. That long time before that the said J. K. had any thing, one Robert King was seised in Fee, viz. 7 Eliz. and so seised, died seised in 15 Eliz., and it descended to Thomas King, who entred upon the Plaintiff and ousted him : So he doth not shew that John King, who made the Lease, had any thing ; for Robert King was thereof then seised : And then when John King let to the Defendant, and he granted his Term by Indenture, nothing passed but by Estoppel ; then the Lessee by Estoppel cannot assign any thing over, and then the Plaintiff is not an Assignee to maintain this Action. But admitting that J. K. had at the time of the Lease made by him a Lease for a greater number of years, and that R. K. had the Freehold, and thereof died seised, and so all might be true which is pleaded ; then the Entry of Thomas King 364 EXTENT TO WHICH COVENANTS ing that covenant never lay by the assignee upon the assignment of an estate by estoppel,^ yet in more modern cases the doctrine has been recognized and applied.^ Nor was it possible to meet the difficulty by the suggestion that upon the Defendant is not lawful. So Quacunque via data, this Action cannot be maintained ; and this point for the Case of Estoppel, was adjudged in this Court in the Case of Armiger vs. Purcas, in a Writ of Error, And all the Court held here, that it was clear upon the matter shewn, that the Action lay not ; for the Plaintiff ought to have shewn an Estate by descent in J. K. at the time of the Lease and Assignment made, or an Estate whereby he might make a Lease : And that this was afterwards determined ; and so confess ^and avoid the Estate in the Lessor ; other- wise this Action of Covenant lieth not; and it never lies upon the assignment of an Estate by Estoppel. Wherefore they were of opinion to have then given judg- ment against the Plaintiff; but afterward they would advise until the next term. Note, This was continued until Trin. 41 Eliz., and then being moved again, all the Justices resolved, that the Assignee of a Lease by Estoppel, shall not take advantage of any Covenant ; but that it shall not be intended aLease by Estoppel, but a lawful Lease : But no sufficient Title being shewn to avoid it, it is then as an Entry by a stranger without Title, which is not any breach. Wherefore it was adjudged for the Defendant." ' By Lord Raymond, in Palmer v. Ekins, 2 Raym. 1550, "In truth, the case in Croke was adjudged for the defendant because no breach appeared in the declaration.'' " Thus in Andrew v. Pearce, 4 Bos. & Pull. 162, a tenant in tail made a lease for ninety-nine years, with a covenant for quiet enjoyment. After his death, the lessee, being still in possession, assigned the lease to the plaintiff, who, being evicted by the party entitled to the estate after the death of the tenant in tail, brought his action on the covenant against the executor of the original lessor ; and the Court of Common Pleas held that the lease having become absolutely void by the death of the tenant in tail, its assignment by the lessee to the plaintiff had no operation whatever. "He could neither assign the lease," said Mans- field, C. J., " nor any interest under it, because the lease was gone. What right of any sort had the assignee ? If any thing, it could only be a right of action on the covenant, and that could not be assigned by law. As the person who made the assignment had no interest in the premises, the assignment itself could have no operation. Consequently, there is no ground upon which the present action can be maintained." See also Whitton v. Peacock, 2 Bing. N. C. 411 (and its explanation in Gouldsworth v. Knights, 11 Mees. & Welsh. 343) ; Green v. James, 6 Mees. & Welsh. 656 ; Pargeter v. Harris, 7 Queen's Bench, 708. The distinction between Andrew v. Pearce and the case of Williams v. Burrell, 1 Com. Bench, 402, is that in the former the decision was expressly put upon the ground that the lease had become absolutely void by the death of the lessor before the assignment to the plaintiff. In the latter, the estate of the assignee did not become void until after the assignment, and, consequently, there was a chattel interest which passed to the assignee and which was sufficient to support the covenant ; Lewis V. Campbell, 8 Taunton, 715. FOB TITLE RUN WITH LAND, ETC. 366 the covenantor is estopped from saying that no estate passed by his deed, for it will be remembered that the plaintiff must, in his declaration for a breach of the covenants for quiet enjoyment or of warranty, aver the eviction to have been caused by one lawfully claiming under paramount title, and he cannot, therefore, contra- dict his own averment, in order to avail himself of the defendant's estoppel.^ ' The remarks of Judge Hare upon the practical application of such a doctrine at the present day are eminently correct. "No inconvenience," says he, in the note to Spencer's case, 1 Sm. Lead. Cas. " could arise from it under the old com- mon law, except in the case of terms for years, where we have seen its effects in defeating a recovery in Noke v. Awder. But it did not apply to conveyances of freeholds ; for as they were conveyed by livery of seisin, an actual estate, although commencing 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 all warranties and covenants made by the original , feoffor. But in conveyances taking effect under the statute of Uses, as must all those which are intended to pass an estate of freehold, and are unaccompanied by livery, nothing passes to the vendee, save only the estate actually and legally possessed by the vendor. Of course, therefore, in the very case in which the title to an estate totally fails, and in which the purchaser who has taken it on the security of the covenants for title entered into by a previous vendor most requires the assistance of the principle which gives to an assignee the right to sue on the engagements for indemnity given to his assignor, he is left, under the operation of the doctrine of Noke v. Awder as applied to our modern system of convey- ancing, wholly without remedy." And such, indeed, was the decision in North Carolina in Nesbit v. Montgomery, 1 Taylor, 86, where Cranston had, in consideration of £10 paid by Hugh Montgomery, father of Mary Montgomery, then under age and the wife of Arthur Newman, conveyed a lot of ground to the said Mary. Some years after, Hugh Montgomery and wife, in consideration of £60 paid to them for the use of the daughter, conveyed the premises by deed of bargain and sale to McConnell, covenanting for quiet enjoyment without hin- drance 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 purchase-money with interest. There was also a cove- nant for further assurance to be executed by the said Mary when she should arrive at age. McConnell afterwards conveyed one-half of the land to Nesbit, who, being evicted by Anthony and Mary Newman, sued the executors of Hugh Montgomery. A verdict having been found 'for the plaintiff, a motion was made in arrest of judgment, on the ground that the covenants in the deed from Hugh Montgomery to McConnell were covenants in gross and therefore not assignable. And Taylor, J. , in delivering the opinion of the court arresting the judgment, said, "It may be laid down as a rule without any exception, that a covenant to run with the land and bind the assignee must respect the thing granted or demised. 366 EXTENT TO WHICH COVENANTS But inasmuch as all law " in reality tends to maintain right and justice, and the enforcement of the contracts which men enter and that tbe act 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 defendant's testator, who sold this lot, neither had nor pretended to have any title to it, that, on the contrary, Mary his daughter had the complete seisin 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 between the parties ? The maxim transit terra cum onere presupposes a transfer of the land, and when that actually takes place it forms the medium of a privity between the assignees. Unless, therefore, we make a presumption against the plain statements in the declaration, the title of the lot never ceased in the daughter Mary, from the time Cranston conveyed to her. Suppose the father and mother had entered into the covenants contained in the deed, by a separate instrument, unaccompanied with any conveyance of the land, no one would pretend that an assignee should take the benefit of such a contract. Then, can the case be materially altered by annexing these covenants to a deed of bargain and sale, which being a conveyance under the statute of Uses, transfers only what the bargainor might rightfully convey ? For the declara- tion shows that rightfully he could convey nothing. If one man covenants that * another shall quietly enjoy, or obtain a conveyance for an estate which is owned by a third, this binds the covenantor and his executors and administrators to the covenantee, but cannot extend to the assignee of the latter. Nor can I conceive that the law is different when a man sells an estate and makes the same covenants, provided it appears upon the declaration that he had no right. In both cases the privity is wanting which forms the basis of reciprocal remedies to the parties." The plaintiff, however, subsequently filed a bill in equity, upon which the court referred the case to a master to take an account of assets and of damages, to be measured by the consideration-money, the clause in the deed as to this being regarded as a penalty merely; Nesbit v. Brown, 1 Dev. Eq. (N. C.) 30. In Allen v. Wooley, 1 Blackf. (Ind.) 149, one leased a fulling-mill for a year, covenanting for quiet enjoyment, and the lessee covenanting to pay the rent and to keep it in repair, and on the same day the lessee assigned the lease to the plaintiff, who brought suit against the lessee for not repairing, and it was held that if the lessor had assigned the reversion, the covenants would have passed with it to the assignee, but as he only assigned the lease itself, there was no land to which the covenants could be attached. And in Beardsley v. Knight, 4 Vt. 471, it was held that in order to give to an assignee the right of suit on the covenants in the deed to his assignor, the conveyance by the latter must be suf- ficient to pass the legal title, and that the covenants would not pass, if the deed, by reason of containing a scroll instead of a seal, was insufiicient for that purpose. Notwithstanding some expressions in Randolph v. Kinney, 3 Rand. (Va.) 396, the case itself must not be deemed to be an authority against the exercise of equitable jurisdiction under such circumstances. The bill was filed by a ccme- nantor against his covenantee and the heirs of a prior covenantor, as a bill of peace and quia timet, and was dismissed by the court because no grounds had been laid, for relief under either head. The fact, also, of there having been an FOB TITLE RUN WITH LAND, ETC. 367 into with each other," ^ it is not surprising to find that in Amer- ica a large class of cases has turned, aside from the logical conse- quence of that decision, while more recently in England the decision itself has been subjected to criticism resulting in its being practically overruled. In the case in New York of Beddoe v. Wadsworth,^ decided in 1839, it was, after much consideration, determined that if the grantor were in full possession of the premises under claim of title and by his deed transferred that possession to his grantee, the latter took, a sufficient estate to carry with it the benefit of those covenants for title which run with the land. No case in that State, it was said, had been produced " which denies that these covenants pass where the possession merely goes from one to another by deed and there is afterwards a total failure of title ; but there are several to the contrary. ^ Nor when we take the word estate in its most comprehensive meaning, can it be said there is "adverse possession" seems to have been, to some extent, relied on by the court, who observed, " A disseisor may convey and warrant the land, for there may be a fee-simple in a disseisin. But a person against whom there is an adver- sary possession cannot make a warranty which will pass to an assignee, because he cannot convey." In Dickinson v. Hoomes, 8 Gratt. (Va.) 353-44:1, 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 should pass to an assignee-. The case was one of a devise to six children, and should any die without issue living at his death, his estate should be divided equally among the survivors. One of these devisees conveyed to a purchaser, the others joining in a covenant in the deed to warrant and defend the land against themselves, as contingent devisees under their father's will, and all claiming under them. The purchaser' resold the land to one against whom the children of one of these devisees recovered an undivided share under proceedino-s in partition (1 Gratt. 302), and it was held that the covenant of their father ■would pass to the second purchaser, so as to entitle him to an injunction restrain- ing them from proceeding with their partition ; see also the case of Martin v. Gordon, 24 Ga. 536, noticed infra. ' Per Martin B., in Cuthbertson v. Irving, 4 Hurl. & Norm. (Exch.) 758, see infra. 2 21 Wend. (N. Y.) 120. ' Those cited by the learned judge were Withy v. Mumford, 5 Cowen (N. Y.), 137 ; Garlock v. Gloss, id. 143 ; Markland v. Crump, 1 Dev. & Batt. (S. C.) 94; Booth v. Starr, 1 Conn. 244, 248. These cases, however, do not decide this, unless incidentally. Their point is that an intermediate vendor can- not, in respect of his liability upon the covenant which he himself has given, recover of a prior vendor, without first making good the damages of the party evicted. See supra. 368 EXTENT TO WHICH COVENANTS none, in such a case, to which the covenant may attach. It is said by Blackstone to signify the condition or circumstance in which the owner stands with respect to his property ; ^ and a mere naked possession is an imperfect degree of title, which may ripen into a fee by neglect of the real owner. It is, in short, an incho- ate ownership or estate, with which the covenants run, to secure it against a title paramount ; and, in that sense, is assignable within the restriction insisted upon. It is said in several cases, that the covenants of warranty and quiet enjoyment refer emphatically to the possession, and not to the title.^ The meaning is that however defective the title may be, these covenants are not broken till the possession is disturbed. When the latter event transpires, an action lies to recover damages for the failure, both of possession and title, according to the extent of such failure." In Massachusetts, the case of Slater v. Rawson ^ was decided . nearly at the same time as Beddoe v. Wadsworth. A. conveyance had been made with covenants of good right to convey and of warranty, to one under whom the plaintiffs claimed as assignees, through several mesne conveyances. They yielded to an ouster under title paramount, which they clearly showed, but failed in an action against the original covenantor to prove any actual occupancy or seisin of the land by him at the time of his entering into the covenants. On this ground the verdict for the plaintiffs was set aside and a new trial ordered. " To support an action by an assignee on the covenant of warranty," said the court, " it is necessary that the warrantor should have been seised of the land ; for by a conveyance without such seisin the grantee acquires no estate and has no power to transfer to a subsequent purchaser the covenants in his deed, because, as no estate passes, there is no land to which the covenants can attach. If, therefore, the defend- ant, at the time of the making of his deed, was not seised, then the covenant of warranty did not pass to the plaintiffs as assignees, and the only liability of the defendant is upon his covenant of seisin, which covenant, for the reasons already stated,* is wholly unavailable to the plaintiffs." On a subsequent trial, however,^ • 2 Blacks. Com. 103. ^ Waldron v. McCarty, 3 Johns. (N. Y.) 471, per Spencer, J.; Kortz v. Carpenter, 5 id. 120. ^ 1 Met. (Mass.) 450. " That is, because the plaintiffs sued as assignees of the original covenantee. 1 » Slater v. Kawson, 6 Met. (Mass.) 439. ETC. 369 the plaintiffs gave evidence that both the covenantor and his father had exercised acts of ownership over the property, had claimed it as their own, been upon it, cut timber, &c. Although at nisi priua the court seemed to be of opinion that these acts, being mere acts of trespass upon uninclosed wild land, would not operate as a disseisin of the true owner, yet a verdict was taken for the plain- tiffs, and upon a motion for a new trial the Supreme Court held that whatever might be the distinction between disseisin and dis- possession, there was, according to modern authority, no legal difference between seisin and possession, nor was it necessary, it was said, to decide this question, " for if the defendant was in possession when he conveyed, claiming to hold the whole land conveyed, he had a good right to convey his title, whatever it was.' His estate passed by his deed to the grantees, and all his covenants were binding ; " and upon the familiar' doctrine that although an actual possession may not amount to a disseisin as against the lawful owner, yet it will be good as against a mere stranger, it was held that " the defendant had acquired, by possession and occupa- tion, a legal though not an indefeasible title to the land in question. He was lawfully seised and possessed of it against all the world, the lawful owner only excepted. His title, therefore, by his grant passed to his grantees, and from them and intermediate convey- ances to the plaintiffs, with the covenant of warranty annexed, and for the breacli of that covenant the plaintiffs are well entitled to damages," and judgment was therefore entered upon the verdict.^ ' See this doctrine, which is almost peculiar to some of the New England States, attempted to be explained, supra, p. .06 et seq. " The decision in New York of Fowler v. Poling, 2 Barb. S. C. (N. Y.) 306, professed to follow that of Beddoe v. Wadsworth, but virtually did not. The case was, however, overruled on appeal, 6 Barb. S. C. 166, and the cases cited in the text approved, as they were also in Dickinson v. Hoomes, 8 Gratt. (Va.) 399, and in Lewis v. Cook, 13 Ired. Law (N. C.) 194, the court, after referring to the facts (which have been already cited, supra, p. 348, in connection with another part of this subject), said, " The defendant's counsel laid down the position that a warranty, being a covenant annexed to an estate, could not continue longer than the estate, and consequently that when the estate of ±he plaintiff was put an end to by the heirs of Mrs. Jones at the death of Jones, the warranty was gone. We admit the position that the war- ranty is gone whenever the estate to which it is annexed determines ; for it is a mere incident of the estate, and the incident cannot continue longer than the principal ; as if there be an estate to A, for life, with warranty to him and his heirs and assigns, at the death of A, his estate determines, and the warranty is 24 370 EXTENT TO WHICH COVENANTS In very recent cases in Maine ^ and Missouri, moreover, this doc- trine has been approved and followed,^ and from the course of at an end. This case is put by Coke, and the principle is contained in all the books. The error of the defendant's counsel is in reference to the meaning and application of the principle. When does an estate determine? When it is ' spent,' — expires by ' the terms of its own limitations.^ If there is an eviction by title paramount, the estate is, in one sense, at an end, but has not determined, so as to deprive the party of the benefit of his warranty ; for if so, a warranty would never be of any force or effect. Until the eviction, the party has no use for it, and after that, it is gone. This proposition, certainly, cannot be main- tained. It is not 111— hat Howerton had only an estate for the life of Jones ; he was seised 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- simple. It was good until the death of Jones, and then it was only wrongful as to the heirs of Mrs. Jones. As to the rest of the world, it was a good fee- simple estate. Suppose Howerton had died seised ; could there be a question that his wife would have been entitled to dower ? Her estate, like that of her husband's, would be good against every one except the heirs of Mrs. Jones. Or, suppose Howerton had continued in possession for more than seven years after the death of Jones, can there be a question that he would not then have held a good estate in fee ? This is not consistent with his having an estate only for the life of Jones. The truth is (possibly his Honor fell into error by not adverting to it) , Jones purported to convey a fee to Harrison, and he purported to convey a fee to Howerton, and for the purpose of propping and fortifying this fee-simple estate he binds himself and his heirs in a covenant to Howerton, ' his heirs and assigns,' which is annexed to the estate and ' runs with it ' for its pro- tection against an eviction by title paramount." See also the dissenting opinion of Pearson, J., in Spruill v. Leary, 13 Ired. Law (N. C), 408 ; infra, p. 381. In Martin v. Gordon, 24 Ga. 636, Benning, J., after quoting in fuU the case of Noke V. Awder, said, " This case has been repeatedly followed by the English courts down to this day. It has not been followed by the courts of New York, or those of Massachusetts, or those of some of the other States of the United States, but those courts, if one may judge from the face of their decisions, seem rather to make the law yield to the case, than the case to the law ; Eawle on Covenants, 394 et seq. The power to do this is not given to any court of this State. The English cases, I think, speak the law of Georgia." The decision, however, sustained the right of the assignee to recover on the covenant of warranty, but approved the ad- mission of evidence to show that the real consideration paid to the original cove- nantor 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 purchasers were affected by the equities between previous parties." See, however, as to this, supra, p. 360. 1 Wilson V. Widenham, 61 Me. 666. ' Dickson v. Desire, 23 Mo. 161 ; Vancourt v. Moore, 26 id. 92. " Although the conventional warranty of the common law," said Leonard, J., in the first of these cases, " was considered so entirely an accessory obligation that it could ETC. 371 decision in Ohio heretofore noticed, it must, it would seem, be taken to be the law in that State.^ In a very recent case in the Circuit Court of the United States for the District of Oregon, the doctrine of this class of cases was considered to reach to the extent of deciding that whenever possession had been taken under the deed, there was a sufficient estate to carry the benefit of the cove- nants to an assignee.^ subsist only as an incident to some estate in the land, this produced no inconven- ience in the ancient system of cooTeyancing by feoffment and other similar assurances, which, operating upon the possession, created by their own force estates de facto (tortious estates as they were called) sufficient to support the warranty and carry it along with the land to all the subsequent successors. In the process of time, however, other modes of transfer were introduced under the statute of Uses, which operated upon the right only, and the personal cove- nants of title superseded in English conveyancing the ancient warranty of the common law, which, yielding a recovery in money instead of land, were for that reason deemed personal covenants. . . . The general doctrine of the old law as to the real warranty, that where no estate passes to which the warranty can be annexed the benefit of it does not pass to a subsequent assignee, admitting it to be applicable to the modern covenants for title, is obviated in eases like the pres- ent by the American decisions, that a conveyance by a grantor in possession under a claim of title passes an estate to the grantee sufficient to carry the cove- nants to any subsequent assignee." ' See supra, p. 329. == Fields V. Squires, 1 Deady (C. C. U. S.), 366, 389. " It is also objected," said Deady, J., " that the defendant is not liable on this covenant to the assignee of the covenantee, because it does not run with the land. The reason given for this position is that no estate passed to the assignee by the deed, the grantors not having any interest in the land at the time. This was the doctrine of the common law as to conveyances of estates less than freehold, which passed without livery of seisin; Noke v. Awder, Cro. Eliz. 417. And as under our modern system of conveyancing freeholds pass without livery of seisin, it was held at one time that the doctrine became applicable to conveyances of such estates, and in case the grantor had no interest in the land, the assignee of his grantee could not sue upon the covenants, because they only passed as an inci- dent of the estate. But this doctrine has been modified substantially, so that it may be said that whenever "possession is taken under the deed, there is suffi- cient estate to carry the covenants to the assignee ; Beddoe v. Wadsworth, 21 Wend. 123 ; Slater et al. v. Kawson, 6 Met. 439 ; Rawle on Covenants, 382 et seq. This doctrine is peculiarly adapted to the early circumstances of this country. For years before the passage of the Donation Act, the right of the settlers upon the land was a mere possession, with an expectation of future title from the United States. Under these circumstances, in all the towns, this posses- sion was conveyed and re-conveyed with covenants for the title expected, and it is proper and safe to hold with these authorities that a sufficient estate passed to carry the covenants to the subsequent occupants and assignees." 372 EXTENT TO WHICH COVENANTS The reasons which, from conrenience, may support these cases will readily appear when we consider that it could hardly be con- sidered as settled by that class of cases of which Noke v. Awder was at the head, what exact amount of interest was sufficient to carry with it covenants for title to an assignee ; ^ in other words, how small the estate might be which, passing to an assignee, would vest in him the benefit of these covenants,^ and there was reason for every liberal construction which could be reasonably adopted in order to avoid the consequences, at the present day, of the techni- cal doctrine of these cases. This doctrine, at the period when freeholds were conveyed by feoffment with livery, worked no evil, as has been said, except with respect to leases. But at the present day it is far different, and when, as is always the case now, a con- veyance passes no greater estate than the grantor himself had, it seems the height of hardship to deny to a subsequent 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 ; when no estate has passed from him, he is pro- tected on this very ground. When, therefore, a grantee has received, by virtue of his deed, a possession under color of title, which, if it endure for the length of time required by the limitation acts, will be valid as against all the world, and which possesses all the qualities of an estate as respects capability of passing by assignment, descent, or devise, it can scarcely be thought inconsistent with principle to hold that such a possession is sufficient to convey to subsequent assignees the benefit of the covenants for title of the original grantor. And such has been the decision in a very recent case in Illinois,^ where the defendants, having conveyed land of which they were not in possession, with a covenant of warranty against all patent titles, were held liable upon their covenant in an action brought by ' Thus, in Dickinson v. Hoomes, 8 Gratt. (Va.) 374 (cited supra, p. 367), it was argued, for the plaintiff, that the contingent interest of one of several cove- nantors, dependent upon another of them dying without issue, was a sufficient estate to carry the covenant to an assignee, and the court went even further, and seemed to be of opinion that it was not necessary that any estate should pass from the covenantor. * See note to Spencer's case, 1 Smith's Leading Cases. ^ Wead V. Larkin, 54 111. 489. The facts of this case will be found in Harding v. Larkin, 41 id. 413, and Wead v. Larkin, 49 id. 99. FOR TITLE RUN WITH LAND, ETC. 373 the evicted assignee of their grantee. It was contended on behalf of the defendants that as they were not in possession, the plain- tiff could not maintain the action, and the uthority of Slater v. Rawson ^ was strongly relied on, but the court, in declining to follow the doctrine of that case, said, " If the question of possession is at all important in reference to the passing of this covenant to an assignee, it is not the possession of the covenantor that is material, but that of the covenantee when he makes his possession. Then is the first time that the covenant passes as attached to the estate. When first made, it is made to the covenantee directly, and in per- son, and he takes its benefit by virtue of his contract, and not as incident to the estate. It can certainly never be held that if he takes possession and is evicted by paramount title he cannot re- cover, because the land was vacant when the deed was made to him. Even then, if we concede that he must take possession before he can pass the covenant to his grantee, as attached to the land, we are wholly unable to see why it does not pass if he has taken possession, or what the possession or non-possession of the covenantor, when the covenant was made, has to do with its passing to the grantee of the covenantee," and the court also inclined to the opinion that each grantor was estopped by his deed from denying that he had an estate to which the covenants would relate.- But it would seem to be no longer necessary to resort to expe- dients in order to escape from the logical results of the decision in Noke V. Awder. The later English authorities have subjected it to a severe examination, and it is now considered that the case decided, not that, when no estate passed, there was nothing with which the covenants for title could run, nor that covenant never lay by the assignee upon the assignment,^ but merely that as the plaintiff, hy his own showing, never had conveyed to him any estate in the premises, he could not sue upon the covenant as one run- ning with the land ; in other words, that the case depended entirely upon a question of pleading, viz., the insufficiency of the breach.^ - Supra, p. 368. ^ A question which, it is considered, did not arise, and was not necessary for the decision of the case. See Palmer v. Ekins, 2 Raymond, 1650. ' Cuthbertson v. Irving, 4 Hurl. & Norm. 755, 1 Smith's Leading Cases, * 136. In the notes by the English editor to the edition of 1866 it is said, " In Noke ». Awder the plaintiff (to follow the argument of Coke, Attor- ney-General, for the defendant) was in this dilemma, that either the lessor John King had, upon the plaintiff's showing, no estate, and then no term was 874 COVENANTS FOB TITLE RUN WITH LAND, ETC. It is certainly matter of regret that this result should not have been sooner worked out, and that that which was a mere professional triumph of Sir Edward Coke upon a question of pleading should have disturbed the courts of last resort iipon both sides of the Atlantic for more than a century. created by the lease, and so no estate passed by the assignment from the defend- ant to Abel, consequently there was no actual privity of estate between the defendant and the plaintiff, nor any estoppel, because the facts were stated on the record, and the estoppel not relied upon ; or, supposing that the declarations were read as alleging a valid lease from John King to the defendant, then, con- sistently with the declaration, Thomas King, who was alleged to have ousted the plaintiff, had no title, was a mere trespasser, and so there was no breach of the general covenant for quiet enjoyment. So that, quacunque via data, the action could not be maintained. And the court are reported to have held ' that it was clear upon the matter shown that the action lay not, for the plaintiff ought to have shown an estate by descent in John King at the time of the lease and the assignment made, or an estate whereby he might make^a lease, and that this was afterwards determined ; and so confess the estate in the lessor, otherwise this action of covenant lieth not, and it never lies upon the assignment of an estate by estoppel. Wherefore they were of opinion to have then given judg- ment against the plaintiff, but afterwards they would advise until the next term.' If the judgment of the court had finally proceeded upon this reasoning, it would only have been a decision that as the plaintiff, upon his own slioimng, never had conveyed to him any estate in the premises, he could not sue upon the covenant as one running with the land. , The estoppel was not pleaded, but the contrary ; and t\i& placitum in Comyns's Digest, Covenant (B. 3), 'So the assignee of a lease which appears to be good only by estoppel shall not have covenant, R. Cro. El. 437, Mo. 419, correctly limits the ohiter opinion of the court (which did not form the basis of their final decision) to cases where it appears that no estate passed to the covenantee. The ultimate decision in Noke v. Awder was founded upon the insuSiciency of the breach, assuming the lease to have been valid in interest and not merely by estoppel, for the report proceeds, ' Note : This was continued until Trin. 41 Eliz., and then being moved again, all the justices resolved that the assignee of a lease by estoppel shall not take advantage of any covenant, hut that it shall not he intended a lease by estoppel, hut a lawful lease. But no sufficient title being shown to avoid it, it is then as an entry by a stranger without title, which is not any breach. Wherefore it was adjudged for the de- fendant.' Noke V. Awder cannot, therefore, be considered as establishing the general proposition, that the benefit of covenants in a lease which operates by estoppel does not run with the reversion ; or that it is competent for the lessee or his assignee to raise the point against the assignee of the lessor." THK OPERATION OP COVENANTS FOR TITLE, ETC. 375 CHAPTER XI. THE OPERATION OF COVENANTS FOR TITLE BT WAT OF ESTOPPEL OR REBUTTER.! The operation of the feudal warranty by way of rebutter was far more efficacious, in every-day use, than by the remedy it afforded by means of voucher or a warrantia chartce, and upon the effect of this rebutter in its descent upon heirs, the doctrines of lineal and collateral warranty depended. In a former chapter,^ an attempt has been made to sketch the origin of collateral warranty, and to refer to the successive restrictions which parliament imposed upon it, " until its effect and operation were reduced to so narrow a compass as to become, in most respects, a matter of speculation rather tlian of use." ^ The obligation of the heir to render to the evicted vassal or donee of his ancestor an estate equal in value to that which the latter had lost, depended upon the condition that he had other sufficient lands by descent from the warranting ancestor.* " But, though without assets, he was not bound to insure the title of another, yet in case of lineal warranty, whether assets descended or not, the heir was perpetually barred from claiming the land him- self ; for, if he could succeed in such claim, he would then gain assets by descent (if he had not them before), and must fulfil the warranty of his ancestor ; and the same rule was, with less justice, adopted also in respect of collateral warranty, which likewise (though no assets descended) barred the heir of the warrantor from claiming the land by any collateral title, upon the presumption ' On the subject of estoppel generally the student may profitably refer to Judge Hare's note to Duchess of Kingston's case, 2 Smith's Lead. Cas., as also to the recent able treatise, Bigelow on Estoppel, c. 12. * See supra, Ch. I. ' Butler's note to Co. Litt. p. 365 a; see also his note to p. 373. * Co. Litt. 374 6. 376 THE OPERATION OP COVENANTS FOR TITLE of law that he might thereafter have assets by descent either from or through the same ancestor." ^ To prevent the injustice, however, which would flow from the warranty of a tenant by the courtesy barring the children of the marriage after their father's death, the statute of Gloucester ^ provided that " if a man alien a tenement that he holdeth by the law of England, his son shall not be barred by the deed of his father (from whom no heritage to him descended) to demand and recover, by writ of mort d' ancestor, of the seisin of his mother, although the deed of his father doth mention that he and his heirs be bound to warrant." ^ ' 2 Blacks. Com. 302, and see supra, p. 4 et stq. = 6 Edw. I. u. 3. 8 In Todd u. Todd, 18 B. Mon, (Ky.) 144 {supra, p. 4), a husband, seised in right of his wife, joined with her in the conTeyance of her land by a deed which contained a covenant of warranty, but which, by reason of defective acknowledg- ment, was inoperative to pass her estate. After her death the husband married again, and died intestate ; there were children of the second marriage, and his estate descended equally to both sets of children. The children of the first marriage brought suit against the personal representative of their father for pay- ment, out of the whole of his estate, of the loss which his breach of warranty had caused to fall upon them alone. In answer to this it was urged that the covenant of warranty had not been broken, and consequently no charge upon the estate had been created ; that there was no example in any of the books for such an action, although occasion for it must frequently have arisen, especially between the heir and the executor. But the court said, "It is true that there has been no actual breach of the warranty, because it has been satisfied and a breach prevented by operation of law, by the application of the assets in the hands of the heirs in satisfaction of the covenant of their 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 immediately be obliged, by means of the covenant of warranty, to recompense the purchaser for the injury he had sustained by the eviction. Looking 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 substantial breach of the warranty, and as a satisfaction thereof made by the plaintiff's. And as they have discharged a liability which was by law a charge upon the whole estate, they have a right to have it thus applied, so that the loss will devolve equally upon all the heirs. With respect to the argument drawn from the 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 BY WAT OP ESTOPPEL OR REBUTTER. 377 The statute of 11 Hen. VII. c. 20, invalidated all warranties made by a tenant in dower, a tenant for life, or in tail jointly with 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 con- sequently no such question as the one here presented can arise in those States. The extent of the plaintiff's right, however, under their ancestor's covenant of warranty cannot exceed the amount of the liability which was imposed 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 liability. That value, with in- terest thereon from the death of their father, is all that the plaintiffs have a right to, as they were not entitled to the possession of the land until that time. Their right of action is founded alone upon the warranty of their ancestor ; it cannot be maintained upon any other ground, and consequently the right of recovery upon a breach of the warranty regulates and determines the extent of the relief to which they are entitled. It is not necessary to decide in this action what amount of assets is required by the statute to bar a recovery by the heir ; it may, however, be remarked that by the common law the value of the land at the time it was conveyed was the criterion of the damages to which the vendee was entitled for a breach of the warranty ; our law fixes the same criterion, and as the statute does not specify the value of the heritage that must descend to the demandant in order to create the bar, it would seem that it would have to be determined by reference to the law regulating the liability of the warrantor." The Revised Statutes of Kentucky (c. 80, § 4) provide that " in judgment of eviction suffered by a husband, or conveyance made by him of the inheritance or freehold of his wife, or other act done by him, shail operate as a discon- tinuance, or shall prejudice or impair her right of action, or the right of entry of her or her heirs, or such as have right after her death," and also (§ 18), that if the deed of such grantor warrant the estate purporting to be conveyed against him and his heirs, and any estate, real or personal, shall descend to the claimant, or come to him by devise or distribution, on the side of the grantor, then he shall be barred for the value of the estate that shall so descend or come to him by descent, devise, or distribution. In Lane v. Berry, 2 Duval (Ky.), 283, a tenant by the curtesy conveyed with general warranty, and the children of the marriage having brought ejectment, it was held that, having inherited other lands from their father, they were estopped by their covenant, and this was affirmed on appeal. " There is no conflict," said the court, " between these two legislative enactments. The first saves the right of the wife and her heirs from defeasance by the unauthorized conveyance of the fee-simple title by the husband, and secures to them the right of entry at his death. But the second, nevertheless, bars the right of entry by her heirs, if they have received from the vendor an equivalent estate. We can see no in- congruity between these provisions ; and each stands in full force and may con- sistently operate, within its defined sphere, with complete effect. So far as her heirs are concerned, the vendor's conveyance does not divest them of their title, 378 THE operation' op covenants for title her husband of lands derived from his ancestors, made either by herself while a widow, or with any after-taken husband — the 21st section of the statute of 4 Anne, c. 16, declared that all warranties made by any tenant for life, of any lands coming to any person in reversion or remainder, should be void, and that all collateral war- ranties of any lands by any ancestor who had no estate of inheri- tance in possession in the same should be void as against his heir ^ — and finally, by the act of 3 and 4 Will. IV. c. 37 and 74, lineal and collateral warranties have been entirely abolished. While it is true that in some of our States this doctrine of rebutter, which sprang from the common-law warranty, has been applied to the modern covenants for title, producing results often incongruous, and at times of greater or less hardship,^ yet in other unless they inherited some compensatory estate from him, when, to that extent, the title passes by estoppel." The seventeenth section of the same statute was not directly referred to in the opinion of the court. It provided that " a deed and warranty of land pur- porting to pass or assure a greater right or estate than the person can lawfully pass or assure, shall operate to convey or warrant so much of the right and estate as such person can lawfully convey, but shall not pass or bar the residue of the right or estate purporting to be conveyed or assured." The practical effect of the statute would, therefore, seem to be, — 1. Under the fourth section, a conveyance by a tenant by the curtesy without warranty, will not bar the heirs of the wife. 2. Under the seventeenth section, a conveyance with warranty of a larger estate than the grantor has, will not bar those in remainder or reversion without assets ; but, 3. Under the eighteenth section, if assets descend or come to the latter, they are barred to the extent of their value. In Chauvin w. Wagner, 18 Mo. 553, a husband and wife, seised in her right, conveyed the land with a covenant for further assurance, By reason of its defective acknowledgment the deed did not pass the wife's estate, and it was obviously held that the children were not estopped by their father's covenant, unless it were shown that they had assets by descent from him of equal value. ' Entitled ' ' For the amendment of the law, and the better administration of justice." ' In the old case in Massachusetts of Banister v. Henderson, Quinoy's Rep. 119 (A.D. 1765), it was argued that an estate tail, with cross-remainder in tail, could be barred by collateral warranty, but the p6int was afterwards abandoned, though the editor of the reports seems to think that it was well taken. In Pennsylvania, although the report of the judges in 1808 (3 Binn. 625) declared that the first thirteen sections and the twentieth and twenty-seventh of the statute of Anne were in force in that State, yet the twenty-first was not so considered, and in the year 1799, where, in Eshelman v. Hoke, 2 Yeates (Pa.) , 509, a tenant by the curtesy, in fulfilment of articles entered into in the lifetime of his wife, conveyed BY WAT OP ESTOPPEL OR REBUTTER. 379 States the English statutes have been declared to be in force,^ his interest to his elder 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 Pennsylvania. (The reason why this case did not come within the statute of Gloucester was because real assets had descended to the heirs from the father.) In the subsequent case of Jourdan v. Jourdan, 9 Serg. & Rawle, 268, it was also held that a collateral warranty barred the heirs of the war- rantor ; but, apparently to escape from the hardship of the decision, it was also de- termined that such warranty descended only upon the eldest son, as heir at common law, and hence did not rebut his brothers and sisters. In a note, however, to the case of Paxson v. Lefferts, 3 Rawle (Pa.), 67 (of which the remainder has been quoted supra p. 214, n.), it was said : "In this country, where descents are parti- ble, great inconvenience and injustice would ensue from applying the rule that a warranty bound only the heir at common law, in the operation of a warranty by way of rebutter. The analogy between the custom of gavelkind and our system of descents affords an exception which we cannot but adopt. It is true' that the text of Littleton is express, that a warranty of lands held in gavelkind descends only to the heir at common law, and shall not bind ' the heirs that are heirs ac- cording to the custom ; ' Litt. § 736. The same rule applies to land held in borough English; Id. § 735. In the latter instance the case as put by Littleton appears extremely hard on the purchaser. The youngest son of the tenant in tail, who discontinued with warranty, was not barred, although land to an equal or greater amount in value had descended to him from his father. But the subtle motion of the descent of the warranty on the heir at common law alone, produc- tive of such injurious effects, was got rid of by an ingenious contrivance for the promotion of justice. Although the customary heir was not considered directly liable on the warranty, yet he was held so by reason of the inheritance ; see Coke on Litt. 376 a; and either by being directly vouched by the warrantee, or by being vouched by the heir at common law, in case the latter alone had been vouched (either of which courses was at the election of the warrantee), the customary heir could be rendered liable. See Robinson on Gavelkind, 127 ; 1 Leon. 112 ; Cro. Jae. 218 ; Co. Lit. 12 a, Mr. Hargrave's notes (1). The principle applies with double force in the case of a rebutter. It cannot be conceived that a gavelkind heir, or the young- est son in the case of borough English, who would thus be made responsible if the ' In Rhode Island, the 21st section of the statute of Anne was declared by Story, J., in Sisson v. Seabury,l Sum. CC. C. U. S.) 259, to have been included in the re- port made, in 1749, of the English statutes in force in that State ; and hence it was held that where one who in fact was tenant for life with remainder to his children, supposing himself to be tenant in tail, made a conveyance with warranty for the purpose of barring the entail according to a local statute, the remainder-men were not barred by the warranty contained in that deed, as it came directly within the provisions of the statute of Anne. 380 THE OPERATION OP COVENANTS FOB TITLE iu others they have been re-enacted either literally or in sub- warrantee were evicted by a stranger, should not be rebutted in case he claimed the land himself, when the warrantee could thus circuitously recover the same land from him afterwards. In the case of Jourdan v. Jourdan, 9 Serg. & Rawle, 268, the attention of the court was drawn only to the general rule, without its qualification. That decision is the chief source of the present note. It is believed that if the counsel for the plaintiff in error had pursued his researches a little further, and laid the authorities before the court, the result of the case would have been different." In Massachusetts, in Bates v. Norcross, 17 Pick. (Mass.) 14, the plaintiff in an action of ejectment deduced a perfect title to himself, in the premises in ques- tion, but the defendant proved that the plaintiff's wife was the sole heiress of one who, though without title, had purported to sell the same land by a deed which contained a covenant of warranty, and urged that as this warranty would descend upon the plaintiff's wife, who had received assets by descent out of which she would be obliged to make good the warranty of her father, it should rebut or pre- clude 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 con- cerned it was a collateral warranty without assets, and therefore, by virtue of the statute of Anne, he was not rebutted. But the court said : " We do not consider the doctrine of collateral warranty as applicable to the case. If Davison were living and demanding the land, he would be estopped by his deed. So if his sole heir was suing for it, she would be estopped, being privy both in blood and estate . The warranty of her ancestor has descended upon her, and (as the case finds) with assets of greater value than the land. This is a case of lineal warranty with assets, so far as the daughter, sole heir, and wife of the demandant is concerned. She at the time of her marriage was undoubtedly liable, and her liability devolved upon the husband and wife. If he was to be considered a purchaser for the valu- able consideration of marriage of all that came to the wife, it was cum onere. He and his wife became and were seised of the real estate in her right, and he took the personal estate absolutely, but subject to all the liability to respond to the warranty of the ancestor. If the demandant were to recover, the tenant would have an action to recover back the value, and the judgment and execution would be against the husband and the wife, and might be levied upon the body or estate of the husband. So that if the husband should recover in this action, he himself would be liable eventually to refund the value. ... It was contended for the demandant that circuity of action would not be prevented where there were a number of heirs of the warrantor ; that the rule of rebutter would not apply to estates held in gavelkind and borough English, but only to cases of descent ac- cording to the English common law, to one heir. We are not called upon to decide what the law would be if there were more heirs of the warrantor than one. According to 4 Dane's Abridgment, 493, § 7, it would seem that no one can claim an interest against his own warranty, or against one descended upon him and others, where the principle of rebutter or circuity of action prevails. But the case'at bar is clear of all dilfioulty on that point, for the report finds that the wife BY WAY OP ESTOPPEL OR EEBUTTER. 381 stance,^ in others the whole common-law doctrine of lineal and of the demandant is the sole heir of the warrantor ; " and the same decision has very recently been made in New Hampshire ; Russ v. Perry, 49 N. H. 547. In the more recent case in Massachusetts of Cole v. Raymond, 9 Gray, 217, Bates V. Norcross was approved, and the doctrine of rebutter applied to a case where it had been held that there was no liability on the covenant of the ancestor by reason of the remedy being barred by the statute of limitations ; "while," it was said, " the usual incidents to the conduct of a personal action will be applied, yet this will not affect the covenant real in its broader application." See this case referred to infra. ' The statute of Anne was re-enacted in New York in 1788, but the Revised Statutes have abolished both lineal and collateral warranties, and all their inci- dents ; 4 Kent's Com. 469. In the Delaware Revised Statutes of 1852 it is declared (tit. xii. § 28) that " a warranty made by a tenant for life shall not, by descending or coming to a person in remainder or reversion, bar or affect his title, and a collateral warranty shall not, in any case, bar or affect a title not derived from the person making the warranty." This was modified from the Rev. Stat, of 1847. In North Carolina, the statute of Anne was re-enacted by the Revised Statutes of 1836, c. 43, § 8 ; see Moore v. Parker, 12 Ired. Law, 129. In Flynn v. Williams, 1 id. 509, it was held that where one to whom an estate had been devised with an executory devise over in case of his death without issue, should sell the same with a covenant of general warranty, his heirs would be barred either with or without assets, and whether the warranty was lineal or collateral. In the subsequent case of Spruill v. Leary, 13 Ired. Law, 225, a testator devised his estate to his four sons and their heirs, and at the death of any of them without issue his share was to go to the survivors. The sons made partition, and afterwards one of them conveyed his share to a purchaser with a covenant of general warranty, and afterwards died without issue ; and it was held, upon the authority of Flynn v. Williams, that the collateral warranty which descended upon his brothers, who were his heirs, barred them. " It is an artificial and hard rule," said Ruffin, C. J., " the practical operation of which at this day is to enable one man to sell another's land without compensation, directly or indirectly, which is not agreeable to the reason and justice of modern law. But it is nevertheless the law, because it was undoubtedly so anciently, and the legislature has not seen fit to alter it. For it is not within the statute of Anne . . . because William Jones was not simply tenant for life, nor entitled to the bare right to the inheritance, but had the fee-simple in possession at the time he entered into the warranty. . . . He had an estate to him and his heirs in possession with an executory devise over in fee, and consequently his war- ranty is not 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 Ired. Law, 408), and showed that in Flynn v. Williams the estate had been devised to one brother subject to a condition in favor of another brother who died first without issue, leaving the first taker his heir, whereby the latter had both the estate and the condition to which it was subject ; and in the more recent case of Myers v. Craig, 1 Busb. 169, Spruill v. Leary was distinctly overruled, and it was held that the 382 THE OPERATION OP COVENANTS FOE TITLE collateral warranty is deemed inapplicable to our system of jiiris- prudeuce,^ while in others lineal and collateral warranty, with all their incidents, has been abolished by statute.^ The practical diiference between the lieir being merely liable to respond in damages for the breach of his ancestor's covenant, to the extent of the assets received by him, and being barred, by reason of that covenant, from claiming the land itself which had been improperly conveyed, is immense. In the case, for example, of a conveyance with covenants for title by a tenant by the curtesy, apart from the old doctrine of warranty, the law casts the estate of the mother upon the heir, who, retaining that estate, is also, as taker of the first fee, under a conditional limitation or executory devise, by which a fee is limited after a fee, could not by bargain and sale with warranty bar the taker of the second fee without assets descended. For a reference to the Virginia statutes on this subject the student may refer to Urquhart v. Clarke, 2 Randolph, 549 ; Norman v. Cunningham, 5 Gratt. 63 ; Acts of 1785 (1 Rev. Code, o. 99, §21) ; Code of 18i9, tit. 33, o. 116, § 7, by which it is enacted that " when the deed of the alienor mentions that he and his heirs will warrant what it purports to pass or assume, if any thing descends from him, his heirs shall be barred for the value of what is so descended, or liable for such value." ' " The statute of Anne," says Kent, " does not appear to have been generally or formally re-enacted in our American statute laws, because the law of lineal and collateral warranty never has been generally adopted in our American juris- prudence ; " 4: Com. 469. In the recent case of Pollock «. Speidel, 17 Ohio St. R. 439, the case was, in the absence of all statutory enactment, rested on the broad and satisfactory ground that the modern covenants for title are personal covenants merely, giving a remedy against the grantor by a recovery in damages, and hence that a tenant in tail could not by deed with covenant of warranty bar the entail, or deprive his issue of the right to the inheritance, whether assets did or did not come to them ^ from his estate. ^ See Revised Statutes of New York, supra. In Indiana it is enacted that "lineal and collateral warranties, with all their incidents, are abolished, but the heirs and devisees of every person who shall have made any covenant or agree- ment shall be answerable upon such covenant or agreement to the extent of property descended or devised to them, and in the manner prescribed by law ; Acts 1857, p. 82, § 10 ; 1 Gavin &Hord. Dig. 259. Hence where, in Hartman v. Lee, 30 Ind. 281, a tenant by the curtesy sold with covenant of warranty, it was held that the children of the mother, though they had received by descent from their father assets of greater value, were not barred from claiming the land, — that the remedy on the covenants must be prosecuted against the per- sonal representative, according to the statute as to decedents' estates. BY WAT OF ESTOPPEL OR REBUTTER. 383 heir of the father, bound, out of his estate, to pay damages to the covenantee. Yet, by the introduction of a doctrine, which, as long ago as the time of Edward the First, was found to work injustice even as applied to feudal tenures,^ and which is wholly inapplicable to the modern system of law, the heir .is practically forced to con- firm his father's unauthorized sale, is debarred from claiming the estate inherited from his mother, and must content himself by retaining the assets of his father's estate, — in other words, he is forced to sell his mother's estate for the price which his father chose to take for it, and to accept and retain the latter as a recom- pense for the loss of the former.^ Unless where the effect of warranty was restrained by statute, its benefit enured to him who had received it, both as a means of redress and as a defence against the warrantor and his heirs, and this was no doubt originally founded upon the desire to prevent the circuity of action which would arise if the warrantor or his heirs were allowed to regain possession of the land ; as they would immediately be obliged, by means of a warrantia chartce, to restore 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 different,^ and while the former was dependent upon the presence of a war- ranty, such was not the case with the latter, which had a wider scope, and might either be caused by matter of record, by matter of deed, or by matter in pais, and was, we are told, called an estoppel or conclusion, " because a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth." * ' See supra, p. 8 et seq. ' The practical results of engrafting the doctrine of warranty on the modern system are further referred to in a subsequent part of this chapter. ^ Though as regards the effect just referred to, there was a similarity between them, a rebutter being in this respect " a kind of estoppel ; " Co. Litt. 352 &. ■* Co. Litt. 3.52 a. " The reason why estoppels are allowed," says Mr. Butler, in his note to this passage, " seems to be these : No man ought to allege any thing but the truth for his defence, and what he has alleged once is to be presumed true, and therefore he ought not to contradict it Secondly, as the law cannot be known till the facts are ascertained, so neither can the truth of them be found out by evidence ; and therefore it is reasonable that some evi- dence should be allowed of so high and conclusive a nature as to admit of no contradictory proof." An illustration of this is shown in the late case of Temple ». Partridge, 42 Me. 66, infra. 384 THE OPERATION OP COVENANTS FOR TITLE This was the ordinary and personal effect of an estoppel by deed. But it had also a much higher operation, which was, in certain cases, actually to transfer and pass an estate ; so that if a man conveyed to another, land to which he had no title, any after- acquired title would enure to the latter by direct operation of law, and become vested in him in the same manner as if it had orig- inally passed to him by the conveyance. Now it must be carefully observed that, by the common-law, there were two, and but two classes of cases in which an estate thus actually passed by estoppel. The first was where the mode of assurance was a feoffment, a fine, or a common recovery. Such was their solemnity and high character, that they always passed an actual estate, by right or by wrong, and, as against the feoffor or conusor and his heirs, not only divested them of what they then had, but of every estate which they might thereafter, by any possibility, acquire,^ and this doctrine has been applied in modern times.^ The second was where the assurance was by lease, under which, it will be remembered, estates could take effect in futuro ; and the estoppel seems to have been put upon the ground of such having been the contract or agreement between the parties, — ^ the same contract which implied a covenant for quiet enjoyment from the word demise on the part of the lessor, and a covenant for payment ' Sheppard's Touch. 204-210; Co. Litt. 9 a, 49 a; Plowden, 423. This is thus lucidly put in WiUiams on Real Property: " The formal delivery of the seisin or feudal possession, which always took place in a feoffment, rendered it, till recently, an assurance of great power ; so that, if a person should have made a feofFcuent to another of an estate in fee-simple, or of any other estate not warranted by his own interest in the lands, such a feoffment would have operated hy wrong, as it is said, and would have conferred on the feoffee the whole estate limited by the feoffment along with the seisin actually delivered. Thus, if a tenant for his own life should have made a feoffment of the lands for an estate in fee-simple, the feoffee would not merely have acquired an estate for the life of the feoffor, but would have become seised of an estate of fee-simple by wrong ; accordingly, such feoffment by a tenant for life was regarded as a cause of forfeiture to the person entitled in reversion ; such a feoff- ment being, in fact, a conveyance of his reversion without his consent to another person;" p. 142 (9th ed.). = Doe d. Christmas v. Ohver, 6 Man. & Ryl. 202 ; s. c. 10 Barn. & Cress. 181 ; Helps v. Hereford, 2 Barn. & Aid. 242 ; Doe d. Thomas v. Jones, 1 Cromp. & Jerv. 528. See the examination of Messrs. Humphries, Coote, &c., before the Real Property Commissioners, 1 Real Prop. Report. BY WAT OP ESTOPPEL OR REBUTTER. 385 of the rent from the words yielding and paying on the part of the lessee.^ These modes of assurance were the only ones by which an after- acquired title was actually passed by direct operation of laiv under the doctrine of estoppel. Thus a grant or a release had not this effect. They only operated upon the estate which the grantor or releasor actually had, " and therefore if a man grant a rent-charge out of the manor of Dale, and in truth he hath nothing in that manor, and after he purchases the manor, yet he shall hold it dis- charged," 2 and this applied equally to a release.^ And as the ' Bac. Abr. tit. Leases, 296-441 ; Rawlyns' case, 4 Coke, 63 ; Weale v. Lower, PoUexfen, 60 ; Smith ». Low, 1 Atkyns, 490 ; Trevivan u. Lawrance, 1 Salk. 276 ; Webb v. Austin, 7 Man. & Grang. 701 ; McKenzie w. The City of Lexington, 4 Dana (Ky.), 129. The doctrine of these cases is, indeed, one which naturally arises from the peculiarity of the relation between landlord and tenant, to which also other branches of the law of estoppel apply. The estoppel in pais which prevents the tenant from denying the landlord's title, depends upon the tenant's obligation, express or implied, that he will at some time or in some event surrender the possession. The distinction between the relation of land- lord and tenant and that of vendor and purchaser is clearly recognized in the cases cited supra, p. 160. In Williams on Real Property (9th ed.), 378, the law on this subject is thus noticed: " The circumstance that a lease for years was anciently nothing more than a mere contract, explains a curious point of law relating to the creation of leases for years ivhich does not Jiold with respect to the creation of any greater interest in land. If a man should by indenture lease lands in which he has no legal interest, for a term of years, both lessor and lessee will be estopped during the term, or forbidden to deny the validity of the lease. This might have been expected. But the law goes further, and holds that if the lessor should at any time during the lease acquire the lands he has so let, the lease, which before operated only by estoppel, shall now take effect out of the newly acquired estate of the lessor, and shall become for all purposes a regular estate for a term of years. If, however, the lessor has at the time of making the lease any interest in the land he lets, such interest only will pass, and the lease will have no further eifect by way of estoppel, though the interest purported to be granted be really greater than the lessor had at the time power to grant." 2 Perkins, tit. " Grant," §65; Wivel's case, Hobart, 46; Touch. 240; Lam- pet's case, 10 Coke, 48. ^ Brooke's Abr. "Estoppel," pi. 146; Doe d. Lumley v. Scarborough, 3 Adolph. & Ellis, 2, where it was conceded in the argument. Thus, in Right d. Jefferys v. Bucknell, 2 Barn. & Adolph. 278, Jarvis the elder, having contracted to purchase certain premises, was let into possession by order of the Court of Chancery, and afterwards, without having received a conveyance, devised them to his son, Jarvis the younger, who entered and mortgaged them by indentures 25 386 THE OPERATION OP COVENANTS FOR TITLE conveyances in use at the present day, which derive their efficacy by virtue of the statute of Uses, and which, as distinguished from of lease and release to the lessors of the plaintiff, reciting that he was legally or equitably entitled thereto, and covenanting that he was legally or equitably, rightfully, absolutely and solely seised, &c. Some years after, the legal title was conveyed to Jarvis the younger, whereby he became seised of the legal estate, which he afterwards conveyed by mortgage for a valuable considera- tion to Bueknell, the defendant, who had no notice of the prior mortgage, and to whom all the title-deeds were delivered, and upon ejectment being brought by the first mortgagee against the second, it was held that at law the plaintiif was not entitled to recover. " The question on which the court took time to con- sider,'' said Lord Tenterden, who delivered the opinion, "was whether the defendant, claiming under the mortgagor, Jarvis the younger, could set up as a defence against the lessors of the plaintiff the legal estate acquired by him since their mortgage, and it has been argued for them that he, as representing the mortgagor, is estopped from doing so ; and for this pur- pose Co. Litt. 352 a, Litt. § 693, and the cases of Bensley v. Burdon, 2 Sim. & Stu. 519 ; Helps v. Hereford, 2 B. & Aid. 242 ; Goodtitle v. Morse, 3 Term, 865 ; Goodtitle v. Bailey, Cowper, 597 ; Goodtitle v. Morgan, 1 Term, 755 ; Doe d. Christmas v. Oliver, 10 B. & C. 181 ; Trevivan v. Lawrance, 1 Salk. 275 ; S. o. 2 Lord Raym. 1048, and Taylor v. Needham, 2 Taunt. 278, were cited. Of these cases none are applicable to the point in question except Goodtitle V. Morgan, and Bensley v. Burdon (of which more presently), and Helps V. Hereford, and Doe v. Oliver. The last two are cases of estoppels arising out of fines levied before any interest vested, and there is no doubt that a fine may operate by way of estoppel, but the present is not the case of a fine. In § 693, Littleton, speaking with reference to the doctrine of remitter, says, ' This is a remitter to him, if such taking of the estate be not by deed indented, or by matter of record, which shall conclude or estop him ; ' and in Lord Coke's commentary upon this passage, a deed indented is distinguished from a deed-poll in this particular of remitter, for the deed-poll is only the deed of the feoffor, donor, and lessor, but the deed indented is the deed of both parties, and therefore as well the taker as the giver is concluded, Li 352 a. Lord Coke divides estoppels into three sorts, the second of which he thus defines : ' By matter in writing as by deed indented, by making of an acquittance by deed indented or deed-poll, by defeasancy by deed indented or deed-poll.' And there are many other authorities to show that estoppel may be by any indenture or deed- poll. But upon this rule there are many qualifications and exceptions engrafted. It is a rule that an estoppel 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 pos- sibility; Co. Litt. 852 6, where the case is put: 'An impropriation is made after the death of an incumbent to a bishop and his successors. The bishop, by in- denture, demiseth the parsonage for forty years, to begin after the death of the BY WAY OP ESTOPPEL OK REBUTTER. 387 some of the common-law modes of assurance, were called " innocent conveyances," viz., deeds of bargain and sale, lease and release, incumbent. The dean and chapter confirmeth it; the incumbent dieth. This demise shall not conclude, for it appeareth that he had nothing in the impropri- ation till after the death of the incumbent.' This passage from Co. Litt. is adopted by Ch. B. Comyns in his Digest, Estoppel (Ei 2). Now, in the case at bar, the very truth that the mortgagor, Jarvis the younger, had only an equitable interest, is partly admitted ; for the recital states, in the alternative, that he is lawfully or equitably entitled, and the covenant for title is to the same effect. At all events, there is in this recital a want of that certainty of allega- tion which is necessary to make it an estoppel. Lord Holt lays it down in Salter V. Kidley, 1 Show. 59, that a general recital is not an estoppel, though a recital of a particular fact is. And upon this the judgment of the Lord Chancellor in the recent case of Bensley u. Burdon, which was relied upon by the counsel for the lessors of the plaintiff, proceeded. The deed of release in that case recited- that Francis Tweedie the younger was, subject to his father's life-estate, seised or possessed of, or well entitled to the lands and tenements thereinafter men- tioned in reversion or remainder, and by the deed he granted and released this remainder, and covenanted that he was seised of it for an indefeasible estate of inheritance. The present Master of the Rolls, then Vice-Chancellor, by whom this case was first decided, according to the report in 2 Sim. & Stu. 619, held that this was an estoppel, upon the general ground that it was a deed indented, and that the nature of the conveyance, namely, lease and release, made no difference. The Lord Chancellor confirmed this judgment (5 Russel's Ch. R.), but put it on this solely, that it was an allegation of a particular fact by which the party making it was concluded (see this case infra). That case, therefore, greatly differed from the present, in which there is no certain precise averment in the deed of release of any seisin in Jarvis the younger, but a recital only that he was legally or equitably entitled. We think, there- fore, that this recital does not operate by way of estoppel. We are of opinion, also, that the release whereby Jarvis granted, bargained, sold, aliened, remised, released, &c., the premises, does not, by mere force of these words, amount to an estoppel. Littleton lays it down, § 446, that ' no right passeth by a release, but the right which the releasor hath at the time of the release made. For if there be a father and a son, and the father be disseised, and the son (living his father) releaseth by his deed to the disseisor all the right which he hath or may have in the same tenements without clause of warranty, &c., and after his father dieth, &c., the son may lawfully enter upon the possession of the disseisor.' To the same effect is Wivel's case, Hob. 45, and Perk. § 65, that where a son and heir joins in a grant in the lifetime of his father, while he has neither possession nor right in the matter granted, the grant is utterly void, and nothing passes. So here, if the release pass nothing but what the releasor lawfully had, and he had. no legal title in the premises at the time of the release made, those who claim under him by a subsequent good title are at liberty to show this ; and there is no iuiplied estoppel, as appears from the authorities just cited, and the Year 388 THE OPERATION OF COVENANTS FOE TITLE &c., pass no more than the actual estate of the party, it naturally follows that they have no greater efficacy by way of estoppel tlian the common-law grant or release.^ Where, however, it has distinctly appeared in such conveyance, either by a recital, an admission, a covenant, or otherwise, that the parties actually intended to convey and receive, reciprocally, a Books, 49 Edw. III. 14, 15 ; 45 Ass. 5 ; 46 Ass. 6 ; and Brooke's construction of these books in bis Abr. tit. Estoppel, pi. 146 ; 10 Vin. Abr. Estoppel, M. The case was put, in argument, on another ground for the lessors of the plaintiff, namely, that it was within the common rule that a mortgagor 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 recognized in modern times. But we are of opinion that it does not apply to the present case. Here the defendant Bucknell claims as the purchaser for a valuable consideration without notice, a legal interest which was not in Jarvis at the time of his mortgage to the lessors of the plaintiff, and Jarvis had then an equitable interest which passed to them, and which is not questioned nor sought to be disturbed by the defence which Bucknell sets up. This case much resembles that of Goodtitle v. Morgan, 1 Term, 755, where a second mortgagee, without notice, who got in the legal title by taking an assign- ment, from a trustee and the mortgagor, of an outstanding term assigned to attend the inheritance, was holden entitled to a legal preference against the first mortgagee. There, as here, it might be said that he was bound by the same conclusion as the mortgagor, and should not question the right of the prior mortgagee. But the legal title prevailed there, and so we think it ought here." The student will observe that this argument was based solely on the rights of the parties as presented in a court of law, and that it is expressly said that the equitable interest which passed to the lessors of the plaintilf was " not questioned nor sought to be disturbed by the defence 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 mortgagee ot pur- chaser, as an executory agreement to convey, whenever the intention of the par- ties is apparent, and sustained by a sufficient consideration ; Seabourne v. Powell, 2 "Vernon, 11 ; supra, p. 199 ; Lamar v. Simpson, 1 Rich. Eq. (S. C), 71 ; and see infra. Doe v. Pott, 2 Douglas, 720, decided by Lord Mansfield in 1781, was a case where a lord of a manor having mortgaged the manor, afterwards purchased copyhold lands held of this manor, and took surrenders of them ; and it was held that by the mortgage of the " manor" all its consequences and incidents passed ; that the manor being mortgaged in fee, the mortgagor could not afterwards sever the copyholds, because that would have diminished the security, " for the mort- gagee had a right to the services, quitrents, escheats, forfeitures and other casualties." 1 Kennedy v. Skeer, 3 Watts (Pa.), 98; Clark v. Baker, 14 Cal. 627. BY WAT OF ESTOPPEL OR EEBUTTEB. 389 certain estate, they have been held to be estopped from denying the operation of the deed according to this intent.^ There was then an ordinary and an extraordinary effect attaclied to an estoppel. The one was personal in its character, like the rebutter in a warranty, and estopped the grantor and his heirs from doing or alleging any thing contrary to the tenor and effect of his sealed instru;nent. The other, besides this quality, possessed the high function of actually transferring every estate, present or future, vested or contingent, to the feoffee, conusee, or lessee, accord- ing as the mode of assurance employed was a feoffment, a recovery, a fine, or a lease ; and this effect was peculiar to them alone, there being no authority^ in any of the English books to show that it was produced by any other species of conveyance.^ This brief sketch of some of the principal features of the doctrine of estoppel by deed has been here presented as introductory to an important class of cases which, on this side of the Atlantic, have given to some of the modern covenants for title, and especially to the covenant of warranty, the sweeping operation just referred to which is properly attributable only to the effect of an estoppel in its highest sense. It was decided, in two early cases in New York, that where one, by deed of bargain and sale, or lease or release, conveyed land to which he had no title, he was estopped by his deed from claiming any after-acquired estate in it.* ' Goodtitle V. Bailey, Cowper, 597 ; Doe u. Errington, 8 Scott, 210 ; Bowman V. Taylor, 2 Adolph. & Ellis, 278 ; Carver v. Jackson, 4 Peters, 86 ; Van Ren- sellaer v. Kearney, 11 How. (U. S.) 325 ; French v. Spencer, 21 id. 240 ; Smith V. Pendell, 19 Conn. 107; McBurney v. Cutler, 18 Barb. (N. Y.), 208; Root V. Crock, 7 Barr (Pa.), 380; Kinsman v. Loomis, 11 Ohio, 478; Williams v. Presbyterian Society, 1 Ohio St. R. 478; Den «. Brewer, Coxe (N. J.), 172; Decker v. Caskey, 2 Green's Ch. (KT. J.) 449; Fitzhugh v. Tyler, 9 B. Mon. (Ky.) 561; Williams «. Claiborne, 1 Sm. & Marsh. Ch. (Miss.) 365; Clark V. Baker, 14 Cal. 627 ; Gibson v. Chouteau, 39 Mo. 636, approving the text. 'Except the case of Bensley v. Burden, 2 Sim. & Stu. 519, which has since been overruled. See infra. ^ See Doe v. Oliver, 2 Smith's Lead. Cas. The quotation from Littleton, § 446, will be presently referred to. -■* Jackson v. Bull, 1 Johns. Cas. 81; Jackson u. Murray, 12 Johns. 2 Jackson v. Bull was decided by Kent, J., upon the following authorities : Ischam 390 THE OPERATION OP COVENANTS FOB TITLE But this doctrine, which, we have seen, is unsupported by early authority, was soon after abandoned, and it was held, reversing the cases referred to, that where one conveyed land to which he had no title, by deed of bargain and sale containing no covenants for title, nor any intimation that the grantee expected to become invested with an estate of a particular description, a subsequently acquired title would not enure to the benefit of the grantee, even as against the grantor and his heirs. ^ This decision has been almost consistently followed, and a large class of cases, both in New York and throughout the United States generally, have seemed to settle upon the conclusion that, as a general rule, in order that an after-acquired estate should pass by estoppel, it is necessary that the deed should contain covenants for title of some V. Morrice, Cro. Car. 110 ; Co. Litt. 45 a, 47 6, 352 a, 6 ; Rawlyns' case, 4 Coke, 63 a; Piggot v. Earl of Salisbury, 2 Mod. 115; Trevivanu. Lawrance, 6 id. 258; s. c. 1 Salk. 276 ; Palmer v. Ekins, 2 Raym. 1551 ; Nick v. Edwards, 3 P. Wms. 373, which indeed justify the conclusion arrived at by that learned judge, that "if a man make a lease of land by indenture which is not his, or levy a fine of an estate not vested, and 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 to and conveyances under the statute of Uses has already been noticed. Nelson, J., in speaking (in Pelletreau v. Jackson, 11 Wend. 119) of Jackson v. Bull and Jackson v. Murray, said, "It does not appear in either of them whether there was a covenant of warranty or not. . . . If not, though the doctrine of them may be sound, I apprehend there would be difficulty in reconciling them with the rule in Littleton ; " &c. The rule thus referred to will be presently noticed. ' Jackson v. Wright, 14 Johns. 193. The facts were these : Peter Boise by deed-poll in 1794 granted, bargained, sold, and quitclaimed to the lessor of the plaintiff, in fee, " all that military right or parcel of land granted to him as bounty lands, for his services during the late war." The deed contained no cove- nants for title. In 1806, an act of the legislature was passed, authorizing letters- patent to be granted to Boise " for the quantity of two hundred acres of land in the tract set apart for the use of the line of this State, serving in the army of the United States," and the land was accordingly patented to him. The judge ruled that the deed from Boise to the lessor of the plaintiff, being prior in date to the patent, did not entitle him to recover, and a verdict having passed for the de- fendant, the case was submitted, on a motion for a new trial, without argument, when it was said, " the deed from Boise to McCrakin is a bargain and sale and quitclaim, and he had then no title to convey in the premises ; and no title not then in esse would pass unless there was a warranty in the deed, in which last case it would operate as an estoppel for avoiding circuity of action." BY WAT OF ESTOPPEL OR REBUTTEE. 391 sort or kind.i In some of the States, however, statutory enact- ments exist upon the subject.^ ' Jackson v. Hubble, 1 Cowen (N. Y.), 613; Jackson v. Winslow, 9 id. 18; Jackson v. Bradford, 4 Wend. (N. Y.) 622 ; Pelletreau v. Jackson, 11 id. 119 ; Jackson V. Waldron, 13 id. 178 ; Varick v. Edwards, 1 Hoflfm. Ch. R. (N. Y.) 382; 11 Paige (N. Y.), 290; Edwards i. Varick, 5 Denio (N. Y.). 665 (these five cases were, in fact, the same controversy which arose under the will of Med- cef Eden;' Sparrow v. Kingman, 1 Comst. (N. Y.) 247; Comstock v. Smith, 13 Pick. (Mass.)116; Blanchard u. Brooks, 12 id. 47, 66; Taft w. Stevens, 3 Gray (Mass.), 504; Pox v. Widgery, 4 Greenl. (Me.) 218; Ham v. Ham, 14 Me. 351 (thus in cases of involuntary alienation, as where a creditor levies upon land of his debtor, the latter is not estopped to assert a subsequently ac- quired title; Freeman v. Thayer, 29 Me. 369); Dart v. Dart, 7 Conn. 256; Doswell » Buchanan, 3 Leigh (Va.), 365 ; Kinsman v. Loomis, 11 Ohio, 475; Bell V. Twilight, 6 Foster (N. H.), 401 ; Tillotson v. Kennedy, 5 Ala. 413 ; Prink V. Darst, 14 111. 308, overruling Frisby v. Ballance, 2 Gilm. (111.) 141 ; Bennett V. Waller, 23 111. 182 ; Mitchell v. Woodson, 37 Miss. 578 ; Cadiz v. Majors, 33 Cal. 288 ; Quivey v. Baker, 37 id. 465 ; Howe v. Harrington, 3 C. E. Green Ch. (N. J.) 495. ' The Revised Statutes of Arkansas provide that " if any person 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 afterwards acquire the same, the legal or equitable estate afterwards acquired shall immediately pass to the grantee, and such con- veyance 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, § 4; Cocke u. Brogan, 6 Pike, 699. So, in Missouri, the Revised Statutes of 1825 declared, " If any person 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 legal estate or interest therein at the time of the sale and conveyance, but after such sale and conveyance the vendor shallbecome possessed of and confirmed in the legal estate to the land or real estate so sold and conveyed, it shall be taken and held to be in trust, and for the use of the grantee or vendee, and the conveyance aforesaid shall be held and taken, and shall be as valid as if the grantor or vendor had the legal estate or interest at the time of said sale or conveyance." The Revised Statutes of 1845 provide that " if any per- son shall convey any real estate, by conveyance purporting to convey the same in fee-simple absolute, and shall not, at the time of such conveyance, have the legal estate in such real estate, but shall afterwards acquire the same, the legal estate sub- sequently acquired shall immediately pass to the grantee, and such conveyance shall be as valid as if such legal estate had been in the grantor at the time of the convey- ance ; " Rev. Stats. 1845, c. 32, § 3, p. 219. See Bogy u. Shoab, 13 Mo. 379 ; Valle V. Clemens, 18 id. 490 ; Geyer v. Girard, 22 id. 159 ; Gibson v. Chouteau, 39 id. 567. In Illinois, the Revised Statutes of 1833, p. 131 (Gross St. 1870, p. 85 § 7) , are expressed in precisely similar language, Frink v. Darst, 14 111. 308 ; as is also the California statute, Acts of 1850, p. 252. " The section cited from the 392 THE OPERATION OF COVENANTS FOE TITLE Where, however, the deed does contain certain of the covenants for title, it has been held by a large class of cases that, as a general rule, any after-acquired estate will enure, by virtue of the cove- nants, to the party claiming under the conveyance, and to his heirs and assigns, with the same effect to all intents and purposes as if such estate had originally passed ly the deed} statutes of this State goes beyond the usual covenant of warranty. Its effect is the same as if it were written upon its face that the grantor conveyed all the estate which he then possessed, or which he might at any time thereafter acquire ; " per Field, C. J., in Clark v. Baker, U Cal. 612 ; Morrison v. Wilson, 30 id. 344 ; Green v. Clark, 31 id. 593. In Kansas, the General Statutes of 1860 are to the same effect ; Gen. Stat. 1860, c. 22, § 5, p. 185. The Revised Code of Iowa pro- vides that " when a deed purports to convey a greater interest than the grantor was at the time possessed of, any after-acquired interest of such grantor, to the extent of that which the deed purports to convey, enures to the benefit of the grantee ; " Kev. Code 1860, u. 95, § 2210, p. 390. In Louisana the Civil Code provides that " if a person contracting an obligation towards another grants a mortgage on property of which he is not then owner, this mortgage shall be valid if the debtor should ever after acquire the ownership of the property, by whatever right; " Civil Code, art. 3271; Amonett v. Amis, 16 La. An. 226. The Ken- tucky statutes have been already referred to supra, p. 377. In Norcum v. Gaty, 19 Mo. 65, it is said, " No principle of the Spanish law is known making an after-acquired title enure to the benefit of a former grantee.'' ' Jackson «. Winslow, 9 Cowen (N. Y.), 18; Kellog v. Wood, 4 Paige (N". Y.), 578; Sparrow v. Kingman, 1 Comst. (N. Y.) 246 ; Rathbun v. Rath- bun, 6 Barb. S. C. (N. Y.) 107 ; Hoyt v. Dimon, 6 Day (Conn.), 479 ; Dudley V. Cadwell, 19 Conn. 226 ; Sherwood v. Barlow, id. 476 ; Lawry v. Williams, 13 Me. 281; Baxters. Bradbury, 20 id. 260; Pike v. Galvin, 29 id. 183 (over- ruling, as to the operation of the particular covenant there employed, Fairbanks v. Williamson, 7 Greenl. 96) ; Williams v. Thurlow, 31 Me. 395 ; Kimball v. Blais- dell, 6 N. H. 533 ; Wark v. Willard, 13 id. 389 ; Thorndike v. Norris, 4 Foster (N. H.), 454; Jewell v. Porter, 11 id. 39; Kimball v. SchofiF, 40 N. H. 190; Hayes v. Tabor, 41 id. 521 ; Middlebury College v. Cheney, 1 Vt. 349 ; Blake V. Tucker, 12 id. 44 ; Somes v. Skinner, 3 Pick. (Mass.) 52 ; Blanchard v. Brooks, 12 id. 47; Comstock v. Smith, 13 id. 116; Trull v. Eastman, 8 Met. (Mass.) 121 ; Wade v. Lindsey, 6 id. 413 ; Gibbs v. Thayer, 6 Cush. (Mass.) 30; Ruggles v. Barton, 13 Gray (Mass.), 506 (see Potter v. Potter, 1 R. I. 44; Gough V. Bell, 1 Zabr. (N. J.) 156; Moore v. Rake, 2 Dutch. (N. J.) 674; Brundred v. Walker, 1 Beasley's Ch. (N. J.) 140; Funk v. New- comer, 10 Md. 316 ; Patterson v. Pease, 6 Ohio, 190 ; Scott v. Douglass, 7 id. 227; Barton v. Morris, 15 id. 408; Mitchell v. Petty, 2 Hagan (W. Va.), 470; Thomas v. Stickle, 32 Iowa, 72; Davis ». Keller, 5 Rich. Eq. (S. C.) 434; Massie v. Sebastian, 4 Bibb (Ky.), 436 ; Logan v. Moore, 7 Dana (Ky.), 76 ; Logan V. Steel, 4 Monr. (Ky.) 433; Diokerson v. Talbot, 14 B. Mon. 64; Rigg V. Cook, 4 Gilm. (111.) 348 ; Bennet v. Waller, 23 111. 183 ; Dewolf v. Hay- don, 24 id. 625; Jones v. King, 26 id. 384; King v. Gilson, 32 id. 848; BY WAT OP ESTOPPEL OR REBUTTER. 393 But while this general doctrine is established by such a cloud of authorities, they are not altogether consistent, first, as to the grounds upon which the doctrine is based, nor, secondly, as to what covenants will or will not produce such an effect. And, first, as to the grounds upon which the doctrine is based. As a general rule, the doctrine is said to rest on the ground of avoiding circuity of action, and hence in those cases in which, for any reason, no right of action ever existed on the covenant, or the same has been released, extinguished or otherwise has ceased, there will, according to some authorities, be no estoppel, and the after-acquired estate will not pass. Thus, in recent cases in Maine, in which State it is now held that no action will lie upon what is called the covenant of non-claim (that is to say, a covenant that neither the grantor nor any other person shall ever claim any right or title to the premises ^), it has been decided that where that is the only covenant in the deed, inas- much as there was never any right of action upon it, there will be no estoppel,^ and the law had previously been held the same way in New York.^ So where the deed, although containing general cove- nants for title, does not, on its face, purport to convey an inde- feasible estate, but only " the right, title, and interest " of the grantor, in cases where those covenants are held not to assure a perfect title, but to be limited and restrained by the estate conveyed, the doctrine of estoppel has been considered not to apply ; in other words, although the covenants are, as a general rule, invested with the highest functions of an estoppel in passing, Gochenour v. Mowry, 33 id. 333 ; Robertson v. Gaines, 2 Humph. (Tenn.) 383 ; Kennedy v. McCartney, 4 Porter (Ala.), 141; Tillotson v. Kennedy, 5 Ala. 413 ; Beau v. Welsh, 17 id. 772 ; Wightman v. Reynolds, 24 Miss. 675 ; Mitchell V. Woodson, 37 id. 578 ; Pierce v. Milwaukee R. R., 24 Wis. 553 ; O'Bannon v. Paremour, 24 Ga. 493 ; Terreitt v. Taylor, 9 Cranch (U. S.), 52 ; Mason v. Mun- caster, 9 Wheat. (U. S.) 445; Irvine v. Irvine, 9 WaU. (U. S.) 617. In Reeder v. Craig, 3 McCord (S. C), 411, and Harmer v. Morris, 1 McLean (C. C. U. S.), 44, it does not appear whether there was a warranty or not, but it was held that the after-acquired estate passed. ' See supra, p. 29. ' Pike V. Galvin, 29 Me. 185 (overruling Fairbanks v. Williamson, 7 Greenl. 97 ; see the dissenting opinion of Wells, J., 30 Me. 539 ; and see Ham v. Ham, 14 Me. 355, where Fairbanks v. Williamson was virtually denied) ; Partridge v. Patten, 33 Me. 483; Loomis v. Pingree, 43 id. 314; Harriman v. Gray, 49 id. 638. See these cases more particularly referred to infra. ^ Jackson v. Bradford, 4 Wend. (N. Y.) 622. 394 THE OPERATION OF COVENANTS FOK TITLE by mere operation of law, an after-acquired estate, yet they will lose that attribute when it appears that the grantor intended to convey no greater estate than he was possessed of.^ Thus where, in a case in Massachusetts, 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, conveyed " all his right, title, and interest in and to the undivided real estate devised," with unlimited covenants of warranty and for quiet enjoyment, it was held that the deed conveyed only his vested interest, and the warranty being only coextensive with the grant, he was not thereby estopped to claim the contingent interest when it became vested by the happening of the contingency,^ and ' White V. Brocaw, 14 Ohio St. 343, quoting the text; Adams v. Ross, 1 Vroom (N. J.). 509, reversing s. c. 4 Dutch. 160. = Blanchard v. Brooks, 12 Pick. (Mass.) 47, 67. " The grant in the deed," said Shaw, C. J., in delivering the opinion, " is of all his right, title, and interest in the land, and not of Ihe land itself, or any particular estate in the land. The warranty is of the premises, that is, of the estate granted, and must be confined to estate vested. A conveyance of all the right, title, and interest in land is cer- tainly sufficient to pass the land itself, if the party conveying has an estate therein, at the time of the conveyance, but it passes no estate which is not then possessed by the party; Brown v. Jackson, 3 Wheat. 452. The grant in legal effect operated only to pass the vested interest, and not the contingent interest, and the warranty being coextensive with the grant, did not extend to the con- tingent interest, and, of course, did not operate upon it by way of estoppel." So in Miller J). Ewing, 6 Cush. (Mass.) 34, it was said; "The principle is that if any person who in terms conveys land or any specific interest in land with war- ranty, and does not own it, afterwards acquires that same land or specific interest, such acquisition enures to the benefit of the grantee, because the grantor and those who are privy in estate with him are estopped to deny against the terms of the warranty that he had the title in question. The warranty is coextensive with the estate, right, or interest, which the deed purports to pass. But such war- ranty does not apply to the present case. Miller and his brothers, when they conveyed to Ball and Day with warranty against themselves and their heirs, had an estate and interest derived by descent from their father, and to this, and this alone, both the grant and the warranty applied. So of Ball and wife, when they conveyed to Day. But they did not purport to grant or warrant an estate, which they might, at a future time, derive by descent from their sister Hepzibah Day. They are therefore not estopped by that warranty from claiming this estate by a new and distinct title ; Blanchard v. Brooks, 12 Pick. 47 ; Comstock v. Smith, 13 id. 116. The case of Trull v. Eastman, cited by the defendant, is no authority for a contrary doctrine. The deed in that case was a conveyance, in terms, from one brother to another, of all the estate or interest which the grantor had or which might come to him by will or heirship, with the clause, ' so that neither I,' &c. BY WAT OF ESTOPPEL OR REBUTTER. 395 this doctrine has been repeatedly and recently confirmed not only in that State but in others.^ So it has been held that where the covenant for seisin is satisfied by the transfer to the purchaser of an actual though a tortious seisin (as is tlie case in several of the New England States),^ no estoppel will be created by that covenant.^ So, too, it is consid- ered that there is no estoppel when the covenants have beeu extinguished.* So, where the covenants are limited to the acts of There the premises or interest conveyed was a mere possibility, an expectancy ; nothing passed by the conveyance, but it purported to convey a future interest to be acquired ; and the warranty was held coextensive with the grant, and estopped the grantor after the estate accrued from demanding it. These grants did bind all the grantor's own four-fifths of the reversion, but did not extend to the undivided fifth of Hepzibah, who never conveyed to anybody her original one-fifth, which descended to her from her father." ' Derby v. Jones, 27 Me. 361 ; Coe v. Persons unknown, 43 Me. 436 ; Hall V. Chaffee, 14 N. H. 215 ; Wight v. Shaw, 5 Cush. (Mass.) 56 ; Wynn v. Har- man, 5 Gratt. (Va.) 162; Lewis v. Baird, 3 McLean (C. C. U. S.),78; Valley. Clemens, 18 Mo. 486. " The deed only purports to pass all the right, title and estate which the grantor possessed in the land, and does not operate upon interests subsequently acquired. If the plaintiff at the time possessed any estate in the premises, whether in fee, or for life, or for years, the same vested by the conveyance, and the effect of the covenant is only to estop him and parties under him from asserting any claim to such estate. In other words, the terms of the deed denote that the- grantor only intended to transfer the estate which he at the time possessed, and the covenant is restrained by the estate conveyed ; " Gee v. Moore, 14 Cal. 474 ; Kimball v. Semple, 25 id. 452 ; Hope v. Stone, 10 Minn. 149. In Brigham v. Smith, 4 Gray (Mass.), 297, it was obviously held that the covenant of warranty in a conveyance did not estop the grantor from claiming a way of necessity over the land conveyed. ^ See supra, p. 56 et seq. ' Fox V. Widgery, 4 Greenl. (Me.) 218 ; Allen v. Sayward, 5 id. 231 ; Doane V. Willcutt, 5 Gray (Mass.), 333. ■* Goodel V. Bennett, 22 Wis. 565. In this case it seems that the defendant, in 1851, conveyed the premises in question with covenants for seisin, of warranty, and against incumbrances, and, by virtue of several mesne conveyances, they becarhe vested in Chicks, who, by the treaty of February 5, 1856 (11 U. S. Stat. 664), ceded them to the United States. In 1860 a patent was issued to Davids, who conveyed to the defendant. Chicks having died, his administra- tor in 1862 sold the property to the plaintiff, and the court clearly held that the action could not be maintained. " The covenants ran with the land to the United States when it was ceded by Chicks under the treaty, and have thence passed by conveyance back to the defendant, and are thus extinguished. The plaintiff, by having taken a conveyance from an intermediate grantee after such grantee had parted with his title, is in no condition to insist upon an estoppel, or that the sub- sequently acquired title of the defendant enures to his benefit." 396 THE OPERATION OP COVENANTS FOR TITLE the grantor, and, by reason of the defect of title not being of his creation, and therefore not coming within the scope of the covenant, the purchaser could not sustain an action upon them, there will be no estoppel, and the after-acquired estate will not pass to the latter.^ And the same doctrine has been obviously applied where the ' Thus in Corastock v. Smith, 13 Pick. (Mass.) 116, the tenant of one Waters purchased the premises by parol, and paid part of the purchase-money. He was afterwards disseised by the demandants, who, pretending that they had a lawful title to the premises, subsequently sold them to the tenant. At the expiration of a year, the latter, finding that the demandants had no title, reconveyed to them all his " right, claim, and demand in and to the premises," and covenanted to warrant and defend them " against the lawful claims and demands of all persons claiming by or under liim," and the demandant thereupon refunded the considera- tion-money. The tenant subsequently, in pursuance of the parol contract, re- ceived a conveyance from Waters, who was the true owner, when the demandants brought a writ of entry against him, on the ground that the after-acquired title under the deed from Waters enured, by virtue of the covenant of warranty, to their benefit. But Wilde, J., in delivering the opinion of the court, said : " It is a well-settled principle of the common law, that if one conveys 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 his grantee or those claiming under him any title subsequently acquired, either by purchase or otherwise. Such new title will enure, by way of estoppel, to the use and benefit of his grantee, his heirs and assigns. This principle is founded in equity and justice, as well as the policy of the law. It is just that a party should not be permitted to hold or recover an estate in violation of his own covenant ; and it is wise policy to repress litigation and to prevent a circuity of actions, when better or equal justice may be adminis- tered in a single suit. By such a grant with general warranty 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 up a title subsequently obtained by him, because if he should recover against his grantee, the grantee in his turn would be entitled to an action 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 ; whereas, if the grantee were driven to his action to recover the value of the land, exact justice might not be obtained, because the land might possibly not be estimated at its just value. If, however, the grantee were not entitled to recover the value of the land on the grantor's covenant of warranty, then in such a case it is obvious that this species of estoppel would not be applicable. And such appears to be the law in regard to the cove- nant in question, by which the demandants attempt to estop the tenant to set up or plead the title of Waters. The tenant's covenant is a restricted covenant, and is coextensive with the grant or release. He agrees to warrant the title granted or released, and nothing more. That title only he undertook to assert and de- fend. To extend the covenant further would be to reject or do away the restric- tive words of it, and to enlarge it to a general covenant of warranty, against the manifest intention of both parties. The tenant, in covenanting to warrant and BY WAY OP ESTOPPEL OR REBUTTER. 397 covenants are restrained to certain particular claims, and the after- defend the granted or released premises, must be understood to refer to tBe estate or title sold or released, and not to the land, because he did not certainly intend to warrant any estate or title not intended to be conveyed. Now if Waters, after the tenant's quitclaim deed, had evicted the demandants, this would have been no breach of the tenant's covenant. Or if the tenant now held under Waters without having obtained the fee from him, he might pray Waters in aid, and thus defend himself against the title of the demandants, the title of Waters being, as the plea avers, the elder and better title, and this also would be no breach of the tenant's covenant. He did not vmdertake to convey to demandants an indefea- sible estate, but only his own title ; nor did he agree to warrant and defend it against all claims and demands, but only against those derived from himself, by which he must be understood to refer to existing claims or incumbrances, and not to any title which he might afterwards acquire by purchase or otherwise from a stranger ; Ellis v. Welch, 6 Mass. 250. There is, therefore, no reason to be assigned why the tenant should not purchase the title of Raters. The demandants cannot thereby be prejudiced, nor ought they therefrom to derive any benefit. " 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 convey- ance. This also is a well-established principle of common law ; Co. Litt. 45, 47 ; Jackson v. Murray, 12 Johns. 201 ; Jackson v. Bull, 1 Johns. Cas. 91 ; Ischam V. Morrice, Cro. Car. 110. But the tenant, in his plea, does not deny that he had any title to the land ; on the contrary, he avers that, before the time of his con- veyance, he was in possession of the land under Waters, that afterwards the de- mandants disseised Waters, and being seised by disseisin, they conveyed to the tenant all their right and title, with a covenant of warranty, similar to the one contained in his conveyance to them. The demandants, in their turn, would be estopped to aver that they had no title in the land, nor is there any such averment in the pleadings. The tenant, at the time of his reconveyance, might have had a valuable interest in the land by possession and improvements, although Waters had a paramount title. This interest, whatever it was, passed to the demandants by the tenant's deed, and it was all the title he had to convey, or was expected to convey. If under these circumstances the demandants could now acquire, without any con- sideration , another title 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 much in the administration of justice ; it becomes odious only when misunderstood and misapplied. Nothing can be more just than the doctrine of estoppel urged by the demandants' counsel, when applied to a conveyance with the general covenant of warranty ; but to apply the doctrine to the tenant's restricted conveyance and covenant would be a manifest perversion of the principle upon which the doctrine is founded." This decision was approved in Trull v. Eastman, 3 Met. (Mass.) 121, and similar decisions were made in Loomis v. Pingree, 43 Me. 314; Bell v. Twilight, 6 Foster (N. H.), 401 (where there is an elaborate opinion) ; Tillotson V. Kennedy, 5 Ala. 413; Chauvin v. Wagner, 18 Mo. 553. In Doane v. Will- cutt, 5 Gray (Mass.), 329, an indenture of partition was made between the plaintiff, defendant, and other persons, as tenants in common, wherein the par- 398 THE OPERATION OP COVENANTS FOE TITLE acquired title is derived from a source not tlius specified in tlie covenants.' Nor will a grantor be estopped from asserting a title subse- quently acquired by himself by the disseisin of his grantee, or those claiming under him, followed by adverse possession for a period of time sufficiently long to have barred the rights of a stranger.^ So where the deed, by reason of its imperfect execu- ties, reciting their seisin in fee, mutually conveyed certain premises with a cove- nant " that each of the parties might enjoy the same in severalty, free and discharged of all right, title, interest, or claim whatever of them or either of them, or of any persons claiming from, by, or under them, or any of them " (for the effect of the words "by, from, or under,'' see supra, p. 126). At the date of the partition there was an outstanding title in third persons to the portion con- veyed to the defendant, which the plaintiff subsequently purchased and asserted. It was contended on behalf of the defendant that the plaintiif could not set up this title in opposition to the deed of partition, but the court said, per Shaw, C. J. : " The recital of seisin cannot have greater force than a direct covenant of seisin which is not broken by the e.xistence of an outstanding paramount title. It is a covenant that all the right, title and interest which the plaintiff then had, together with a seisin de facto as against him, his heirs and assigns, passed to the defendant. But we think it does not estop him from now asserting, and maintain- ing by proof, that at the time of the partition a third party held an outstanding paramount title, superior to that of either of these parties, and that the plaintiff afterwards acquired that title, and now relies upon it as a good and valid title. It admits that he was then seised (not of an indefeasible title, but de facto), that all the interest he then had passed to the defendant, and that he became seised de facto as against the plaintiff, by force of the conveyance ; Comstock ». Smith, 13 Pick. 116 ; Wight v. Shaw, 5 Cush. 56. This case is clearly distinguishable from that of a convejance of land, with a general covenant of warranty against the lawful claims of all persons. There, if there be an outstanding title, and the grantor with such warranty acquires such title, it enures, without further act, to the use of his grantee. . . . No such estoppel can be claimed under this deed of partition." 1 Quivey v. Baker, 37 Cal. 471 ; Fields !>. Squires, 1 Deady (C. C. U. S.), 366, 380. = Stearns v. Hendersass, 9 Cush. (Mass.) 497 ; Tilton v. Emery, 17 N. H. 636; Smith v. Montes, 11 Texas, 24; Hines u. Robinson, .o7 Me. 330; Franklin V. Dorland, 28 Cal. 180 ; Johnson v. Farlow, 13 Ired. (N. C.) 84 ; Reynolds V. Cathers, 6 Jones Law (N. C), 437 ; Eddleman v. Carpenter, 7 id. 616. In Stearns v. Hendersass, supra, the defendant, in 1826, conveyed certain lands to one Blake, who conveyed to the plaintiff, and the latter brought a writ of entry. The defence set up was an adverse possession by the defendant from the date of his deed to the time of suit (1851), and the court held it to be a good defence. " The proposed defence," said the court, " does not impeach the deed to Blake. It admits its full force and effect as a valid deed, and concedes that, at its date, BY WAT OP ESTOPPEL OK REBUTTER, 399 tion, is insufficient to pass tlie estate, there will, on the application of the same doctrine, viz., that there is no right of action, be no estoppel.^ To create this estoppel, it is also considered to be necessary that the after-acquired estate should be held by the grantor in the same right as that in which his former conveyance was made. Thus where one conveys land in his own right, with covenants for title, and subsequently acquires title thereto as trustee, the doc- trine of estoppel is held not to apply ,^ and it is deemed immaterial whether, in the subsequent conveyance to the former grantor, the trust is expressed or implied.^ a good title passed to the grantee by virtue of it. The whole foundation of the defence rests on an after-acquired title by the tenant, or subsequent acts divest- ing the grantee of his interest in the premises. Full effect is given to the deed of the defendant to Blake, when it is held to vest the absolute title in Blake at its delivery, and that it estops the defendant from setting up any other title as then held adversely. The grantor, in such case, may show a subsequently acquired title from his grantee, and it is no answer to an alleged disseisin, or a bar by more than twenty years' adverse possession, that the disseisor, previous to his entry and the commencement of his adverse possession, fully acknowledged the title of the disseisee. Nor does the covenant of warranty in the deed to Blake estop him from setting up this defence, for it was a good title that was conveyed, and there was no breach of the covenant and of course, no ground for the estoppel against the defendant, by reason of the covenant." ' Patterson v. Pease, 5 Ohio, 191; Wallace v. Miner, 6 id. 370; Kercheval V. Triplett, 1 A. K. Marsh. (Ky.) 493 ; Connor v. McMurray, 2 Allen (Mass.), 204. In Dominick v. Michael, 4 Sandf. S. C. (N. Y.) 417, it was left undecided whether a covenant for further assurance in a void marriage settle- ment would estop a husband from a title as tenant by the curtesy, acquired by reason of the settlement being void. ' Jackson v. Mills, 13 Johns. (N. Y.) 463 ; Sinclair v. Jackson, 8 Cowen (N. Y.), 687; Jackson v. Hoffman, 9 id. 271; Burchard v. Hubbard, 11 Ohio, 316 ; see also Buckingham v. Hanna, 2 Ohio St. 555, infra. ^ Kelley v. Jenness, 50 Me. 455. In this case the defendant conveyed the premises in mortgage to the plaintiff's intestate with covenants of general warranty. At the time of this mortgage a prior mortgage was outstanding, which was subsequently assigned to the defendant. It was, however, proved that this assignment, although absolute on its face, was, with the exception of a small sum, paid for with the money of Hill, to whom it was assigned by the defendant on the day of its purchase by the latter, and it was held that the assignment to the defendant did not enure as a payment for the benefit of the plaintiff, except as to the small amount paid by the defendant with his own money. "In the case," said Kent, J., who delivered the opinion of the court, " of Jackson v. Mills, 13 Johns. (N. Y.) 463, it was held, where one took a deed, merely as trustee for another, although absolute in form, and the consideration 400 THE OPERATION OP COVENANTS FOE TITLE Such is considered, by a large class of American cases, to be the law of " estoppel by deed " as connected with the covenants for title. was paid by the other, and thereupon he gave him a deed, that the latter deed was a mere execution of his trust, and did not operate as an estoppel to any title he might thereafter acquire in his own right to the same lands. The case of Jack- son V. Hoffman, 9 Cowen (N. Y.), 271, reaffirms the above case, and decides that estoppels do not apply, except between parties acting in the same character. In that case, the purchase was made by one in his individual capacity, and the cove- nant was made by him as administrator. Sinclair v. Jackson, 8 Cowen, 665, sustains the same view, and the court say, ' for a conveyance to operate as an estoppel, it is necessary that it should be in the same right with the former one. To estop, a conveyance must be by one claiming under and in right of identically the same power and the same estate as he first conveyed.' " [The learned judge was, however, mistaken in attributing to the court the remarks just quoted from Sinclair v. Jackson. They were used arguendo by the counsel for the defend- ant in error ; see p. 565-566 of the report in 8 Cowen.] " If, as we have seen in the case before us, Jenness took the assignment of the mortgage charged with a trust, it was not in the same character and of the same estate as in his deed to Kelley. He was here a mere trustee. There can be no division or separation in the effect of the assignment. He did not take a conveyance and afterwards have engrafted thereon a trust, allowing the legal estate to vest absolutely and for a time, before any trust arose. The assignment was charged with the trust as soon as executed. Is a trust estate such an after-acquired title as will enure by way of estoppel ? It would hardly be contended that a conveyance to one as trustee for the use and benefit of a charitable association, or a religious body, would thus enure. Nor where the conveyance creates a trust and declares it fully in the deed, and the purpose is to give the whole benefit of the estate to a party named and no personal benefit to the trustee. But an implied trust is equally a trust for the benefit of another as when the trust is declared in writing. It may require a different mode of proof to establish its existence, and it may be limited in case of purchasers without notice. But, being established, it follows the general rules, and is subject to the doctrines applicable to trusts. " A case very similar to this is Burchard v. Hubbard, 11 Ohio, 316. It was where a person, who had no title, conveyed by deed of warranty, and afterwards received title as trustee from the owners, for the purpose of transmitting it to a bona fide purchaser. The court say that in such a case, the doctrine of estoppel does not apply ; that a mere naked title was all that passed through him ; that the title was conveyed as a mere matter of convenience ; that if he had acquired for himself the legal and equitable title, be would have been estopped by reason of the covenants, but it being a mere trust estate no such estoppel can apply. A doctrine analogous to this is found in those cases where the party taking the deed is a mere conduit of the title, he, in fact, having no real interest. In such cases it has been held that the title would not enure to the benefit of a former grantee. Runlet v. Otis, 2 N. H. 167 ; Marsh v. Rice, 1 id. 167. . . . These cases rest upon the general principle that the estate must be acquired by the BY WAT OP ESTOPPEL OB REBUTTER. 401 There are, however, at least four classes of cases which, accord- ing to some of the same decisions, show that the doctrine of estoppel, as applied in many States to passing an after-acquired interest, is not based, as the current of authorities would seem to found it, solely on the principle of preventing circuity of action. 1. One of these is, as will be hereafter shown,i where the ques- tion has arisen between the assignees of the original title and the assignees of that subsequently acquired ; for, as the former have, of course, no right of action against the latter, there can be no circuity of action. 2. The second class of cases is where a married woman in con- veying her own land has joined with her husband in covenants for the title, and it is held that although she cannot be made to respond in damages after his death, yet that the covenants will estop her and those claiming under her from setting up any claim to an after-acquired title.^ This rule, however, has been by no means warrantor in fact and substance as his own property, without intervening rights in third parties, and not as mere trustee for another's use, or as a mere conduit of title. Whilst the law is careful to, see that an after-acquired title, purchased and paid for by the warrantor, shall enure, it is equally careful to guard against any unequitable result by enforcing the rule where the substance is wanting and the rights of others are impaired." ■ Infra, p. 427. ' Hill V. West, 8 Ohio, 226; Massie v. Sebastian, 4 Bibb (Ky.), 436; Fowler v. Shearer, 7 Mass. 21 ; Colcord v. Swan, id. 291 ; Nash v. Spoiford, 10 Met. (Mass.) 192; Doane «. Willcutt, 5 Gray (Mass.), 332. "These decisions," it was said in Hill v. West, " may not seem to be founded upon the reasons which are usually assigned why the covenants in a deed should operate by way of estoppel, that is, to prevent circuity of actions ; still they seem to us to be reasonable, and such as tend to the furtherance of justice ; and when a married woman undertakes, in conjunction with her husband, to convey her land with covenants of warranty, it is sufficient to protect her from the pay- ment of damages for the breach of those covenants ; for all other purposes they should be held operative. If, then, after the execution of the deed to the lessor of the plaintiff, Hildah and Mary Wilcox acquired title to the premises in contro- versy, that title enured to the benefit of the lessor of the plaintiff, and neither they or those claiming under them shall be permitted to defeat the plaintiff by setting up this after-acquired title." And in Fletcher v. Coleman, 2 Head (Tenn.), 384, the court seem to have approved of these decisions, although the case was decided upon another ground. In Graham u. Meek, 1 Oregon, 328, a married woman was held to be estopped by a deed without covenants ; infra, - Ch. XIII. 26 402 THE OPERATION OF COVENANTS FOR TITLE universally recoguized,i and, in some States, this result is pre- vented by statutory enactment.^ When, however, the conveyance only purports to pass the land of the husband, and the wife merely joins to bar her dower, a title subsequently acquired by her in the same lands will not enure to the benefit of the former grantee.^ In such case she is neither bound by the covenants in the deed, nor estopped beyond her inter- est at the time of tiie conveyance.* 3. Another exception to the rule that the estoppel is based on the ground of preventing circuity of action, is in the case of the grant by a State, which, though of course not liable to an action ou the covenants, is yet held to be bound by the estoppel arising therefrom to the same extent as an individual.^ " The State ' Martin v. Dwelly, 6 Wend. (N. Y.) 14; Carpenter v. Schermerhorn, 2 Barb. Ch. (N. Y.) 314; Dominick v. Michael, 4 Sandf. S. C. (N. Y.) 424; Grout V. Townsend, 2 Hill (N. Y.), 557 ; Wadleigh v. Glines, 6 N. H. 18 ; Den d. Hopper V. Demarest, 1 Zabr. (N. J.) 541 ; Hobbs v. King, 2 Met. (Ky.) 141 ; Nun- nally u.White, 3 id. 593 ; Hempstead v. Easton, 33 Mo. 142. In Wight v. &haw, 5 Cush. (Mass.) 65, though the question was left undecided, the court strongly in- clined to the opinion that there would be no estoppel, and in Lowell v. Daniels, 2 Gray (Mass.), 168, it was distinctly held that a married woman who executed a deed of her real estate with covenants of warranty, bearing date previously to the marriage, by the name whicb she then bore, with the fraudulent purpose of im- posing upon some person to be affected by it, and without disclosing the fact of her marriage, did not thereby estop herself and her heirs to set up her title in the land as against her grantee, or against a purchaser from him without notice ; infra, Ch. XIH. ' Thus, in Virginia, the Revised Code of 1849 declares that a privy examina- tion of the wife shall operate to pass the right of dower, and all right and interest of every nature which, at the date of such writing, she may have, but such writing shall not operate any further upon the wife, or her representatives, by means of any covenant of warranty contained therein. This was taken in substance for a prior act re-enacted in 1819 (and was perhaps called into being by the case of Nelson v. Harwood, 3 Call, 394 ; infra, Ch. XDI.), and similar enactments prevail in the States of Delaware, Illinois, Indiana, Michigan, Missouri, and Oregon ; see, in the latter State, Chauvin v. Wagner, 18 Mo. 642 ; infra, Ch. XIII. ^ Jackson v. Vanderheyden, 17 Johns. (N. Y.) 167 ; Raymond v. Holden, 2 Cush. (Mass.) 270 ; Schaffner v. Grutzmacher, 6 Iowa, 137 ; Childs v. McChesney, 20 id. 431 ; O'Neil ». Vanderburg, 25 id. 104; Strawn v. Strawn, 50 111. 33. ^ Griffin V. Sheffield, 38 Miss. 359. ^ Carver v. Jackson, 4 Peters (U. S.), 87 ; People v. Society, 2 Paine's Cir. Ct. 657 ; Denn v. Cornell, 3 Johns. Cas. 174 ; Commonwealth v. Pejepscut, 10 Mass. 155; Commonwealth v. Andre, 3 Pick. (Mass.) 224; Nieto v. Carpenter, 7 Cal. 527 ; Magee v. Hallett, 22 Ala. 718 ; Menard v. Massey, 8 How. (D. S.) 313. BY WAT OP ESTOPPEL Oil REBUTTEE. 403 having parted with all the interest it had in the lands, is estopped from claiming any right thereto ; that the doctrine of estoppel applies to a State as well as to private persons cannot be questioned." ^ In North Carolina, however, the contrary doctrine prevails, and it is there held that a State cannot be estopped.^ 4. The fourth exception is where the covenantor has been ad- judged a bankrupt, and it is held that although his discharge in bankruptcy may be a release from all personal liabihty on his con- tracts,^ yet the estoppel created by his covenants for title still operates upon the estate.* From these four well-settled exceptions it would seem that the doctrine of estoppel does not rest upon that of preventing circuity of action, but that the estoppel is held to take effect by way of pass- ing the after-acquired estate in cases where no right of action what- ever exists upon any of the covenants.- And in Massachusetts it has been held that although all right of action on the covenants may have been barred by the statute of • People V. Society, 2 Paine's Cir. Ct. 557. = Taylor v. Shufford, 4 Hawks (N. C), 116; Candler ». Lunsford, 4 Dev. & Bat. (Law) 407 ; Wallace v. Maxwell, 10 Ired. (Law) 112. " The sovereign power," said Henderson, J., in delivering the opinion in Taylor v. ShufFord, supra, " conveys neither by feoffment, bargain and sale, or any conveyance de- pendent upon livery of seisin or transferring uses into possession. By grant, the sovereign will alone passes the property evidenced by matter of record, and I know of no case where the sovereign power has been estopped." = Infra, Ch. XIII. • Bush V. Cooper, 26 Miss. 599; affirmed 18 How. (U. S.) 82; Stewart u. Anderson, 10 Ala. 510; Chamberlain v. Meeder, 16 N. H. 384; Dorsey v. Gassaway, 2 Harr. & Johns. (Md.) 411. The doctrine on which these cases rest was thus stated by Curtis, J., in Bush ». Cooper, 18 How. (U. S.) 82 : "There is no incongruity with established principles in holding that the per- sonal discharge of the debtor does not free him from the estoppel. If this obligation could rest upon a covenant, effectual in law to charge the grantor in a personal action, it would follow that when such personal liability was released by the bankrupt act, the estoppel would naturally fall with it, and that an inten- tion to preserve the estoppel ought to be clearly indicated, to induce the court to say it was not destroyed ; but such estoppels do not depend on personal liability for damages. This is apparent, when we remember that estoppels bind not only parties, but privies in blood and estate, though not personally liable on the covenants creating the estoppel." 404 THE OPERATION OP COVENANTS FOR TITLE limitations, yet as the covenants themselves are still subsisting, they will operate to transfer an after-acquired title to a former grantee.^ Having thus referred to the grounds upon which the doctrine is based, we proceed to consider, — Secondly, what covenants for title will or will not produce this effect of estoppel. In most of the States it is held that the presence of a covenant of general warranty in a conveyance will not only estop the grantor and his heirs from setting up an after-acquired title, but will, by force of the covenant, have the effect of actually transferring the estate subsequently obtained, in the same manner as if it had origi- nally passed by the deed.^ The doctrine is thus stated in a late ' Cole V. Raymond, 9 Gray (Mass.), 217. "It is no answer to this " [that the subsequent estate passed by estoppel], said Shaw, C. J., who delivered the opinion, " that an action has been brought on the covenant of warranty and held to be barred by the statute of limitations ; Holden v. Fletcher, 6 Cush. (Mass.) 236. A covenant of warranty in a deed of conveyance of land, whilst it is a covenant real and runs with the land, and binds the grantor and his heir by its force as a covenant real, is also a personal covenant ; and if a breach occurs in the lifetime of the warrantor, an action will lie against him to recover damages ; or if a breach occurs before the final settlement of the estate, an action will lie against his personal representatives. When the covenant is thus treated as a personal contract, and sought to be enforced as such by personal action, it must be treated in all respects as a personal obligation ; the usual incidents to the con- duct of a personal action will be applied. But this will not affect the covenant real in its broader application." ^ Jackson ». Winslow, 9 Cowen (N. Y.), 18 ; Jackson u. Bradford, 4 Wend. (N. Y.) 622 ; Sparrow v. Kingman, 1 Comst. (N. Y.) 246 ; Rathbun v. Rathbun, 6 Barb. (N. Y.) 107 ; Hoyt v. Dimon, 5 Day (Conn.), 479 ; Dudley v. Cadwell, 19 Conn. 226 ; Lawry v. Williams, 13 Me. 281 ; Baxter v. Bradbury, 20 id. 260 ; Pike V. Galvin, 29 id. 183 ; Williams v. Thurlow, 31 id. 395 ; Kimball v. Blais- dell, 5 N. H. 533 ; Wark v. Willard, 13 id. 389; Thorndike v. Norris, 4 Foster (N. H.) , 454 ; Jewell v. Porter, 11 id. 39 ; Kimball v. Schoff, 40 N. H. 190 ; Middlebury College v. Cheney, 1 Vt. 349 ; Blake v. Tucker, 12 id. 44 ; Somes B. Skinner, 3 Pick. (Mass.) 52 ; Comstock v. Smith, 13 id. 116 ; Ruggles v. Barton, 13 Gray (Mass.), 506; Moore v. Rake, 2 Dutch. (N. J.) 674; Davis v. Keller, 5 Rich. Eq. (S. C.) 434 ; Massie v. Sebastian, 4 Bibb (Ky.), 436 ; Logan V. Steele, 4 Monr. (Ky.) 433 ; Dickerson v. Talbot, 14 B. Mon. (Ky.) 65 ; Rigg V. Cook, 4 Gilm. (111.) 348; Jones v. King, 25 III. 384; Gochenour v. Mowry, 33 id. 333 f Thomas v. Stickle, 32 Iowa, 72 ; Kennedy v. McCartney, 4 Porter (Ala.), 141; Wellborn v. Finley, 7 Jones (N. C), 228; the Pennsylvania cases are noticed infra, p. 430. In Foss v. Strachn, 42 N. H. 40, it was held that the mortgagor of an estate of homestead, who had minor children living at the time of BY WAY OP ESTOPPEL OE REBUTTER. 405 case : " It is a well-settled principle of the common law, that if one conveys lands or other real estate, with a covenant of general warranty against all lawful claims and demands, he cannot be allowed to set up, against his grantee or those claiming under him, the mortgage, was estopped by the covenants of warranty therein contained from claiming any estate in the premises conveyed, and in Strachn v. Foss, id. 43, the minor children were also held to be estopped during the lifetime of their father. In both of these cases the mortgage was given to secure a debt which existed before the homestead _right accrued, but this the court considered as immaterial. The contrary has, however, been since decided in Doyle v. Coburn, 6 Allen (Mass.), 71. The conclusion to which these cases tend was thus stated by Walworth, Ch., in Bank of Utica v. Mersereau, 3 Barb. Ch. (N. Y.) ,567 : " By the common law, if a grantor who had no interest, or only a defeasible interest in the premises granted, conveyed the premises with warranty, and after- wards obtained an absolute title to the property, such title immediately became vested in the grantee or his heirs or assigns, by estoppel; Co. Litt. 265 a. And if the grantor, or any one claiming title from him subsequent to such grant, sought to recover the premises by virtue of such after-acquired title, the original grantee or his heirs or assigns, by virtue of the warranty which ran with the title to the land, might plead such warranty, by way of rebutter or estoppel, as an absolute bar to the claim ; Co. Litt. 365 a ; Termes de la Ley, tit. Guaranty, Toml. Law Diet. art. Rebutter. This principle has been applied to all suits brought by persons bound by the warranty or estoppel, against the grantee or his heirs or assigns, so as to give the grantee and those claiming under him the same right to the premises as if the subsequently acquired title or interest therein had been actually vested in the grantor at the time of the original con- veyance from him with warranty, where the covenant of warranty was in full force at the time when such subsequent title was acquired by the grantor ; Jack- son V. Wright, 14 Johns. 193 ; Brown v. M'Cormick, 6 Watts, 64; Comstock v. Smith, 13 Pick. 116. And where an estoppel runs with the land, it operates upon the title, so as actually to alter the interest in it, in the hands of the heir or assigns of the person bound by the estoppel as well as in the hands of such person himself. Thus, if a man by deed indented make a lease of land, reserv- ing rent, which implies a warranty on the part of the lessor, and. the landlord has no interest in the land at the time of the execution of the lease, if he after- wards purchases the land, and then sells it to a stranger, the latter will hold it subject to the lease ; and coming in as the assignee, or grantee, of the person who made the lease, will be estopped from showing that the lessor had no interest in the land at the time he made such lease ; 1 Co. Litt. (19th Lond. ed.) 47, note 11 ; 7 Bac. Abr. Warranty, L. ; Bull v. Wiott, 1 Roll. Abr. 868 ; Somes V. Skinner, 3 Pick. 52 ; Trevivan v. Lawrence, 5 Modern, 258. For as a cove- nant of warranty runs with the lands, so as to give the heirs and assigns of the grantee the benefit of the estoppel as against the warrantor, it runs with the subsequently acquired interest of the warrantor, in the hands of the heirs and assigns of the latter, so as to bind that interest by the estoppel, as against any person claiming the same under him in the post." 406 THE OPERATION OF COVENANTS FOB TITLE any title he himself may subsequently acquire from another by purchase or otherwise. Such new title will enure by way of estoppel to the use and benefit of his grantee, his heirs or assigns." ^ There are, however, some qualifications to this doctrine. Thus, it seems that the warranty implied from a partition^ will not have the same operation as the express covenant in passing an after-acquired title.^ Nor will this result be caused when there are ' Jones V. King, 25 111. 384. = Infra, Ch. XII. ' In Rector v. Waugh, 17 Mo. 13, the application of the doctrine of estoppel to cases of warranty in a partition was said to be "very harsh in its operation. A number of proprietors 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 them- selves, and mutually convey with warranty. The entire title to the land, which is the subject of partition, afterwards fails. If the matter ended here, it would not be maintained that any one of the proprietors had a cause of action against the others, as what he recovered on his warranty he in turn would be compelled to refund to him from whom he had recovered on the warranty he had given. The different warranties would compensate each other, and it would be useless to sue, as each party in the end would be in the situation in which he was before suit was brought. The parties would be all even, and there would be no obliga- tion in law or morality resting on one to indemnify another. After the failure of the first title, one or more of the proprietors acquire a new and distinct title to the land on which the town was laid oiF, and a former proprietor, who has neither contributed nor offered to contribute any thing towards the acquisition of the new title, lays claim to all the lots conveyed to him by the deed of partition. The common law implied no warranty when partition was made between joiflt tenants and tenants in common. Indeed, by the common law, partition was not compellable among them. The warranty was only implied on partition among coparceners; and only extended to the land which was the subject of the parti- tion. The doctrine which makes an outstanding 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, 6 Johns. Ch. 388." The case itself was decided on the ground that the conveyance having omitted the word heirs, a, life-estate only passed to the grantee, and that the warranty was only coextensive with the estate to which it was annexed (see infra, p. 415 n. 3), the court saying, " We feel no reluctance in answering a technical action with a technical objection." In Woodbridge v. Banning, 14 Ohio St. 328, a devisee instituted proceedings to establish the will of the testator. Pending these, a partition was had between all the heirs-at-law of the testator, of whom the devisee was one, and it was held that, when the will was finally established, he was not estopped by the partition from claiming as devisee. The case, how- ever, was decided without reference to the warranty implied from partition, as this doctrine, escaped the attention of the court, " had it been otherwise, the reasons given for the decision would probably have been modified, but the deci- BY WAY OP ESTOPPEL OR REBUTTEB. 407 mutual estoppels, for ". estoppel against estoppel doth put the matter at large." i So it has been said in Alabama that the general rule only applies where the vendor had no valid title at the time of exe- cuting the deed, and not where he is inhibited from selling, by the letter, spirit or policy of a legislative act.^ And it was held in a later case in the same State that a covinous deed from father to son, with warranty, would not pass to the son the after-acquired title by estoppel, as against the creditors of the father.^ In Illinois and Wisconsin, the covenant for further assurance, when the only covenant in the deed, has been considered as effective for the purpose of estoppel as tlie covenant of warranty,* but in Missouri and Minnesota it has been held that a covenant for fur- sion would have been the same ; " Walker v. Hall, 15 Ohio St. 363. In the latter case, lands of a husband were sold at sheriff's sale, and finally became vested in the wife's father, and a partition being had between the devisees of the latter, to which the wife was a party, it was held that she was not thereby estopped, on the death of her husband, from claiming her dower in the lands. See the opinion of the court, infra. Oh. XII. ' Co. Litt. 352 6 (I:) ; Wheelock v. Henshaw, 19 Pick. (Mass.) 345 ; Oar- penter-w. Thompson, 3 N. H. 204; Kimball v. SchofF, 40 id. 190; Brown v. Staples, 28 Me. 503. In Hobbs v. King, 2 Met. (Ky.) 140, this doctrine was sought to be applied to a case in which A and his wife conveyed to B, who reconveyed to them, and they again conveyed to 0, all the deeds containing covenants of general warranty. was evicted by paramount title, and sued B upon the covenant of warranty contained in the deed of the latter to A and wife. But the court held that while the wife of A, being a married woman, was not liable on the covenants in the deed to B, yet as she had by statute no power " to convey and pass over her estate," the benefit of the covenants in the reconvey- ance by B passed at once to her grantee, and the estoppels, therefore, were not mutual. ° Kennedy ». M'Cartney, 4 Porter (Ala.), 158 ; see as to this, supra, p. 69. 3 Stokes V. Jones, 21 Ala. 738 (and see s. c. 18 id. 734). * Bennett v. Waller, 23 111. 183 ; Pierce v. Milwaukee R. R., 24 Wis. 553. In the former case the court say, " If the deed be but a quitclaim deed, it contains a covenant for further assurances ; under this covenant a subsequent title enures as well as under a covenant of warranty. The reason why a sub- sequently acquired title is held to pass by a deed containing covenants of war- ranty, is, that it effectuates the real intent of the parties which was to convey the true and real title to the land, and to avoid circuity of action and further liti- gation. It is a principle of equitable jurisprudence adopted by the courts of law, and by them engrafted into the common law itself, and has been sanctioned by our statute. The same reasoning applies in the same terms and with equal force where the deed contains a deed [covenant] for further assurances as where it contains a covenant of warranty." 408 THE OPERATION OP COVENANTS FOB TITLE ther assurance merely creates an equity in favor of the grantee, which is enforceable as to the after-acquired title against the grantor or his heirs. ^ In New Hampshire and Mississippi, it has been decided that when the covenants are those of good right to convey and for quiet enjoyment, a title subsequently acquired will pass ; ^ and in a recent case in the Supreme Court of the United States, where it would seem that the covenants were for seisin and of good right to convey, the court announced the same doctrine, though the point was not directly decided.^ The cases in the New England States, which hold that no estoppel ' Chauvin v. Wagner, 18 Mo. 531 ; Hope v. Stone, 10 Minn. 141. See also Smith V. Baker, 1 Younge & Coll. Ch. 223, and infra, p. 432 et seq. " Foss V. Strachn, 42 N. H. 40 ; "Wightman v. Reynolds, 24 Miss. 675. In the latter case Wightman and Anderson, as trustees of the town of Aberdeen, con- veyed the premises in question to Gholson, with the following covenants : ' ' And the said trustees, parties of the first part, for themselves and their successors, covenant with the party of the second part that they have full right to convey said premises by virtue of a deed made to us by Robert Gordon and James Davis, and further, that the said premises are not, nor shall be embarrassed by any acts of our own.'' " By this covenant,'' said Fisher, J., who delivered the opinion, " Wightman not only admitted that he had a good title to the premises at the date of the deed, but he thereby precluded himself from acquiring any title in future which could, in any manner, embarrass the title conveyed, or the rights of his vendoe under the same. . . . Wightman, whose title or right of possession is now set up in the defence, could not, after his deed, acquire any right whatever from any third party ; he could in future only become interested in the lots by contracting with Gholson, his vendee, or with a person deriving title from Gholson. A title acquired from any other source would give him (Wightman) no rights whatever in the premises ; but it would only enable him to perform in the true spirit the covenant in his deed, and such title would enure to the benefit of his vendee." It will be observed that the conveyance was made by the plaintiff as trustee, and the subsequent title was acquired in his own right, supra, p. 399, but the case was decided without reference to this point. ' Irvine v. Irvine, 9 Wall. (U. S.) 618. " It is a general rule," said Strong, J., in delivering the opinion, " that when one makes a deed of land, covenanting that he is the owner, and subsequently acquires an outstanding and adverse title, his new acquisition enures to the benefit of his grantee on the principle of estoppel. As the deed of the plaintiff in this case contained an assertion that he was well seised in fee, and had good right to sell and convey in fee, it would not be difficult, were it necessary, to show that in taking the patent he was in law acting for his grantee. But it is not necessary to rely upon that principle." BY WAT OP ESTOPPEL OE REBUTTER. 409 will be created by the covenants for seisin and of good right to convey, when those covenants are satisfied by the transfer of a tortious seisin, have already been referred to.^ It has, as we have seen,^ been decided in Maine that the covenant of non-claim will create no estoppel, either when standing alone,^ ' Supra, p. 56 ; Allen v. Sayward, 5 Greenl. (Me.) 227. = Supra, p. 393. ' Pike I). Galvin, 29 Me. 185 (overruling Fairbanks v. Williamson, 7 Greenl. 97 ; see the dissenting opinion of Mr. Justice Wells, 30 Me. 539 ; and see Ham V. Ham, 14 id. 365, where Fairbanks v. Williamson was virtually denied) ; Partridge v. Patten, 83 id. 483; Loomis v. Pingree, 43 id. 314; Harriman u. Gray, 49 id. 688. Pike v. Galvin was a very striking illustration of the extent to which 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 articleti, 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 1826, Ward conveyed the premises, inter alia, to Dyer, who, in 1829, con- veyed them to Jellison. Jellison, in 1833, conveyed them to the landlord of the defendants. All these conveyances were on record. Jellison, and those claim- ing under him, had always been in possession, the plaintiff never having had the possession. Under these circumstances, the plaintiff claimed that, by virtue of the release with covenant of non-claim, from Jellison to himself, in 1823, the title acquired in 1829 enured to his benefit; but the court held (Wells, J., dis- senting) that, inasmuch as the release contained no covenant of warranty, but only a covenant of non-claim, the doctrine of estoppel could not apply. The covenant could not operate in favor of the plaintiff, it was said, " by way of estoppel, to prevent circuity of action, for he could maintain no action on that covenant. Nor could it so operate in any other mode, unless there had been found some allegation in the deed, by which the releasor had asserted some mat- ter to be true, which he must necessarily contradict, and deny to have been true, if he would claim to be the owner of the land. In such case he would have been estopped, because the law will not permit one who has, in such a solemn manner, admitted a matter to be true, to allege it to be false. ' This,' says Kent, ' is the reason and foundation of the doctrine of estoppels ; ' 4 Kent's Com. 261, note d, where he also says, ' a release or other deed, when the releasor or grantor has no right at the time, passes nothing, and will not carry a title subsequently acquired, unless it contains a clause of warranty ; and then it operates by way of estoppel and not otherwise.' The covenant of non-claim asserts nothing respecting the past or the present. It is only an engagement respecting future conduct." It is difficult, however, to imagine how a more solemn assertion could have been made than was contained in the covenant referred to, which was, " so that neither I, the said Jellison, nor my heirs, or any other person claiming from or under me or them, or in the name, right, and stead of me or them, shall, or will by any way or means, have, claim, or demand any right or title to the aforesaid premises or to any part or parcel thereof forever." The decision of the case 410 THE OPERATION OP COVENANTS FOR TITLE or joined with a covenant against incumbrances,^ but this con- struction has not been generally adopted, it being considered as synonymous with the covenant of warranty.^ Whether the statutory covenants implied from the words " grant, bargain and sell " will operate as an estoppel does not seem to be consistently settled. In Illinois, where those words are declared to be express covenants for seisin, against incumbrances and for quiet enjoyment,^ they are held to pass an after-acquired title ; * but in Missouri, where they are express covenants for seisin, against iu- was perfectly correct upon the facts, as, under the registry acts, Jellison's grantee in 1833 was not bound to search the record for conveyances by him prior to 1829, when Dyer had conveyed to him ; and the application of the doctrine of estoppel would have been opposed to the theory of these statutes. At the same time, it is difficult to support the authority of the case upon the principles so well settled in New England ; 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 approved. Wells, J., in his dissenting opinion (published in 30 Me. 539), adhered, however, to the law as adopted generally in the Northern States, and was of opinion that the plaintiff was entitled to recover. In the subsequent case of Curtis v. Curtis, 40 Me. 24, the facts were, however, much the same as those in Trull V. Eastman, 3 Met. 121. One of several sons released in his father's lifetime all his present and future claim in his estate, with a covenant that neither he nor any one through him should ever claim any right to the same, and it was held that this precluded him from bringing proceedings for partition after his father's death. In the later case of Loomis v. Pingree, 43 Me. 314, it was said that " the decision in Pike v. Galvin having been made more than nine years, whatever may be said on the one side or the other, the interest and peace of the community re- quire that we should abide by it.'' It is somewhat singular that in Pike v. Galvin neither the counsel nor the court should have noticed the decision in Jackson v. Bradford, 4 Wend. (N. Y.) 622, where the Supreme Court of New York had, in order to avoid an embarrassing 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 expectant heir conveyed property with a covenant of non-claim, and afterwards the estate which he had purported to convey devolved upon him and was levied upon and sold by a judgment creditor, and it was held that the estate passed to the sheriff's vendee, and not, by estoppel, to the prior grantee, as the covenant was not one on which an action would lie. ' Sweetser v. Lowell, 33 Me. 452 ; Partridge v. Patten, id. 483. ^ Trull V. Eastman, 3 Met. (Mass.) 121 ; Miller v. Ewing, 6 Cush. (Mass.) 34; and see supra, p. 216, n. 2. -' Rev. Stat. 1845, § 11, p. 104; Gen. Stat. 1869, p. 85. " U'Wolf D. Haydn, 24 111. 525; King v. Gilson, 32 id. 352. BY WAY OP ESTOPPEL OR EEBUTTEE. 411 cumbrances and for further assurance,^ it has been said that " these covenants do not operate as the ancient common-law warranty to transmit a subsequently acquired title to the covenantee."^ And this effect of transferring estates by estoppel has been given to other covenants than the technical covenants for title. Thus in Illinois, a covenant " that if at any time hereafter I shall acquire any further or additional title to the said lot of land, the same shall enure to [the grantees] in proportion to the interests hereby con- veyed," was held to pass the after-acquired title as against a subse- quent purchaser ; ^ and in Alabama, where an heir-at-law, who was sole devisee under his father's will, covenanted with his co-heirs that the property should be distributed as though his father had died intestate, it was held that not only was he estopped from claiming the premises, but, by force of the covenant, the land at once passed to the other heirs.* ' Rev. Stat. 1845, p. 221. Re-enacted in 1865, 1 Wagner's Stat. 279. = Chauvin v. Wagner, 18 Mo. 531 ; Gibson v. Chouteau, 39 id. 566. No rea- sons are given for this course of decision in either of these States. ' Phelps V. Kellogg, 15 111. 132. "This is an express covenant," said Treat, C. J., in delivering the opinion, "that any title which the grantor shall afterwards receive shall enure to and be vested in the grantees. It is a covenant running with the land, and binding on all persons deriving title through the grantor with notice of the deed. It concludes them from setting up title against the grantees and their assigns This deed was recorded long before the executrix of the grantor made the subsequent conveyance to Cole. The latter and those claiming under him had, therefore, full notice of the deed and the covenant in question, and are bound thereby." It will be observed that the court assumed that the subsequent purchaser was affected with notice of the prior deed, from the fact of its being on record prior to the conveyance to him. It is, however, conceived that if, as is almost univer- sally held to be the law, a purchaser is not bound to search for conveyances by his grantor before the commencement of the latter's title, such a prior recorded deed would not be notice in the proper application of that term. There appears, however, in this case to have been proof of possession by the plaintiffs, which would probably deprive the subsequent grantee of the protection afforded by the recording acts; supra, p. 428, n. 2. * Bean v. Welsh, 17 Ala. 771. "The legal effect of this agreement," said the court, ' ' was to vest in the heirs of the testator the same title they would have taken had he died intestate as to the lands devised to the devisee, for we think the principle is well settled that an estoppel will not only bar a right or title, but will pass one to him in whose favor the estoppel works ; " see infra, p. 423, n., for the remainder of the opinion. 412 THE OPERATION OP COVENANTS FOR TITLE From this review of the numerous cases on this subject it will appear that they by no means consistently agree, either as to the grounds upon which they rest the estoppel,^ or as to the covenants which will, or will not, produce the effect of estoppel.^ And when the application of the doctrine itself is or may be in many cases fraught with such important practical consequences, we are bound to trace the doctrine to its source, for it is not less true in law than in logic that if we start with unsound premises and reason logically, we must arrive at unsound conclusions, and altliough from its nature law is not, and can never be, one of the exact sciences, still its greatest triumph — that which has earned for it tlie title of " the perfection of reason " — has been that its principles, logically ap- plied, have never for any enduring space of time been suffered to work injustice in the daily affairs of life. It is believed, and so indeed most of the authorities admit, that the doctrine which has been adopted in giving to the covenants for title all the high operation of an estoppel in passing an after-acquired estate by mere operation of law, and connecting them with the prin- ciple of preventing circuity of action, has arisen from a peculiar view wliich has been taken of a single section of Littleton, and the com- mentary upon it of Coke. The passages referred to are these : In sec- tion 446 of Littleton's treatise, he says," No right passeth by a release but the right which the releasor hath at the time of the release made. For if there be father and son, and the father be disseised, and the son (living his father) releaseth by his deed to the disseisor all the right whicli 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 disseisor, for that he had no right in his father's life, but the right descended to him after the release made by the death of his father ; " to which Coke adds, " if there be a warranty annexed to the release, then the son shall be barred, for albeit the release cannot bar the right ' That is to say, many cases hold that the doctrine rests purely on the ground of preventing circuity of action, while there are, as we have seen, at least four classes of cases which enforce the estoppel where there is no right of action at all, and hence, of course, no inducement to prevent circuity of action. ' That is, many of the cases deem that they follow the common law as to war- ranty, when they apply the doctrine solely to a covenant of warranty, while, recently, nearly as large a class apply it in the case of the other covenants for title. BT WAT OP ESTOPPEL OE REBUTTER. 413 for the cause aforesaid, yet the warranty may rebut and bar him and his heirs of a future right which was not in him at that time, and the reason (which is in all cases to be sought out) wherefore a warranty, being a covenant real, should bar a future right, is /or avoiding a circuity of action^ which is not favored in law, as he that made the warranty should recover the land against the terre-tenant, and he, by force of the warranty, to have as much in value against the same person." ^ It will be observed that in the above passages, the word " estop- pel " is not employed.^ The doctrine seems not to be thought a branch of the law of estoppel, — the warranty operates by way of rebutter to avoid circuity of action, an effect far different from that of estoppel, for, although Coke, in another part of his Com- mentary,* speaks of rebutter as being " a kind of estoppel," yet, as has been said, this has reference merely to the ordinary and per- sonal effect of an estoppel, and not to its extraordinary effect of ac- tually passing an estate. For if the latter had really been the case, the whole system of feudal conveyances would have been deranged, and all distinctions between the common-law modes of assurance would have been conveniently confounded by the simple addition of a warranty. These passages in Littleton and Coke may perhaps be better under- stood by a single reference to one of the doctrines upon which war- ranty was based. It was one of the peculiar attributes of a warranty that it required an estate to support it.^ Such dn estate was created by a feoffment, a fine, or a common recovery, the solemnity of which was sucli as to create and pass an estate, whether rightfully or wrongfully,^ and therefore, as a penalty, if a tenant for life en- ' As to this, the four classes of cases already referred to (supra, p. 401, &c.) cannot claim to rest upon Coke as authority. 2 Co. Litt. 265 a.' ' The following sentence from Co. Litt. 352 a, is often quoted in connection •with them : " Privies in blood, as the heir, privies in estate, as 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 estoppel ; " but it is believed that no authority can be cited to show that a warranty, unaccompanied by a feoffment or fine, made by one who had no estate, to another who had no previous estate, possessed this quality of an estoppel. * Co. Litt. 352 h. " Seymor's case, 10 Coke, 96 ; Piatt v. Oliver, 3 McLean (C. C. U. S.), 39 ; Kercheval v. Triplett, 1 A. K. Marsh. (Ky.) 495. « Litt. § 599-611 ; Co. Litt. 387 a, 367 a. 414 THE OPERATION OP COVENANTS FOE TITLE feofTed another in fee, be forfeited his life-estate. To a feoffment, livery of seisin was necessary ; but livery of seisin could not be given unless the feoffor had the actual possession ; and when this was the case, the delivery of the possession (of which the charter of feoffment was merely the authentication) was an act of such notoriety as to pass an actual estate to the feoffee, — an estate of fee-simple if the feoffor so willed it.i Such an estate could support a warranty. The same doctrine applied to a fine, which was of equal solemnity and notoriety as a feoffment, and indeed always presupposed one, and which, moreover, divested all remainders and interests whatever, except those limited after estates tail, while as to common recoveries, their effect depended upon the fiction that the one who by reason thereof lost his estate was recom- pensed by a recovery in value under the voucher to warranty.^ 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, yet it was an estate subject to be divested by the lawful owner, and which was not assisted by the warranty, either by way of estoppel or otherwise ; nor, in fact, had the warranty any operation whatever when the pos- session was wrongfully obtained, it being an inflexible rule that a warranty commencing by disseisin, and made for the purpose of giving effect to that disseisin, was void.^ ' ' ' The formal delivery of the seisin or feudal possession which always took place in a feoffment, rendered it till recently an assurance of great power ; so that if a person should have made a feoffment to another of an estate in fee-simple, or of any other estate, not warranted by his own interest in the lands, such a feoffment would have operated by wrong, as it is said, and would have conferred upon the feoffee the whole estate limited by the feoffment, along with the seisin actually delivered. Thus, if a tenant for his own life should have made a feoff- ment of the lands for an estate in fee-simple, the feoffee would not merely have acquired an estate for the life of the feoffor, but would have become seised of an estate in fee-simple by wrong; " Williams on Real Prop. (9th ed.) 141. " Taltarum's case. Year Book 12 Edw. IV. 19 ; Tudor's Lead. Cas. 605 (2d ed.) ; Pigott on Recoveries, 9 ; and see supra, p. 9 et seq. 3 " Warranty that commences by disseisin," says Littleton, § 698, " is in this manner ; as where there is father and son, and the son purchases the lands and letteth the same land to his father for term of years, and the father by his deed infeoffeth another in fee, and binds him and his heirs to warranty, and the father dies, whereby the warranty descends to the son, this warranty shall not bar the son, for notwithstanding this warranty, the son may well enter into the land, or BT WAT OP ESTOPPEL OB REBUTTER. 415 Now, neither a grant nor a release possessed the high qualities of a feoffment, a fine, or a common recovery.^ A grant, as ap- plied to corporeal" hereditaments, passed estates in reversion or remainder,^ while a release operated to relinquish an interest or claim to one already in possession. Neither of them possessed the power to create and transfer an actual estate where none previously existed. It was a familiar principle that a warranty could not enlarge an estate,^ and consequeptly it could not make valid that which would otherwise be invalid. Hence it follows that a grant or a release with warranty, of a defeasible estate or no estate at all to one having no previous interest therein, was as ineffectual as if there had been no warranty at all. Had this been otherwise, — had the effect of a warranty been to convey to a grantee or releasee any subsequently acquired estate, — there would have been an end of the common-law rule that a future estate could not be barred by a mere deed to a stranger. If, however, the grantee or releasee had a previous interest or estate in the land, the warranty would knit itself to that, and, having then something to support it, would rebut have an assize against the alienee if he will, because the warranty commenced by disseisin, for when the father, who had but an estate for a term of years, made a feoffment in fee, this was a disseisin to the son of the freehold which was then in the son. In the same manner it is, if the son letteth to the father the land to hold at will, and after the father maketh a feoffment with warranty. And as it is said of the father, so it may be said of every other ancestor. In the same manner is it, if tenant by elegit, tenant by statute merchant, or tenant by statute staple, make a feoffment in fee with warranty, this shall not bar the heir who ought to have the land, because such warranties commence by disseisin." See also Co. Litt. 367, 368. &c. ' See the celebrated argument of Mr. Knowler in Doe u. Whitehead, 2 Burr. 704. 2 Touchstone, 227, 228 ; 2 Prest. Conv. 209. ' Year Book, 44 Ass. 3.^ ; Co. Litt. 385 h ; Seymor's case, 10 Coke, 97 ; nor, consequently, can the modern covenants for title; Hurdw. Gushing, 7 Pick. (Mass.) 169; Corbin v. Healy, 20 id. .514; Kendall u. Brown, 7 Gray (Mass.), 212; Wright V. Herron, 5 Rich. Eq. (S. C.) 448 ; Patterson v. Moore, 15 Ark. 225 ; Hector V. Waugh, 17 Mo. 27 ; Den v. Forsythe. 3 Dev. (N. C.) 26 ; Den v. Young, 3 Ired. Law (N.C.) 379 ; Adams v. Ross, 1 Vroom (N.J.), 609 (reversing S. C. 4 Dutch. 160) ; and hence it has been held that a conveyance which for want of the word heirs passes only a life-estate, can neither be enlarged into a fee by the presence of a covenant of warranty to the grantee and his heirs, nor will such a covenant operate upon the latter by way of rebutter ; Register v. Rowell, 3 Jones' Law (N. C), 312. In Shaw v. Galbraith, 7 Barr (Pa.), Ill, this latter point was, however, differently considered ; see infra, p. 434. 416 THE OPERATION OP COVENANTS FOR TITLE the warrantor and his heirs in the same manner as if the support- ing estate had been created by a feoffment or fine. By the application of these doctrines to the cas6 put by Littleton, it will be seen that the release would of itself have had no opera- tion whatever, as he expressly says. The son having no estate, the release of course passed none. The reason why in the case put by Coke the warranty was effective, was that the releasee had an estate to which the warranty could attach itself, and that the ances- tor's estate had been put to a right of entry before the warranty was made. Had this not been so, — had the father's estate still continued in him, — the warranty would have been utterly void. Of the ten req- uisites usually mentioned as necessary to give effect to a warranty, there are two which are here essentially applicable. First, that the estate to be barred should have been divested and put to a right of entry before or at the time when the warranty was made ; and, sec- ondly, that the estate of the warrantee should have had a substantial existence before or at that time.^ Both of these requisites were pres- ent in the case referred to. The estate of the father had been di- vested and put to a right of entry before the warranty made by the son, and also the warrantee had a substantial interest or estate, though taking effect by disseisin only, at the time he received the warranty. ' "To every good warranty in deed that must bar and bind, these things are reqviisite. First, that the person that doth warrant be a person able. Second, that the warranty be made by deed. Third, that there be some estate to which the warranty is annexed that may support it. Fourth, that the estate to which the warranty is annexed be such an estate as is able to support it. Fifth, that the warranty descend upon him that is heir of the whole blood by the common law to him that made the warranty. Sixth, that he that is heir do continue to be so, and that neither the descent of the title nor the waiTanty be interrupted. Seventh, that the estate of freehold that is to be barred be put to a right of entry or action before or at the time of the warranty made, and that he to whom the warranty doth descend have then but a right to' the land, for a warranty will not bar any estate of freehold or inheritance in esse, in possession, reversion, or remainder, that is not displaced and put to a right before or at the time of the warranty made, though after and at the time of the descent of the warranty the estate of freehold or inheritance be displaced and divested. Eighth, that warranty take effect in the lifetime of the ancestor, and that he be bound by it, for the heir shall never be bound by an express warranty, but where the ancestor was bound by the same warranty. Ninth, that the heir claim in the same right that the ances- tor does. Tenth, that the heir that is to be barred by the warranty be of full age at the time of the fall of the warranty ; " Touchstone, 186 ; Seymor's case, 10 Coke, 96 6; Tudor's Lead. Cas. (2d ed.) 616. BY WAT OP ESTOPPEL OR REBUTTER. 417 If the warrantee had been a total stranger, he would have had no previous estate to which the warranty could be attached ; and as the release only passed what estate the releasor had (which was no estate at all), and did not, like a feoffment, create an actual estate, the warranty would have been wholly inoperative.^ If the mere addition of a warranty could have produced the effect supposed to have been attributed to it, — if estoppel and warranty had been as identical as they, are supposed to be, and if the interest, when it accrued, fed the warranty, all distinction, as has been already said, between the common-law modes of assurance would have been con- veniently overcome by the simple addition of a warranty, — future estates could have been transferred to a mere stranger without the notoriety of a feoffment, a fine or a recovery,^ and the introduc- tion of conveyances taking effect by virtue of the statute of Uses would have been needless.^ ' This line of argument was adopted by the counsel for the defendant in the case of Rector u. Waugh, 17 Mo. 13, as to which the court said, "The strong views presented by the counsel for the defendant are supported by a great weight of authority, but the reasoning on which they are founded has been insensibly undermined, and principles which stood out in bold relief when the feudal policy was the idol of the law have gradually lost their force.'' The court, however, decided the case on another ground against the estoppel ; see supra, p. 406, n. 3. ° So, to render effectual a covenant to stand seised to uses, it was necessary that the covenantor should have a vested estate ; and therefore a covenant to stand seised of land which the covenantor should afterwards purchase was void ; 2 Sanders on Uses, 83 ; Preston's note to the Touchstone, p. 165. " A man can- not by a covenant raise a use out of land which he hath not ; " Yelverton v. Yelverton, Cro. Eliz. 401 ; 8. c. Moore, 342 ; although at the present day a cove- nant to charge or dispose of lauds hereafter to be acquired will be enforced in equity; Wright v. Wright, 1 Ves. Sen. 409; Metcalfe v. Archbishop of York, 1 Mylne & Craig, 547 ; Lyde v. Mynn, 1 Mylne & Keen, 683 ; 8. c. 4 Simons, 505 ; Wellesley v. Wellesley, 4 Mylne & Craig, 579. The doctrine held by the English courts at the present day on the subject of estoppel will be found infra, p. 435. If it be argued in favor of the doctrine of estoppel as held in many parts of this country, that the effect of covenants for title is to raise a use in favor of the purchaser which the statute would at once execute, the answer is, that it was requisite to the execution of a use under the statute, that there should be an estate or seisin out of which the use was to arise, and therefore contingent uses, during the suspension of the contingency, could not be executed by the statute ; 1 Sanders on Uses, 231. 3 A bargain and sale with warranty by a tenant for life, would, according to this doctrine, have produced a discontinuance, — a result not properly attributable to such a mode of conveyance as a general rule ; Gilbert's Tenures, 119 ; Sey- mor's case, 10 Coke, 96; MoKee ». Pfout, 3 Dall. (Pa.) 486; Prest. Law Tracts, 27 418 THE OPERATION OP COVENANTS FOE TITLE It is not meant by these remarks to deny that the presence of a covenant for title may not properly operate as a personal rebutter, which will prevent the grantor and his heirs from getting possession of the laud when he or they subsequently acquire a title to it. Such a doctrine seems in its general application to be correct, but it is, with great deference, submitted, that it is not strictly a branch of the law of estoppel, in the absolute and technical sense in which that word has in some cases been used.^ Now, there are two grounds upon which most, if not all, of the cases which have been referred to can rest with entire accuracy. One is, that the covenants operate as a personal rebutter merely, and, for the purpose of avoiding circuity of action, prevent the grantor or his heirs from setting up the after-acquired estate, which equity would of course compel him or them to convey to the prior grantee.^ The other is, that the effect Of the covenants is as if a particular recital or averment had been introduced, and that the grantor was therefore estopped by his deed from denying its efficacy.^ Tract 2. In Jacocks v. Gilliam, 3 Murphey (ZST. C), 47 ; s. C. 4 Hawks (N. C), 311, it was held that a bargain and sale with warranty by a tenant in tail did not operate as a discontinuance, and in Pollock «. Spoidel, 17 Ohio St. 439, it was decided that such conveyance would not estop the subsequent donees in tail; supra, p. 211, n. 2. ' A class of cases is often quoted to support the connection between a cove- nant of warranty and estoppel. These are cases of leases where the lessor's sub- sequently acquired estate enures to the benefit of the lessee, and a subsequent purchaser takes the land subject to the lease ; Rawlyns' case, 4 Coke, 52 • Trevivan v. Lawrence, 1 Salk. 276 ; Weale v. Lower, PoUexfen, 66. But these cases proceed upon a different principle. In the first place, the absence or presence of a warranty formed no part of them, and we have no reason to sup- pose, as was suggested in Pelletreau v. Jackson, 11 Wend. (N. Y.) 119, that the decision in Rawlyns' case turned upon the implied covenant for quiet enjoyment. Secondly, the relation between the landlord and tenant is, in every degree, more peculiar than that of vendor and purchaser. There is always an understood con- tract between them that the lessor is conveying an estate which will support the lease, and there is room for the operation of estoppel in its highest function. ' Lewis V. Baird, 3 McLean (C. C. U. S.), 80; Henderson v. Overton, 2 Yerg. (Tenn.) 397; Chew u. Barnet, 11 Serg. & Rawle, 389; Reese v. Smith, 12 Mo. 351 ; Steiner v. Baughman, 2 Jones (Pa.), 108 ; Brown t>. Manter, 1 Fos- ter (N. H.), 528 ; Pierce v. Milwaukee R. R., 24 Wis. 554 ; see Butler v. Seward. 10 Allen (Mass.), 467; see also infra. ' Thus in Goodson v. Beacham, 24 Ga. 150, it was said, " Nims, when he made the deed to Beacham, had no title, but his deed was an attempt to convey the BY WAT OP ESTOPPEL OR REBUTTER. 419 Neither of these grounds, however, would give to the rebutter or to the estoppel the high efficacy of actually transferring tlie after- acquired estate. The practical difference between these two effects, — between the covenants for title operating as a rebutter, by placing the grantor and his heirs under a disability to claim the after-acquired estate, and 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 his heirs. It would at first sight appear to make little difference whether as between these parties, the after-acquired estate actually passes to the purchaser by direct operation of law, or whether the latter is secured in his possession from the fact that the grantor and his heirs are not allowed to claim it, — whether the purchaser has the valid title actually and finally vested in him, or whether the only person who has the better title is under a disability which pre- vents him from setting it up.i fee, and it was a deed with a warranty. This shows, first, that it was the inten- tion that the land, the whole interest in the land, should be conveyed to Beacham ; secondly, that Beacham had paid the purchase-money. Such being the intention, the consequence would be that if Nims should afterwards acquire the title, he would be bound 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 ; Taylor v. Debar, 2 Ch. Cas. 212 ; Wright v. Wright, 1 Ves. 409 ; Noel v. Bewley, 3 Simons, 403 ; Smith v. Baker, 1 Younge & Coll. Ch. 223 ; Jones v. Kearney, 1 Drury & War. 169, cited in Rawle on Covenants for Title, 428 ; " and see infra, p. 436. ' In Buckingham v. Hanna, 2 Ohio St. 11. 651, which was decided since these remarks were first written, this distinction was noticed, and the appli- cation of the doctrine of estoppel, to the extent claimed by some of the New England cases, would have been unjust in the extreme, and was properly limited by the court. One Ramey, who had no title whatever to certain land, mort- gaged it in 1830 to the plaintilF, and in 1839 the land was patented to him by the government. The equitable title to the land was in Eveland, who, in 1817, had conveyed if to the defendant. In 1841 Eveland filed a bill against Ramey, setting up his equitable ownership, and that the patent to the latter was made as trustee for him, and praying for a conveyance of the legal title, which, in 1842, was decreed to be made. These proceedings in equity were offered in evidence in an ejectment by the plaintiff (the mortgagee of Ramey) against the 420 THE OPERATION OF COVENANTS FOE TITLE The practical difference is, however, this : where by virtue of the estoppel supposed to be created by the covenants for title, the after- defendant (the grantee of Eveland), and were admitted by the court. " Upon this state of facts," said Ranney, J., who delivered the opinion in the Supreme Court, " it is claimed by the plaintiff's counsel that when Eamey became invested with the legal title in 1839, by patent from the government, it instantly passed to his grantees in the mortgage by force of the covenant of warranty, and that there was, consequently, no title remaining in Ramey upon which the decree sub- sequently made in favor of Eveland could operate. The legal title having passed to the mortgagee, could only be diverted in favor of paramount equity, in a proceeding to which they were parties, and by decree against them. Whether a conveyance 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 use it to the prejudice of his grant, is, in almost all cases, entirely immaterial, and therefore much looseness of expression is to be found in the language used in the adjudged cases which relate to the subject. Indeed, we think it is not very material in this case ; but as it has been particularly adverted to in the argument, we shall express our views upon it. "It is universally agreed that the subsequently acquired title enures to the benefit of the grantee by way of estoppel, and binds not only the grantor, but all persons claiming under or through him, and passes with the land to any and all persons holding under the grantee (citing Douglass v. Scott, 5 Ohio, 198), infra, p. 427. . . . The import of the language used in these cases is certainly unmistakable. It supposes the after-acquired title to pass from the grantor to his heirs or assigns, but still conclusively bound by the estoppel, creating a total dis- ability in their hands to use it to the prejudice of the former grant with warranty. Indeed , it seems very clear that the doctrine of estoppel could have no possible application in such an event, unless this were the case. If the title did not remain in the grantor, but immediately passed to the grantee, it would be im- possible that any interest or title could descend, upon the death of the grantor, to his heir, or pass by any subsequent deed to his assignee. If it did not, neither could have any title to assert, and consequently could not be said to be estopped from asserting what they had not ; since the very idea of an estoppel is a denial of the right of a party to assert the truth, or set up an interest or title he has, when it would conflict with his own previous acknowledgment or undertaking 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 is that it avoids circuity of action ; Jackson v. Waldron, 13 Wend. 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 value. This has been to this day no further changed than to allow a pecuniary equivalent to be awarded in place of lands. But for the application of this doctrine, the grantor might, with his subsequently acquired title, oust his grantee ; and the moment this was done the right of the grantee would be perfect to compel the grantor to restore him the same or other lands of equal value ; thus attain- ing in two suits precisely what is now attained by disabling the grantor in BY WAT OP ESTOPPEL OR REBUTTER. 421 acquired estate actually passes to and vests in the purcliaser by mere operation of law, it must necessarily relate back and take effect as if it had originally passed by the conveyance to him ; and hence in an action to recover damages for a breach of the covenant of warranty, a verdict must be ordered for the de- fendant; or if the action were for a breach of the covenant for seisin, though there might be a technical breach, yet the plaintiff would be entitled to nominal damages only ; i and thus if the first instance from using the after-acquired title to the prejudice of his grant. " But if the title passed from the grantor, as soon as it came to him, to his grantee, it is evident the former could not recover the possession, and the latter would have no right to recover on his covenant. The grantee would have the title, with perfect ability to depend upon it, and of course perfect ability to pre- vent a breach of the covenant, without the necessity of calling to his aid the doctrine of estoppel, and, indeed, without any possibility of applying it. The remedy afforded to the grantee in a court of equity is entirely inconsistent with the idea that the title passes. Sugden on Vendors, vol. iii. p. 430 (see supra, p. 199, and infra, p. 435), lays down the doctrine in that court thus : ' And if a man sell an estate to which he has no title, and after the conveyance acquire the title, he will be compelled to convey it to the purchaser.' How convey a title which the grantor no longer has i Or what necessity or propriety of decreeing a conveyance to a purchaser who already has the title in advance of making the decree ? . . . 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 counsel, is adopted. Whether the estoppel works upon the estate and binds an after-acquired title as between parties and privies, or immediately passes the title to the grantee, in ordinary cases, it is clear there is a limit to its operation which controls it in the present case, and deprives the lessors of the plaintiff of all benefit from the doctrine in either point of view. ... In this case the defendant claims by an equitable title paramount to Ramey, and long anterior to the date of the mortgage to the lessors of the plaintiff. When the legal title came to Ramey, he held it as a mere trustee for Eveland, and when it was taken from him by the decree, it went entirely unincumbered with any estoppel arising from the cove- nant in the mortgage. Indeed, if the legal title still remained in Ramey, or the lessors of the plaintiff, it is by no means certain that 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 opinion that the legal title conveyed to Ramey by patent from the government remained in him in trust for Eveland, until it was divested by the decree and transferred to him ; that the record was admis- sible to establish this fact ; and further, to show that Eveland obtained, claimed, and possessed the land by a right paramount to Ramey, and anterior to the mortgage, and he is, therefore, not prima facie estopped to assert the legal title thus derived by the covenant of warranty which Ramey made with the lessors of the plaintiff'' ' Thus in Baxter v. Bradbury, 20 Me. 260, where the grantee being in pos- 422 THE OPERATION OP COVENANTS FOR TITLE the land had diminished in price, the purchaser would not have the option either to retain it, or to offer to re-convey it and recover its session brought an action " on the covenant for seisin in a deed of warranty,' the court below having rejected evidence offered by the defendant to prove that after his 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, it enured to the plaintiff by estoppel, and the Supreme Court sustained this position, and held that the plaintiff, 'by taking a general covenant of warranty, not only assented to, but secured and made available to himself all the legal consequences resulting from that covenant, and that having before the commencement of the action acquired the seisin which it was the object of both covenants to secure, he could be entitled only to nominal damages. "If," said the court, "Whitney and Whitten were seised immediately upon the execution of their deeds, which were executed a few days after that upon which the plaintiff declares, their seisin at once enured and passed to him in virtue of the covenant of general warranty in his deed ; Somes V. Skinner, 3 Pick. 62. It has been insisted by the counsel for the plaintiff that this effect depends upon the election of the grantee, and that the plaintiff here would reject the title arising by estoppel. But we are aware of no legal principle which can sustain this position. In the last case cited the court says ' that the general principle to be deduced from all the authorities is that an instrument which legally creates an estoppel to a party undertaking to convey real estate, he having nothing in the estate at the time of the conveyance, but acquiring a title afterwards by descent or purchase, does in fact pass an interest and a title from the moment such estate comes to the grantor.' The plaintiff, by taking a general covenant of warranty, not only assented to, but secured and made avail- able to himself all the legal consequences resulting from that covenant. Having, therefore, under his deed, before the commencement of the action, acquired the seisin which it was the object of both covenants to secure, he could be entitled only to nominal damages, and in our judgment the evidence was legally ad- missible." So, in Reese v. Smith, 12 Mo. 344, it was said : " Where there is a covenant of seisin which is broken, and subsequently to the breach the covenantor acquires the title, if there be in the deed a covenant of general warranty, by virtue of which the covenantee will, by operation of law, be vested with the subsequently acquired title, the damages can be but nominal " (for the facts and the opinion of the court in this case, see supra, p. 267) ; McCarthy v. Leggett, 3 Hill (N. Y.), 134, cited supra, p. 266; Cornell v. Jackson, 3 Cush. (Mass.) 506, cited supra, p. 355, u. 2 (but see the more recent case of Blanchard v. Ellis, 1 Gray (Mass.), 199, supa. p. 277). So, in King v. Gilson, 32 111. 348, King conveyed certain lots to which he had no title, to Gilson, with covenants for seisin and of good right to convey, and afterwards, by several mesne conveyances, they became vested in Hillman, who, using Gilson's name, brought covenant against King. After suit brought, and before trial, the real owner of the lots conveyed them to King. In the court below, a verdict was rendered in favor of the plaintiff for the amount of the consideration-money, but this was reversed on appeal, and it was held that as BY WAT OP ESTOPPEL OB REBtTTTER, 423 consideration. Such a course of decision, as has been said in the title subsequently acquired by King immediately enured to the benefit of the plaintiff, the latter was entitled to nominal damages only. "The next question presented for consideration," said Walker, J., who delivered the opin- ion, " is, whether the perfecting of the title is a bar to a recovery or operates to mitigate the damages. . . . Had a suit been instituted by him [the plaintiff], and a recovery had, before the appellant procured the deed from Easly, the measure of damages would have been the purchase-money with interest. In such a case the grantee does not obtain what he purchased. But it seems to be a rule of general application that in all actions on contracts sounding in damages, and of this character is covenant, the plaintiff is entitled to recover damages only to the extent of the injury sustained. If circumstances exist which mitigate the injury, they must be considered in measuring the damages ; Leland v. Stone, 10 Mass. 459 ; Baxter v. Bradbury, 20 Me. 260. In the latter of these cases it appeared that the defendant, after suit was instituted upon the covenant, acquired the title, and it was held that the recovery could only be for nominal damages. And the oases of Cotton v. Ward, 3 Monr. 304; Keese v. Smith, 12 Mo. 344; and Cornell v. Jackson, 3 Cush. 606, fully sustain this doctrine. The exception to the general rule that the plaintiff is entitled to recover all the damages he has apparently sustained at the commencement of the suit, seems to be based upon the fact that when the covenant is taken, the covenantee pays his money with the design of acquiring title to the premises and not to make a loan, and when he has obtained what he purchased, he has sustained no injury. Technically there has been a breach of the covenant for which the law gives a right of recovery, but, having the title for which he contracted, he can only recover nominal dam- ages. . . . Whilst the grantor cannot satisfy the breach of his covenants of seisin with other lands, he may substantially discharge the breach by acquiring the title at any time before the damages are assessed ; " s. p. Burke v. Beveridge, 15 Minn. 208, cited supra, p. 266. " If, indeed," said the court, in Bean B.Welsh, 17 Ala. 773, " an estoppel could not operate as a conveyance, or as a medium through which the title would pass to him in whose favor the estoppel works, we might frequently lock up the title in him and his heirs against whom the estoppel operated ; and the party for whose benefit it was intended might find himself without title, and unable to recover from a mere intruder ; for if the title to the after-acquired estate did not pass to the grantee by means of the estoppel, but it only precluded the grantor from asserting an after-acquired title, it would be difficult to see how he could recover in ejectment from one who had no title. To show title in another would not enable him to recover, and he, having none, could not maintain the suit. To give, therefore, the full effect to an estoppel, it is clear that it must frequently operate to pass the title." The mistake, how- ever, seems to be in supposing that the purchaser's remedy is necessarily at law instead of being in a court of equity, or, as was said by Judge Hare, in his note to Duchess of Kingston's case, 2 Smith's Leading Cases: "There can be no doubt of the validity of the conveyances in question in these cases, in equity, nor perhaps that the grantors were estopped from disputing them at law, but it would seem very doubtful whether they should have been regarded as transfer- ring the legal title itself, or as doing any thing more than entitling the grantees to come into equity for a conveyance." 424 THE OPERATION OP COVENANTS FOE TITLE another part of this treatise,^ obviously fastens upon the purchaser the subsequently-acquired title nolens volens, depriving him of the option whether to accept it, or to fall back upon the covenants ; in other words, it has virtually the same effect as an injunction restraining him from proceeding at law upon the covenants.^ The injustice of such a result seems, however, sufficiently obvious, and in a case in New York it was held, with much force of argu- ment, that equity would not, under such circumstances, interfere at the instance of the party bound by the covenant,^ and the author- ity of this decision has been several times recognized and followed. ' See supra, p. 267. ' And see the case of Reese v. Smith, 12 Mo. 344, supra, p. 267, -where the purchaser was actually compelled to take the after-acquired title, and enjoined from proceeding at law on his covenants. ' Tucker v. Clarke, 2 Sandf. Ch. (IST. Y.) 96. The purchaser having refused to receive a valid title which his vendors tendered to him, together with the costs of an action which he had instituted for a breach of his covenants, the vendors filed a bill to compel him to' accept this title, but it was dismissed by Sandford, V. C, who said, " The complainants do not ask the court to compel a specific performance of an open agreement. They seek to compel the defendant to give up his claims under a deed executed seven years before the bill was filed. The executed contract was, that the complainants were seised of these lots, and, if they are not, that they should repay the consideration-money. This is sought to be reconsidered and turned into a contract, by which, if it should ever turn out that they were not seised, they might either repay the consideration or pro- cure a good title to be conveyed. It would have been a little more plausible if there were a semblance of mutuality about it, so that the defendants might have caused them to procure a good title on discovering the defect. But there is no pretence that the defendant had any such equity. The complainants' ground amounts to this : If the lots had become worth two or three times the price which the defendant paid for them, then they could set up the outstanding title, deprive the defendant of his speculation, and throw him upon the covenants in his deed, which would restore him to the consideration paid. If, on the other hand, the lots should depreciate very much, the complainants would procure the outstanding title for him, and retain the price which he paid. There is no equity or fairness in this, and the court cannot grant the relief prayed by the bill with- out first making such a contract for the parties ; a contract which they never did make, and, 1 presume, never would have made, if any failure of title had been supposed probable when the conveyance was executed." And to the same effect was the decision in Bingham v. Weiderwax, 1 Comst. (N. Y.) 513 ; see supra, p. 275. In Woods ii. North, 6 Humph. (Tenn.) 310, an executor sold with a covenant that, as executor, he was seised, and had good right to convey property which, in fact, belonged to himself in common with other devisees of the testator, and which the will gave him no authority to sell. The purchaser filed a bill to rescind the contract on the ground of imposition, and pending BY WAT OF ESTOPPEL OR REBUTTER. 425 For if the acquisition of the after-acquired estate operates merely as a personal rebutter, giving to the covenantee a right to come into equity for its conveyance to him,^ he would have the option of either doing this, or of recovering damages on his covenant, and the covenantor could not compel him to do the one in preference to the other. This point has been directly presented in several recent cases in New York, Massachusetts, Indiana and Wisconsin, and it has been decided, upon great apparent soundness of principle, that when the grantee had been actually evicted, the after-acquired title cannot, without the consent of the latter, be made to enure to him by way of estoppel, either to defeat his right to a recovery in an action on the covenants for title,^ or to reduce the measure of his this, the premises were sold by the devisees, and purchased by the defendant, who then tendered a deed in his individual capacity. But the court held, that this offer presented no good reason for denying the relief prayed by the bill. " If the complainant were compelled to take this title, the price he agreed to give for the land would enure to the individual benefit of the defendant. He has purchased the land, and is bound to his co-heirs only for the price he bid at the sale, under the decree before mentioned, while he would get all the benefit of the exorbitant price, it may be, which the complainant was to give. But if a party fraudulently sell and convey an estate to which there was no title, the vendee who comes into equity to rescind the contract will not be compelled to take an after-acquired title from the vendor." (This case is not affected by Blackmore v. Shelby, 8 Humph. (Tenn.) 439, for there the contract had not been consummated by execution of the deed ; and it is familiar that the vendee will be compelled to take the title, if acquired by his vendor at any time before final decree.) It may be remarked of Woods v. North that the presence of fraud in the case was only material in giving the plaintiff a standing in equity to rescind the contract, and the principle of the case applies equally in any case where, from other circumstances, the plaintiff would be entitled to relief in equity, or to damages on his covenants in a court of law. ' Infra, Ch. XV. 2 Blanchard v. Ellis, 1 Gray (Mass.), 193; see the opinion of the court, supra, p. 277 et seq. ; Bingham v. Weiderwax, 1 Comst. (N. Y.) 509, for see the facts and opinion of the court, supra, p. 275. Burton ». Reeds, 20 Ind. 87. Bur- ton conveyed certain lands to Reeds, with covenants for title, on which the lat- ter, being evicted by paramount title, brought suit. After action brought, the paramount title was conveyed to Burton, who pleaded this fact in bar. But the court said, " The appellant says that having bought in and invested himself with the paramount title, the plaintiff is not entitled to more than nominal damages. The general doctrine is, ' that A, having no title, makes a deed to B with full covenants of warranty, and A subsequently acquires title by descent or purchase, he is estopped by his covenant as against his grantee, to deny that he had a good title at the time of the grant, and such new title is said to enure to the grantee.' It is conceded that this rule applies where the action is upon the covenant for 426 THE OPERATION OF COVENANTS FOB TITLE damages. In other words, the option, when there be one, should be the option of the party entitled to the benefit of the covenants, rather than the option of the party bound by them. seisin, and where the covenantee is in possession, but contended, that where the grantor purchases the paramount title after the eviction of his grantee, such title does not enure to his grantee by way of estoppel, without his consent, so as to defeat his right to maintain an action upon the covenants of warranty, and the quiet enjoyment, and to recover the consideration paid by him and interest. This view of the rule, and the exception to it, seems to accord with the weight of authority," and the court, citing Blanchard v. Ellis, supra, continued, " This decision is sustained by various adjudicated cases, and enunciates a principle which seems to be clearly right; Tucker «.. Clarke, 2 Sandf. Ch. (N. Y.) 96; Bingham v. Widerwax, 1 Comst. 513. If, then, we are correct in our conclusion that the plaintiff in this case was evicted from the premises, such eviction evi- dently occurred prior to the institution of this suit, and, in sequence, the title acquired by the defendant after its commencement cannot, in the absence of the plaintiff's assent, be allowed to enure to him, either in bar of the action or in mitigation of damages." In Noonan v. Ilsley, 21 Wis. 139, the plaintiff, having no title to certain lots, conveyed them, in 1856, to the defendant, who gave his due-bill for a portion of the purchase-money of the same. In April, 1862, the plaintiff sued on the due-bill, and the defendant, by way of defence and counter claim, alleged a breach of the plaintiff's covenant for seisin. In November, 1862, after the action had been commenced, the plaintiff acquired the good title to the lot, which he claimed at once enured to the defendant and deprived him of this defence, and so the court below charged, but this was reversed in the Supreme Court. "The defendant," said Downer, J., who delivered the opinion, "was entitled to a fair indemnity for all the damages he had sustained. All tBe rules on this subject have been framed with a view to give him such damages as will indemnify him. These rules are in substance as follows : If there is an entire failure of title, and the vendee has had no actual possession, he is entitled to recover the purchase-money and interest from the date of the deed. If the title to a part of the lands only fails, he is entitled to recover the purchase-money and interest of that part. If the title fails, and he has had actual possession of the land, he is entitled to recover the purchase-money and interest thereon for such length of time as he himself may be liable for the use and occupation of the premises to the rightful owner, which is in most of the States not exceeding six years preceding the rendition of the judgment. If he has had possession until the statute of limitations has closed upon all adverse claims, and the title is thus perfected in him, he can recover only nominal damages ; and if there is a cove- nant of warranty in the deed to him, and his grantor, before suit brought, and probably before judgment in the action for breach of the covenant of seisin acquires the title, it enures to his benefit, and if he has had possession and is not liable to any one for the use of the premises, the damages are nominal. There- fore, if the defendant or his vendee had had actual possession of the premises from the date of the deed of the plaintiff to him, he would still have the right to BY WAT OP ESTOPPEL OR REBUTTER. 427 Secondly, as between the purchaser and a subsequent purchaser from the grantor. The practical results of this doctrine of estop- pel, when applied as between the purchaser and the grantor, yield in importance to those which arise in the connection we are now to consider. It has been already said that the class of cases which have been cited hold that the estoppel created by the covenants operates actually to transfer the after-acquired title, by mere oper- ation of law, and even against the consent of the party entitled to the benefit of the covenants. " The obligation created by estoppel," it has been said, " not only binds the party making it, but all per- sons 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 subjected to all the conse- quences which accrue to him. It adheres to the land, is transmitted with the estate, it becomes a muniment of title, and all who after- wards acquire the title take it subject to the burden which the existence of the fact imposes on it." ^ Such a course of decision, if logically followed, leads to the result that the after-acquired title vests in the grantee, not only as against the grantor and his heirs, recover damages equal to interest on the consideration-money of the two lots for six years preceding the delivery of the deed to the plaintiff, if tlie trial had taken place at or about the date of the deed ; for the reason that the occupant would be liable to the plaintiff's vendor. It can hardly be contended that the damages should be less when the deed of the plaintiff gave the defendant no right of possession and was followed by no actual possession. T^e true rule of damages in such case must be either the value of the use of the premises for the time the grantee had neither possession nor the right of possession, or interest on the consideration-money for that time, and we think the latter. Such damages the instruction precluded the defendant from recovering, and for that reason the judgment must be reversed ; " and the court cited Tucker v. Clarke with approbation, distinguished Baxter v. Bradbury, and disapproved of Reese V. Smith, supra, p. 267 et seq. » Douglass V. Scott, 5 Ohio, 198 ; Wark v. Willard, 13 ST. H. 389 ; White v. Patten,^4 Pick. 324 ; Dudley v. Cadwell, 19 Conn. 226 ; Pike v. Galvin, 29 Me. 186 ; Bank of Utica u. Mersereau, 3 Barb. Ch. (N. Y.) 567 ; Massie w. Sebastian, 4 Bibb (Ky.), 436. In Dickerson v. Talbot, 14 B. Men. (Ky.) 64, it was said that the estoppel passed not the equitable but the legal title to the prior grantee ; and in the case of Jarvis v. Aikens, 25 Vt. 635, it was said: " The estoppel, when it runs with the land, operates upon the title, so as actually to alter the interest in it in the hands of the heir or assigns of the person bound by the estoppel, as well as in the hands of such person himself; " see this case infra, p. 428, n. 2. 428 THE OPERATION OF COVENANTS FOB TITLE but as against a subsequent purchaser from the latter of the after- acquired title.i It need hardly be repeated that in this application of the doctrine of estoppel it cannot be held to rest on the preventing circuity of action, as the assignee of the covenantor could never be liable to the prior covenantee, or to any one claiming under him. And the result itself, when applied to the case of a bona fide pur- chaser without notice, cannot harmonize with the spirit of the registry acts in force in this country, and leads to the position, which cannot certainly be considered as tenable, that a purchaser must search the registry of deeds, not only from the time when his grantor acquired title, but also for a series of years before that time, in order to discover whether he had previously made any convey- ance (though without title) , to any other person ; for if he have, that person will, according to this doctrine, hold the estate as against this purchaser ; and if the property has passed through several hands, a similar search must be made with respect to every one through whose hands the title has thus passed.^ ' In the case of the Great Falls Co. v. Worster, 15 N. H. 452, it seems to have been taken for granted that this doctrine would apply only to the case of a purchaser with notice, but in other cases the rule has been enforced even against purchasers without notice of the prior conveyance. See the ensuing note. ^ This argument was pressed upon the Supreme Court of Massachusetts in White V. Patten, 24 Pick. 324, and disregarded. The facts of that case afford a striking illustration of the result referred to in the text. In 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 in February, 1834. In July of that year, Perry, the father-in-law of Thayer, and the real owner of the land, conveyed it to the latter, who the next day mortgaged it to Patten. This mortgage, and the deed from Perry to Thayer, were recorded on the 2d of August following. Thayer continued in possession until 1835. when he was dispossessed by Patten, under an execution upon a judgment obtained against him. A writ of entry was then brought by White against Patten. Under these circumstances. Patten's counsel urged, with great force, that under the registry acts Patten had done enough tb search the record back to the time when Thayer acquired title, that is, from July, 1834 ; and that any search before that time should properly be directed to conveyances or mortgages given by Perry, the real owner, and not by Thayer, who had no shadow of title. Never- theless, the court held, upon the authority of cases arising under leases (see them cited and explained, infra, p. 418, ra. 1) , that the estoppel created by the mortgage in 1833 bound the subsequent mortgagee of the after-acquired title, and the case was decided in favor of the demandant. Such an application of the doc- BT WAY OF ESTOPPEL OR REBUTTER. 429 Such a doctrine, thus carried to its logical results, cannot stand the test of experience,^ and it is not to be wondered at that, in re- cent cases decided since these suggestions were first made, courts have distinctly held that as against a subsequent purchaser without notice the after-acquired title does not enure to a prior grantee.^ trine of estoppel obviously strikes a decisive blow at the protection intended to be afforded by our registry acts. It is, moreover, curious that the case was perhaps rightly decided upon the facts, but it certainly was not decided upon that point, viz., Thayer, the mort- gagor, was in possession, which, perhaps, might have been enough to put the subsequent mortgagee upon inquiry as to the nature of his title, and thus de- prive him of the protection otherwise afforded by the registry acts, as these acts are only intended to protect a purchaser who is without actual or constructive notice. It is evident, however, that many cases might occur in which there is no actual possession, and where, therefore, the element of notice could not be introduced to the prejudice of the subsequent purchaser. The argument derived from the registry acts was also urged in Jarvis «. Aikeus, 25 Vt. 635, but the court said, " It is not seriously claimed by the coun- sel for Catherine Murphy, but that the subsequent title acquired by Aikens would enure to the benefit of Jarvis, so as to estop Aikens and his heirs from claiming title against him and his assignees ; but it is said that the principle should not be applied as between the purchaser and a subsequent purchaser from the grantor, and that to so apply it would be at war with our registry sys- tem. This is a point of some importance, and well deserves consideration." After then quoting the language used in Douglass v. Scott, 6 Ohio, 198 ; supra, p. 427, the opinion continued : " In this view of the case our registry system can have no control of the question. There was no title in Aikens when he deeded to Murphy ; it had before passed to Jarvis, and was vested in him. In the case from 24 Pick. 324 (White v. Patten, supra) , the point was specially made by counsel that this doctrine was in conflict with their registry system, but the court did not regard the objection. The same objection has been made in other cases, but without effect." ' ' For, as Judge Hare has well said, " It necessarily tends to give to a vendee who has been careless enough to buy what the vendor has not got to sell, a preference over subsequent purchasers who have expended their money in good faith, and without being guilty of negligence ; " note to Duchess of Kingston's case, 2 Smith's Lead. Cas. (7th ed.). ' Thus, in Bivins v. Vinzant, 15 Ga. 621, 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 con- veyed it to another purchaser without notice, and it was held that the title did not enure to the prior purchaser by estoppel. In the subsequent case, of Way ». Arnold, 18 Ga. 181, Pyncheon, having no title to certain lands, conveyed them to the plaintiff with covenants of warranty, and subsequently acquiring the title, conveyed it to the defendant ; and the court was " quite clear that, notwithstand- ing Pyncheon sold to the plaintiff with warranty, and afterwards bougbt the 430 THE OPERATION OP COVENANTS FOR TITLE In Pennsylvania, the doctrine adopted by the New England cases was never consistently carried to its full extent, viz., that premises, this after-acquired interest did not feed the estoppel and pass the property in controversy immediately to the plaintiff; " and it, moreover, strongly inclined to the opinion that the registry acts, under the modern form of con- veyancing, were a virtual repeal of the doctrine of estoppel. This was followed by Faircloth v. Jordan, id. 352, where, in 1834, Baugh, having no title, conveyed a lot of ground to Carmichael, who recorded his deed in December, 1836, and whose title afterwards became vested in the plaintiifs. In March, 1836, Baugh acquired the title to the lot in question and conveyed it to Arnold, who duly recorded his deed, an^ through whom the defendants claimed. A verdict was rendered for the defendants, and this was affirmed on error. " The doctrine of estoppel by deed," said the court, " the doctrine that the donee in the younger of two deeds for the same land, made by the same donor, is estopped from insisting that the land was not, by the older deed, conveyed to the donee in that deed, is in direct conflict with much of the law contained in our registry acts. In those acts is to be found this rule, — that a younger deed, if duly recorded, is to take precedence of an older deed if not duly recorded. This rule, as to the cases that fall within it, is in direct conflict with the aforesaid doctrine of estop- pel. And what cases fall within it ? Cases in which the donor of the land owned it at the time when he made the first of the two deeds ; how much more, then, in cases in which the donor did not at that time own the land, but had come to own it at the time when he made the second deed. We think it clear, therefore, under these statutes, that an older deed, not duly recorded, cannot operate as an estoppel upon a younger deed duly recorded." In Linsey v. Ramsey, 22 Ga. 627, the warranty was held to rebut (not to estop) the grantor who had made the deed before he acquired title; "and after he had acquired title, he himself, in the face of his warranty, sued his warrantee for the land," and was, of course, held not to be entitled to recover ; Henderson v. Hackney, 23 id. 392 ; see also Goodson V. Beacham, 24 id. 154, cited supra, p. 418, a. 3. In the recent case in Minnesota of Burke v. Beveridge, 15 Minn. 206, the court seem to take the same view of the law. Jackson, having no title to certain lands, con- veyed them with covenant of warranty to the defendant, who neglected to record his deed, and the latter conveyed to the plaintiff with covenants for seisin, of good right to convey, for quiet enjoyment and of warranty. Jackson subse- quently acquired the good title, and conveyed it to Hitchcock by a duly recorded deed. The plaintiff sued for breach of the covenants for seisin and. of good right to convey, and, on the part of the defendant, it was contended that the after-acquired title of Jackson at once enured to the benefit of the plaintiff, and consequently that Hitchcock took nothing, and that the damages could be but nominal ; but the court said, " It is unquestionable that the deed from Jackson to the defendant not having been recorded till after the making and recording of that from Jackson to Hitchcock, is prima facie void as against the latter ; Jack- son V. Given, 8 Johns. (N. Y.) 139 ; Durham v. Day, 16 id. 667. But he sug- gests that the record of the mortgage given by defendant to Jackson ought, with that of the deed to the plaintiff, to operate to rebut the presumption of Hitch- cock's good faith. But it is entirely clear that the record of that deed and BY WAT OF ESTOPPEL OR REBUTTER. 431 when a conveyance contained certain covenants for title an after- acquired title actually passed by estoppel, — at least it was never made to depend entirely upon the presence or absence of those covenants. In an early case,i it was said, " J. M. sells and conveys land to which he has no title, but afterwards acquires title. Can 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, and if there were occasion for further assurance, equity would compel them to make it ; " and it was added : " In equity, a grantor conveying land for which he has no title at the time shall be considered a trustee for the grantee, in case at any time afterwards he should acquire title." And in a later case ^ it mortgage was not constructive notice to Hitchcock; 2 Lead. Cas.'in Eq. 181. And as there was therefore no presumption of law that he knew of their existence, and as the fact that such record existed would have of itself no tendency to prove that he knew it did, and as defendant introduced no evidence tending to prove any actual notice, not even that Hitchcock examined the records before taking his deed, there was no error in the failure of the court below to submit the ques- tion of actual notice to the jury," and it was held that the plaintiff was entitled to recover the amount of the consideration with interest. While the sheets of the first edition of this treatise were going through the press, a case occurred to the author in practice which further illustrates the doc- trine here referred to. A house and lot, which were subject to a ground-rent, were sold to a purchaser " under and subject to the payment of the said ground- rent," but at the end of the habendum was inserted, "freed, exonerated, dis- charged, and forever indemnified and saved harmless against him, the said (vendor) and his heirs, of and from the said ground-rent, and every part thereof." A year after this deed was executed, the ground-rent was conveyed to this ven- dor. This was not, of course, an extinguishment of the ground-rent, as the title to the ground and the rent was never united in the same person at one time ; Charnley t). Hansbury, 1 Harris (Pa.), 16. Upon a sale made by the original purchaser, it was objected to the title that although by the words in the habendum the vendor and his heirs were estopped, yet that in case the ground- rent should be conveyed to a subsequent purchaser, he would not be bound to search the record for conveyances by his vendor prior to the time when he acquired title to the ground-rent, and a release was therefore insisted upon and obtained from the original vendor. Such a release would have been needless if the doctrine of White v. Patten be sound, as the estoppel created by the covenant would have operated even upon and against a subsequent purchaser from the original vendor. But since the recent case in Pennsylvania of Calder v. Chap- man, 2 P. F. Smith, 359 (infra, p. 434), such a result could not have happened. ' McWilliams v. Nisly, 2 Serg. & Rawle, .516. Whether the conveyance by J. M. did or did not contain covenants for title is not stated in the report. ' Chew V. Barnet, 11 Serg. & Rawle, 389, per Gibson, C. J. Wilson having an equitable title to certain lands, conveyed them to the plaintiflf with cov- 432 THE OPERATION OF COVENANTS FOE TITLE was distinctly held in a very able opinion that the acquisition of the subsequent title enabled the prior purchaser to demand in equity a conveyance from the grantor, but did not vest the title in him of itself by estoppel. " In the case of a conveyance before the grantor has acquired the title, the legal estate is not transferred by the statute of Uses, but the conveyance operates as an agreement which the grantee is entitled to have executed in chancery." ^ In Brown v. McCormick, however, the doctrine that the after- acquired estate " by operation of law immediately passes to the grantee," was applied to its full extent, and apparently against a purchaser without notice.^ enants of special warranty and for further assurance. The legal title was subsequently conveyed to Wilson, who mortgaged it, and it was held that the plaintiff took subject to the mortgage. "Judge Wilson having nothing but an equitable title," said Gibson, C. J., "could convey nothing more. His deed, therefore, passed to the plaintiff only an equitable title. But it is said the sub- sequent conveyance to Judge Wilson enured to the benefit of the plaintiff. It did so, but only in equity, and to entitle him to call for a conveyance from Judge Wilson, and not as vesting the title in him of itself, as contended, by estoppel. The facts presented constitute the ordinary case of a conveyance before the grantor has acquired the title, in which the conveyance operates as an agreement to convey, which, when the title has been subsequently acquired, may be enforced in chancery." But not, of course, as against a subsequent purchaser without notice, as was this mortgagee. It may be proper to say that in Pennsylvania a mortgagee is a purchaser; Lancaster v. Dolan, 1 Rawle, 231. ' See accordingly Taylor v. Dabar, 2 Cas. in Ch. 212, supra, p. 199, n. ; Wright u. Wright, 1 Ves. 409 ; Noel v. Bewley, 3 Simons, 103 ; Smith v. Baker, 1 Younge & Coll. Ch. 223, supra, p. 199, ii. 2 ; Jones v. Kearney, 1 Drury & Warren, 159 ; Goodson v. Beacham, 2'1 Ga. 154, where this note was cited ; and in Steiner ii. Baughman, 2 Jones (Pa.), 108, the same learned judge remarked : "The covenant went directly to the land defined by the courses and distances ; and had the ven- dor subsequently purchased the part of it in question, a chancellor would have compelled him to convey it over again, in order to make good his former deed ; and this on an equity from the fact that he had received value for it." ^ 6 Watts, 60. This was a strong case. McConnel, claiming to own the premises under a survey, conveyed in 1788 to Harvey, by deed containing cove- nants for seisin and general warranty. Nine years after, the real owners, named Brown, conveyed to McConnel, who, to secure the payment of the consideration- money, on the same day gave his bonds with a warrant of attorney to enter judg- ment, and judgments were entered upon them six days after. Under these judgments the premises were sold by the sheriff, whose vendee brought ejectment against those claiming under Harvey ; and Rogers, J., who delivered the opinion of the court, said : " The first question is as to the legal effect of the deeds, which the court below decided was to pass immediately to Harvey all the right which McConnel acquired in the land by virtue of the deed from the Browns to him. BY WAY OP ESTOPPEL OR EEBUTTER. 433 But in a recent case, the question was squarely presented in con- nection witli tlie registry acts, and tlie doctrine placed upon its And this is a principle too well settled to admit of dispute. When a person con- veys land in which he has no interest at the time, but afterwards acquires a title to the same land, he will not be permitted to claim in opposition to his deed from the grantee, or any person claiming title from the grantee ; 12 Johns. 207 ; 11 Johns. 91 ; Co. Litt. 265. The operation of the principle is, that imme- diately on the execution of the deed of 1797, from Brown and others to McCon- nel, it enured to the benefit of Harvey, the grantee of the land, by virtue of the previous deed of the 2d of January, 1788. At that, period, therefore, by opera- tion of law, Harvey was the owner of the premises in question. And the legal effect will be the same, whatever may have been the intention of McConnel 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 Harvey. But it is alleged that the judgment on which the plaintiffs claim, being for the purchase- money, although not entered until six days after the conveyance, is a lien on the property conveyed by Brown to McConnel. But bonds, with a warrant of attorney to confess judgment, although given to secure the purchase-money, are but a per- sonal security until judgment 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 McConnel to malce any disposition of the land he pleased, either by sale or by subjecting the premises to the lien of other incum- brances. And this conveyance the vendor can only avoid by entering his judg- ment the same day the deed is delivered, or by taking a mortgage on the property sold, for security of the purchase-money. The counsel for the plaintiff in error relies on Chew v. Barnet, 11 Serg. & Rawle, 389 ; but that case merely decides the general principle that the purchaser of an equitable title takes it subject to all the countervailing equities to which it was subject in the hands of the person from whom he purchased. But here, by the conveyance from Brown to McConnel, McConnel acquires a legal title to the premises, without the lien of any incum- brance whatever, whether legal or equitable, which, by operation of law, imme- diately passes to his grantee." In the subsequent case of Bellas v. McCarty, 10 Watts, 26, it was said by the same learned judge, that Chew v. Barnet " must be viewed with reference to the case decided," though the decision in the case was not in point. In the previous case in New York of Jackson v. Bradford, 4 Wend. 619, the facts were almost identical, and the decision different. An heir conveyed certain land with a covenant of non-claim. Afterwards the estate descended upon him, and was levied upon under a judgment against him, and sold, and the court held that the sheriff's vendee took, to the exclusion of the prior grantee, and it escaped from the application of the doctrine of estoppel by holding, as has since been done in Maine (supra, p. 393), that no action would lie upon a covenant of non-claim, and hence there would be no estoppel. In Kennedy v. Skeer, 3 Watts, 98, there was a mere assignment of the title acquired under a. treasurer's deed, which it was held did not estop the grantor himself from after- wards claiming the land under a subsequently acquired title. But in McCall v. Coover, 4 Watts & Serg. 161, the principle that an after-acquired title enured to a 28 434 THE OPERATION OP COVENANTS FOR TITLE proper basis. One who had no title at all to certain laud, conveyed it by indenture of mortgage, which was duly recorded. A year after, prior vendee was acted upon entirely irrespective of any covenants for title, as it was held that the titles to donation land granted by the Commonwealth to soldiers of the Revolution, prior to its acquisition by the State, were confirmed by the subsequent purchase by the latter. In this case there was, of course, no warranty of the title (supra). In Tyson v. Passmore, 2 Barr (Pa.), 122, the defendant, by certain articles of agreement reciting a warrant and survey of seventy-five acres, covenanted to convey to the plaintiff all the land " acquired by defendant by the warrant and survey aforesaid." It was proved that the articles intended to convey a tract of two hundred and sixty acres, and that the defendant procured a survey for the seventy-five acres which he transferred to the plaintiff, and retained the survey for the residue of the tract. On an eject- ment brought by the plaintiff for this residue, the court held that " the proper relief is not to reform the instrument, but to convert the fraudulent vendor into a trustee ex nialeflcioy If it sliould appear strange that ejectment was brought upon an equitable title, it must be remembered that in Pennsylvania, owing to the absi-nce of a court of equity during one hundred years, it became the prac- tice to administer equity through the medium of common-law forms. And in Hoot V. Crock, 7 Barr, 380, where a survey was made for the purpose of a par- tition, and the heirs conveyed according to the lines of that survey, and a recon- veyance was made to one of them of his purpart, it was held that they were estopped from denying the correctness of the boundaries, and the husband of one of the heirs, who had also been a party to the deed, having purchased adjoining land, part of which was included in the survey and deed, it was held that he was estopped from claiming so much as was included. It was argued on his behalf that there could be no estoppel without a warranty, but the court said, " There is no principle in our law better or more plainly settled than that on which the judge instructed the jury, — that if a jiian sells and conveys land to which he has no right or title, and afterwards buys or acquires the title to the same land, he can- not claim it as against his grantee." In Skinner v. Starner, 12 Harris, Vl'o, it was decided that as between the grantor and grantee in a conveyance with general warranty of land which was bound by a prior judgment, the grantor was bound to discharge the judgment, and that the title subsequently acquired by the grantor at a sheriff's sale under such judgment 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, and had no equitable right to demand a conveyance of Ihe title subsequently acquired by the original vendor at the sheriff's sale. In Clark v. Martin, 13 Wright, 303, the court say, "It is not to be doubted that a vendor who undertakes to sell a full title for a valuable consideration, when he has less than a fee-simple, but afterwards acquires the fee, holds it in trust for his vendee, and will be decreed to convey it to his use, and equally clear is it that if a vendee mortgage his title, the perfection of the title by the vendor enures to the benefit of the mortgagee." In Turner v. Scott, 1 P. F. Smith, 133, it was held that a covenant of warranty in an instrument purporting to be a deed, which, BY WAT OF ESTOPPEL OR REBUTTER. 435 he acquired the title, which was afterwards levied upon and sold, and a sheriffs deed made to the purcliaser. Some years after, the mortgagee sued out the mortgage, purchased at the sale, received a sheriff's deed, and brought ejectment, and it was urged on his behalf that by force of the estoppel the afterracquired title enured to his benefit, and that he was consequently entitled to recover. But it was held that as the purchaser at the first sale was not bound to search for incumbrances or conveyances by the debtor before the time when he fi»st acquired title, the registry of the mortgage was no notice to him, and that the doctrine of estoppel could not be suffered to apply. Judgment was therefore entered for the de- fendant.^ In a previous case,^ there had been a conveyance to a grantee without the addition of the word heirs, but the covenant of war- ranty was with the grantee and his heirs and assigns, and the court held that althougli it was a teclmical rule that a warranty could not enlarge an estate,^ yet that it might operate by way of equitable rebutter to avoid circuity of action. The doctrine of the cases which require the presence of a covenant of warranty seems then to have been approved, and it was added, "Without then under- taking to determine whether"tbe fee-simple is transferred, we are of opinion that the grantor and the plaintiff who claims under him are estopped from denying the title."* Contrary decisions have however, was construed to be a will, "would protect the consideration therein expressed, which in this ease was in the form of services, and if the grantee ren- dered the services, he would be entitled to damages," but that the covenant would not estop subsequent devisees ; but in the very recent case of Scott v. Scott, 2 Pittsburg Leg. Jour. N. S. (Jan. 31, 1872), p. 91, it was decided that a covenant of warranty could not be created by a will; supra, p. 139. ' Calderi'. Chapman, 2 P. F. Smith, 369; Brown v. McCormick, supra, p. 432, was cited in the argument in this case, and must, perhaps, now be con- sidered as overruled. ^ Sliawu. Galbraith, 7 Barr, 111. ^ Supra, p. 415, n. 3. '' In 1838, Galbraith senior conveyed certain premises to the ancestor of the defendants, without the addition of the words '' heirs " or " assigns," but the cov- enant of warranty was from tlie grantor and his heirs to the grantee, " his heirs and assigns." In 1846, the former leased these premises to the plaintiff for life, who, on the death of the defendant's ancestor, brought this ejectment. A verdict was rendered for the defendants, which was affirmed on error. " Grant- ing that in this deed," said Rogers, J., who delivered the opinion, "a life- estate only is granted, and that the subsequent warranty or covenant does not 436 THE OPERATION OF COVENANTS FOB TITLE however been elsewhere made upon precisely similar facts, and it has been 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 tliat the warranty ceased when the estate to which it was annexed determined.^ As respects the law as it is held in England, it will be found that in no case now regarded as authority has it been held that the after-acquired estate actually, passes by estoppel, t)ut that its acqui- sition merely creates an equity for a conveyance. Thus in the old case of Taylor v. Debar,^ " a purchaser of the crown lands in the time of the late wars sells part to the plaintiff, and covenants to make further assurance. He, on the king's restitution, had a lease for years made to him under the king's title. The decree was, he should assign his term in the part he sold." enlarge the estate, yet the question remains whether this covenant may not operate as an equitable rebutter ; or, in other words, is Galbraith senior, and the plaintiff who claims under him, estopped from asserting a title to the land ? By the habendum, in consequence of the omission of the word " heirs," a life- estate only is conveyed to the grantee ; but the deed contains a special warranty, whereby the estate is warranted to the grantee, his heirs and assigns. Now although a warranty in favor of the heirs may not enlarge the estate, yet it would be against every principle of construction to reject it as surplusage. In the con- struction of a deed or will every word must have its own weight, and certainly a distinct covenant, as here, cannot be disregarded. The deed contains a cove- nant that the grantor will not molest or disturb either the grantee or his heirs, and if, contrary to his covenapt, he recovers the land, and dispossesses the grantee or his heirs, action accrues to recover its value from the grantor. The question then is, whether, to prevent circuity of action, the defendants may not plead an equitable rebuttal, or estoppel, as against the grantor and those claiming under him, and we are of opinion that the grantor and the plaintiff who claims under him are estopped from denying the title." ' On the authority of Seymor's case, 10 Coke, 96. 2 Register v. Rowell, 3 Jones' Law (N. C), 312 ; Rector v. Waugh, 17 Mo. 27. In Patterson v. Moore, 15 Ark. 222, where also the grant omitted the word heirs, the grantor covenanted to warrant and defend from himself, his heirs, executors and assigns forever. It was contended, on the authority of Shaw v. Galbraith, that the deed operated to pass the fee by way of estoppel, but the court said that in that case "the special clause of warranty was from the grantor and his heirs to the grantee, his heirs and assigns. Here, whether from igno- rance or design, the clause of warranty is only against the grantor 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." = 1 Chanc. Cases, 274 ; s. c. nom. Taylor v. Dabar, 2 id. 212. BY WAT OP ESTOPPEL OR REBUTTER. 437 111 Boiisley z). Burdon,i however, Vice-Chan cellor Leach treated an estoppel caused by a deed of lease and release as possessing the high efficacy of actually transferring the estate. But the authority of this case was soon after indirectly if not positively denied by the King's Bench in Right v. Bucknell,^ and Sugden,.who had himself, in Bensley v. Burden, argued in favor of the estoppel, afterwards said from the bench ^ that it was now clearly settled that a conveyance ' 2 Sim. & Stu. 624; see this case supra, p. 387, n. ' 2 Barn. & Adolph. 273 ; see the ophiion of the court, supra, p. 38.o, n. 3. ' Lloyd V. Lloyd, 4 Drury & Warren, 3§9 ; 2 Connor & Lawson, 698. The report in the first of these books is the more full. The Chancellor is there re- ported to have said: " This conveyance, being an innocent conveyance by lease and release, could not operate by way of estoppel. It is true that Sir John Leach, in Bensley v. Burdon, did hold the contrary, and decided that an estoppel could be worked by lease and release. The point was subsequently ruled the other way in the King's Bench, in Right v. Bucknell, and it is now clearly settled that a conveyance of this nature has no effect upon the legal estate which the party subsequently acquires." In 2 Connor & Lawson the report is: " Speaking from recollection, I think Sir J. Leach decided in Bensley V. Burdon, though I pressed him very 'much upon the point, that a lease and release would operate by estoppel, but the King's Bench afterwards held otherwise, and the current of authorities has established the point." The Chancellor's recollection, however, was not exactly accurate as to his own position in the case of Bensley v. Burdon, as he seems to have thought that Sir J. Leach had held in favor of the estoppel, notwithstanding the pressing argument in opposition to it. But, in fact, Sugden had argued in favor of the estoppel, and, it would seem in the first argument, not Very earnestly, as the report of it is, " To the extent of securing the annuity the deeds of 1803 operate by way of estoppel. But whatever be their operation at law, it is quite clear that if a person assumes to sell an estate in which he has no interest, and he afterwards acquires an interest, this court would, upon a bill being filed against him, compel him to execute a conveyance. And it is equally clear that a purchaser from him with notice would stand in the same situation as the vendor;" and the Vice-Chancellor, in delivering his opinion, said, "It is said that estoppel cannot be worked by lease and release, and therefore it was necessary to come into equity, and this point was treated at the bar as too clear for argument. My impression was otherwise, and I requested that the case might be argued a second time upon that point alone ; and, after hearing that second argument, I am confirmed in my opinion that estoppel is as well worked by an indenture of release as by any other indenture ; " but, as has been stated in the text, this has since been overruled. In Cornish on Purchase-Deeds, p. 7, it is said, " The true proposition is that a release does not estop as a release, not that the instrument by which it is made may not estop if sufiiciently solemn. It will not, like a feoffment, work an estoppel by matter in pais, but it undoubtedly may produce that effect by matter in writing ; and therefore as a release by en- 438 THE OPERATION OF COVENANTS FOR TITLE of this nature has no effect upon the legal estate which the party subsequently acquires.^ In Noel V. Bewley,^ a contingent remainder-man conveyed his interest, with a covenant of further assurance, to secure a debt, but by the act of the tenant of the prior estate this remainder was destroyed, and the remainder-man subsequently acquired a new interest in the property, and it was held tliat this subsequent title was available to the creditor, and Vice-Chaneellor Shadwell said, " I do not place much reliance upon this covenant for further assurance, because I take the law to be this : tliat if a person has conveyed a defective title, and he afterwards acquires a good title, this court will make that good title available to make the convey- ance effectual." ^ largetnent must ba by deed, and always is by indenture, a lease and release will estop when it cannot operate as a conveyance. The writer in his essay on Uses, 179, citing Co. Litt. 352, advanced this opinion, in the face, however, of the general opinion of the profession, which he conceived to be inaccurate from not discriminating between an estoppel produced by the nature of the assurance and an estoppel effected by the nature of the instrument by which that assurance is made. He conceives, therefore, that the late decision of the Vice-Chancellor, which is built on this principle, is in perfect unison with the established dis- tinctions of our ancient law." The distinction thus taken is, however, very refined. ' In Doe d. Hutchinson v. Prestwidge, 4 Maule & Selw. 178, one of three tenants in common in tail released to the others with a covenant of warranty. By the death of one of the latter the releasor became his heir, and conveyed hi.s interest in the premises to the plaintiff, who brought suit for the same against the (ihildren of the other tenant in common, who had also died, for whom it was contended that whether this warranty passed the right, or might be used onlv by way of rebutter, was immaterial to the defendants ; in either case the plaintiffs were not entitled, for they could not stand in a better position than the releasor himself, "and the court having intimated an opinion that the lessors of the plaintiff were barred by the release in respect of so much of the releasor's interest as the plaintiffs took under the release," the defendant's counsel " made another point, viz., that whatever interest passed by the release passed to the releasee as joint tenants and not as tenants in common," but this was subsequently aban- doned, "wherefore judgment passed for the defendants." = 3 Simons, 103 ; see also Smith v. Baker, 1 Younge & Coll. 223. ' In Morse v. Faulkner, 1 Anstruther, 11 ; s. c. 3 Swanston's Ch. R. 429, n. (where the report is more full), " it seems to have been considered that this is a personal equity attaching on the conscience of the party, and not descending with the land, and therefore that if the vendor do not in his lifetime confirm the title, and the estate descend to the heir-at-law, he will not be bound by his ancestor's contract;'" 2 Sugden on Vendors, 42. In this case, however. Chief Baron Eyre spoke by no means positively as to this doctrine of mere personal BY WAY OP ESTOPPEL OR REBUTTER. 439 The result of the authorities was thus stated by Sugden, while equity, and expressly said, " I shall not determine the case upon this ground without further consideration ; " and Sugden, while Chancellor of Ireland, had himself disapproved of this decision, in Averall v. Wade, Lloyd & Goold, 261. "The only ease," said the Chancellor, "I recollect on the subject is Morse v. Faulkner; there the party was not entitled, at the time of the con- veyance, but afterwards acquired the title by des<'ent, and the court seemed to think that there was a personal equity, and not descending with the land. I am not of that opinion ; " and in Jones r. Kearney, 1 Drury & Warren, 159, the Chancellor, referring to Morse v. Faulkner, said, " I had always thought that no good reason could be given why the contract should be binding upon the ancestor, and not upon the heir.'' The case of Fausset v. Carpenter, in the House of Lords, 2 Dow & Clark, 232, s. c. 5 Bligh's New Rep. 75, should not be here passed by without notice. The report is thus abridged in Sugden's treatise " On the Law of Property as admin- istered in the House of Lords," and as much reliance was placed upon the form of the covenants for title, it will not bear a more succinct statement. "The estate in qnention had vested in three daughters in fee as co-heiresses : Catharine, Anna Maria, and Elinor. Catharine, on her first marriage, conveyed her third to two trustees in fee, of whom Henry Palmer was one, for her husband for life, then for herself for life; and then for the issue of the marriage. There were several children of this marriage, and Catharine married a second husband. Anna Maria married, and made no settlement of her one-third ; and Elinor married Henry Palmer (the trustee under Catharine's settlement), and she made no settlement of her one-third, and afterwards died, leaving her husband and one son surviving her. Fausset contracted to buy the estate for £-1,000, and was ignorant of Catharine's settlement. The real interests of the seller stood thus : Catharine's one-third was vested in fee in Henry Palmer and the other trustees, in trust for Catharine for life, and her husband was of course interested in her life-estate in his marital right. Anna Maria's one-third was vested in fee in her and her husband, and Elinor's one-third was vested in her husband as tenant by the curtesy, and the fee was vested in the son, subject to the father's estate. Catharine and her second husband, and Anna Maria and her husband, levied fines of their several one-thirds ; and by lease and release they and Henry Palmer, in consideration of £4,000 paid by Fausset, viz., £1,333 6s. 8d. to Catharine and her husband, £1,333 Us. 8'/. to Anna Maria and her husband, and £1,333 6s. 8d. to Henry Palmer, did, and each of them did, grant and release to Fausset, in fee, all the lands and estate in question, and all the estate, right, title, interest, use, trust, inheritance, prop- erty, claim and demand whatsoever, either at law or in equity, of them the grantors, and each and every of them, of, in and to the said lands, &c., and every part and parcel thereof, together with all documents of title relating to the same. And the husband of Anna Maria, for himself and Anna Maria his wife, and for his and her heirs, executors and administrators, and the husband of Catharine for himself and Catharine his wife, and for his and her heirs, executors and administrators, and Henry Palmer for himself, his heirs, execu- tors and administrators, and for the heirs of Elinor his wife, deceased, cove- 440 THE OPEEATION OP COVENANTS FOR TITLE Chancellor of Ireland : ^ " The cases seem to me to establish nanted with Fausset and his heirs and assigns, that notwithstanding any act, &o., by them, or by the father of the three ladies, they, the two husbands and wives, and Henry Palmer, or some or one of them, were or was seised in fee of the lands conveyed ; and that they, or some or one of them, had right to con- vey, and for quiet enjoyment of the lands and every part thereof, against the husbands and wives, and Henry Palmer, or any of them, their or any of their heirs and assigns, or any other person or persons lawfully claiming or to claim any estate, right, title, trust or interest, either at law or in equity, of, in, to or out of the lands conveyed or any part thereof, from, by or under or in trust for them or any of them, or Elinor 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 Palmer, their heirs or assigns, indemnified against all grants, estates, &e. &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, &o., 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 further assurance by the two husbands and wives, and Henry Palmer, and the issue of Henry by Elinor his late wife, and her heirs, and all persons claiming any estate, right, title or interest, either at law or in equity, in the lands or any part thereof, from, by or under or in trust for them or any of them. And it was declared that the fines should enure to Faus- set in fee. Upon an ejectment 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 otherwise, and upon a bill of exceptions his opinion was supported by the Court of King's Bench in Ireland, and their judgment was affirmed by the House of Lords, without taking time to consider. The law lords who advised the house were Lord Wynford and Lord Tenterden, C. J. Lord Wynford said, as to the con- struction of the deed, he took it on the principle stated by Sir E. 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. [?] Then look at the deed, and see what is the scope and effect of it. Palmer and the other parties in- terested 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. The only difficulty in this case arose from the double 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 the ' Jones V. Kearney, 1 Drury & Warren, 159. * 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. BY WAY OF ESTOPPEL OK REBUTTER. 441 this, — that if a man sells an estate (and the principle is the same deed meant to do and did what he was wrong in doing, when a construction may be put upon the instrument perfectly consistent with his doing only what he has a right to do. He had a right to convey his own estate, but he did wrong if he conveyed more. The parties to the deed were the two married daughters and their husbands, and Henry Palmer, who, as his wife was dead, was probably tenant by the curtesy, and they conveyed the estate to Fausset in consideration of £4,000. If the instrument had stopped there, one might say that each meant to convey the entirety ; but mark what follows : in three equal proportions of £1,333 6s. Sd., stated to be severally paid to each of the said grantors respec- tively. Each, therefore, takes his proportion of the price, and the fair presump- tion is, that each sells his proportion only. By the covenants for title and quiet enjoyment. Palmer appears to be dealing only with the interest which he had in right of his wife, and covenants for himself and for her heirs. Sir E. Sugden said that the covenants were strong in his favor, since they went to the entirety of the estate. No doubt they might be considered as leaning to his side of the question if taken in these terms, but they must take the whole of the instrument together, and then it appeared that each covenants for what he sells, and then the whole three covenant for the entirety of their interests. The plain meaning therefore was, that Palmer does not here convey the estate which he had as a trustee, and which he would have done wrong in conveying ; but that he conveys only the estate which belonged to him in right of his wife, and which he had a right to convey. Lord Tenterden replied upon precisely the same grounds. The question was, whether the deed operated as a conveyance by Palmer only of that in which he was beneficially interested, or extended to that estate of which he was a trustee. The question here was not as to whether a person having two estates, both of which he might innocently convey, but as to a person having two estates, one of which he might innocently and properly convey, and the other of which he could not convey without fraud and a breach of trust. He (Lord Tenterden) was satisfied that all 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. He then stated how the consideration was paid. That, he said, standing alone, would intimate that the parties meant to con- vey only what properly belonged to them, and that supposition was confirmed by the covenants. The form of the covenants showed that 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 extend the scope of the instrument further, where that was sufficient to satisfy its meaning, and so the judgment was affirmed with £100 costs." Sugden, in his Treatise on Vendors (3 Vend. 428) has considered this case to be " a dangerous precedent," and remarks of it in his " Law of Property," above referred to, " I do not remember any decision which was so generally condemned as this in Westminster Hall. The rights of the purchaser were entirely dis- regarded. He was ignorant of 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 parties to that conveyance conveyed the whole estate to the purchaser in fee. How, in the face of that conveyance, could any of those parties claim any interest as still remaining vested in them, 442 THE OPERATION OP COVENANTS POR TITLE if he grants his lands in mortpjage,^ or creates an annuity issuing out of them), and the title is afterwards defeated, but subsequently although they were capable of conveying them? Palmer was, no doubt, a trustee of Catharine's third ; but he did not disclose that circumstance to the purchaser. How, then, could he protect himself in that character by confining the operation of the conveyance to his own wife's third? He might have so confined it if he had chosen, but no doubt such adesire would have raised suspicion in the pur- chaser's mind, and he would not have completed the purchase. ... If Palmer's conveyance operated to convey Catharine's life interest, that is, the legal estate for her life, of course the fee passed, for the fee was expressed, and was intended to be conveyed. The deed was cut down in its operation at law, not from any thing which appeared on the face of it, but from the real state of the title, proved by extrinsic evidence, but which was not communicated to the purchaser. If the decision is capable of being supported, it must be con- sidered as a case in which three parties, claiming the fee in thirds, conveyed the whole estate to a purchaser, and the deed was construed to convey only one- third by each ; so that any estate which any of them had in the other two-thirds still remained in them. The circumstance that one of the sellers had an estate as trustee in another third, for another of the sellers and others, never could be made a ground for controlling the legal operation of the conveyance, where the trustee did not disclose the trust, but joined with the cestuis que trust, having a limited estate, and allowed them to convey as if the fee were vested in them. The question is not simply what the sellers intended to convey, we must consider also what the purchaser supposed they had conveyed, and what the words im- ported. Whoever conveys to a purchaser without restraining the operation of his conveyance should be deemed to convey in every character which enabled him to give effect to his deed. This is a rule which has always been acted upon. The lords relied upon two grounds : 1. That the consideration was paid in thirds, — but surely that was entitled to no weight ; the 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 inten- tion, each party would have confined his conveyance to the one-third to which he claimed to be entitled. 2. That the intention was shown by the covenants, — whereas, on the contrary, although each confined himself to the acts of the per- sons claiming his own third, yet each covenanted for the title to the whole. And even if the covenants had been confined by each party to his own third, for which there is an established form often used, yet that would have formed no ground for cutting down the conveyance by each of the whole. Nothing can be more consistent than, in such a case, taking a conveyance from all parties of the whole estate, and yet confining the covenants of every seller to the share whicb he claims, and the acts of the parties under whom he claims his share." Accord- ingly, while Chancellor of Ireland, Sugden observed, in Drew v. Lord Norbury, 3 Jones & La Touche, 284, " that he took it to be clear that where a person • Accord. Otter v. Lord Vaux, 2 Kay & Johns. Ch. 650 ; affirmed, 6 De Gex, M. & G. 638 ; Pierce v. Emery, 32 N. H. 484. BY WAY OP E8T0PPKL OR REBUTTER. 443 he acquires the same lands under another title, there is an equity arising out of the contract to fasten it upon tlie new title." ^ But the question generally recurs, What was the contract ? and as to this, we have the benefit of an able judgment of Stuart, V. C, in a somewhat recent case. In Davis v. Tollemache,^ tlie defendant, who was tenant in tail in remainder, mortgaged the estate witli the usual covenant for further assurance. Subsequently, t]ie estate tail became vested in him in possession, and a disentailing deed was thereupon tendered to iiim for execution, in order, as was claimed, that he might comply with the covenant for further assurance, and on his refusal, upon a bill filed to compel specific performance of the covenant, it was demurred to for want of equity. The Vice- Chancellor considered, first, that the covenant for further assurance in a deed was a covenant intended to give full effect and operation to the interest conveyed hy the deed, and the utmost extent to which the court had gone had been to extend its operation to the very estate and interest which were conveyed by the deed. " If a tenant in tail conveys in fee-simple upon a recital that he is entitled to the fee, and the instrument contains no covenant to suffer a re- having several estates and interests in lands joins in conveying all his estate and interest in them to a purchaser, every estate or interest vested in him will pass by that conveyance, although not vested in him in the character in which he became a party to the (.'onveyance. It it true that in Fausset v. Carpenter the House of Lords took a different view. At the time when that cause was decided it was thought to be impossible to maintain the decision ; and it was a subject of consideration among the profession whether it would not be advisable to bring in a short act of Parliament to revise it. That case could not operate to weaken the rule of law. Nothing could be more mischievous or contrary to law than to hold that where a party professes to convey all his estate and interest in par- ticular lands, the operation of his conveyance should be limited to the estate which was vested in him in the character in which he purported to join in the conveyance." ' Tiiis is cited and approved by Mr. Dart, who adds, "In applying this rule the word estate must be strictly construed, for evidently no such equity could exist where the contract had been for the purchase of a professedly contingent interest at a price fixed with a view to the contingency ; " 2 Dart on Vendors (4th ed.), 741. In England, at the present day, since fines and recoveries have been abolished, and feoffments deprived of their high efficacy (statute of 8 & 9 Vict. c. 106), it may be said that the only cases in which after-acquired titles actually pass by a former conveyance, so as to exclude a subsequent purchaser, are those of leases. ' 2 Jurist (N. S.), 1181, decided in 1856 by Vice-Chancellor Stuart. 444 THE OPERATION OP COVENANTS FOR TITLE covery or to levy a fine, the court, finding an express contract whicli relates to an estate in fee which is purported to be conveyed by the instrument, extends the operation of the covenant for further assurance so as to apply to the subject-matter of the grant, which it is in the power of the grantor to complete by an instrument, although that instrument may bar and conclude the title of other persons ; " and, secondly, in looking at the intention of the parties to be collected from the mortgage, the court had no doubt that there was no further intention than that the mortgage should apply to every estate and interest which could be affected by the convey- ance, but that it was no part of the contract that any thing shoiild be conveyed but what was the actual and proper estate of the grantor. Barring the estate or interest of any other person was not in the con- templation of anybody ; " I cannot find," said the Vice-Chancellor, " upon the best attention I can give to the terms of this contract, that any thing like a disentailing deed, or any thing to bar or affect the interest of any other person, or any thing other than what would pass by the simple grant of the grantor to the extent of his own interest, was sought to be affected. The power given to the disentailing act, is a power of an entirely different kind. It is a power which gives to a tenant in tail, who intends and wishes to do so, a power to disin- herit the issue in tail, — to deprive them of that wliich, according to the terms of the gift, they are entitled to, and to enlarge his estate to a fee-simple. I can find no contract in this deed for enlarging the estate of the grantor to any extent ; and I conceive that unless there be words in the instrument which can show it was intended that the covenant for further assurance should extend to enlarging the estate conveyed, and to barring interest in other persons than the grantor, the court is not justified in resorting to its extraordi- nary jurisdiction for specific performance, to compel the grantor to execute an assurance of a kind that was not, and could not from the form of the instrument, be thought to be in his contemplation at the time when the grant by him was made," and the demurrer to the bill was sustained. ^ ' The case was argued for several days in July, but the Vice-Chancellor, after stating his impressions as given in the text in the language cited, said that he should require the interval of the vacation to consider a matter of sucli im- portance, and in November he stated that having since much considered the case, which seemed to him "to be one of considerable novelty and of very great im- portance," he continued of the opinion which he formed at the time of argument, BY WAT OP ESTOPPEL OR REBUTTER. 445 It is believed that a carefal examination of the many hundreds of American cases upon this subject will show that, in spite of a few mistakes in point of dpctrine, and mistakes, still fewer, in con- sequence of practically enforcing results as logical deductions therefrom, the true doctrine to be deduced from them can be prac- tically applied not only without disturbing any of the landmarks of the law, but in strict consonance with the general principles of jurisprudence. The following propositions may perhaps embody and harmonize the very large number of authorities upon this subject : ^ — I. The principle upon which rests the doctrine that the after- acquired estate passes - is, or at times may be, a salutary one, and is intended to carry out the real intention of the parties that a cer- tain particular estate was to be conveyed and received, and where that intention appears, the law will not suffer the grantor to de- feat it.3 II. Such an intention is generally to be deduced from the pres- and the bill was dismissed. The case not only seems to have gone no further, but the only report of it is in the Jurist, there being no report in either Smale & Giffard, or Giffard. See this case further referred to, infra, Ch. XV. ' In former editions of this treatise, the following result of the authorities was suggested; " But, it may be asked, if an estoppel is not created by a deed taking effect under the statute of Uses, and if a warranty in that deed does not of itself create an estoppel, how is an estoppel created, and what is the true principle that appears to be properly deducible from the many authorities cited ? The answer to this question may perhaps be that the principle of the cases seems to be referable to a familiar rule in equity, that if a man contracts for the sale of an estate, which he has not at the time such contract is entered into, and he afterwards acquires such an interest as will enable him to make good his con- tract, equity will compel him to perform it and make good the title, and that the presence of a warranty in a deed purporting to convey an estate has, it would seem, upon strict principle no greater effect than an averment that the contract between the vendor and purchaser is, that that identical estate shall be actually transferred from the former to the latter ; and such an effect can be produced by other covenants than the technical ones for title, and by other parts of the deed than the covenants." But it is believed that the conclusions now suggested in the text more accurately represent the present state of the law. ' Viz., that " a man's own act (i.e., his previous deed) closeth up his mouth to aUege the truth '" (i.e., that no estate passed thereby). ' Supra, p. 388. 446 THE OPEBATION OP COVENANTS FOR TITLE ence of covenants for title, and it is immaterial what particular covenants these may be, so that they show the intention.^ III. But the intention is not necessarily so deduced, and may appear by other parts of the deed.^ IV. In many cases, to prevent circuity of action, it may be inno- cently held that the estate actually passes? V. But this should not be suffered to work injustice by depriving the grantee of his right of action, i.e., his option to sue.* VI. And the doctrine may often properly apply when there is no right of action.^ VII. But the doctrine should never be applied against a pur- chaser without notice, for where the equities are equal, the legal title shall prevail.^ ■ Supra, pp. 392, 404-412. ^ Supra, p. 388. ' That is to say, where the question arises between grantor and grantfee, supra, p. 418. " Supra, p. 420-428. ' Sui^ra, p. 401-403. ' Supra, p. 427-435. That is to say, if traced to its source, the doctrine is just this : the fir.st grantee has an equity to have the after-acquired estate conveyed to him. As applied in most of the American cases, their result is simply the en- forcing this equity in a court of law; but law follows equity as equity follows the law, and the equitable doctrine that when the equities are equal the legal title shall prevail, cannot be disregarded iu a court of law enforcing equitable principles. It is believed that the most recent authorities are tending in favor of the propositions thus suggested. In Van Rensselear v. Kearney, 11 How. (U. S.) 298, which was reported since the earlier editions of this treatise were pub- lished, much of the doctrine was carefully considered by the Supreme Court of the United States. John J. Van Rensselear having but a life-estate in cer- tain lands, conveyed them in fee to Penfield, by a deed of bargain and sale, with a covenant against incumbrances, — the case, however, is decided indepen- dently of this covenant. In 1813 Van Rensselear acquired the fee in these lands, and on his death in 1828 it descended to the complainants as his heirs- at-law, who brought this suit in equity against the parties holding under Pen- field's title, for an account of the rents and profits and a surrender of the title papers. But the court held that the complainants were estopped by the con- veyance to Penfield from asserting their title. " The general principle is ad- mitted," said Nelson, J., who delivered the opinion, " that a grantor conveying by deed of bargain and sale, by way of release, or quitclaim of all his right and title to a tract of land, if made in good faith and without any fraudulent repre- sentations, is not responsible for the goodness of the title beyond the covenants in his deed. A deed of this character purports to convey, and is understood to convey, nothing more than the interest or estate of which the grantor is seised or possessed at the time ; and does not operate to pass or bind an interest not then in existence. The bargain between the parties proceeds upon this view ; BY WAT OP ESTOPPEL OR EBBUTTER. 447 It sometimes happens that a purchaser, in giving to his vendor a mortgage for the purchase-money, is required to insert in it and the consideration is regulated in conformity with it. If otherwise, and the vendee has contracted for a particular estate, or for an estate in fee, he must take the precaution to secure himself by the proper covenants of title. But this principle is applicable to a deed of bargain and sale by release or quitclaim, in the strict and proper sense of that species of conveyance. And, therefore, if the deed bears on its face evidence that the grantors 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 the technical sense of the term, stUl the legal operation and efi'ect of the instrument will be as binding upon the grantor and those claiming under him, in respect to the estate thus described, as if a formal covenant to that effect had been inserted ; at least so far as to estop them from ever afterwards denying that he was seised of the particular estate at the time of the conveyance." And after referring to the authorities of Doe d. Marchant v. Krriugton, 8 Scott, 210; Bowman v. Taylor, 2 Ad. & Ellis, 278 ; Fairbanks v. Williamson, 7 Greenl. (Me.) 9(3 ; and Right v. Bucknell, 2 Barn. & Adolph. 281 {supra, p. 385, n. 3), the opinion thus continues : "The principle deducible from these authorities seems to be, that whatever may be the lorm or nature of the conveyance used to pass real property, if the grantor sets forth on the lace of the instrument, by way of recital or averment, tnat he is seised or possessed of a particular estate in the premises, and which estate the deed purports to convey, or, what is the same thing, if the seisin or possession of a particular estate is affirmed in the deed, either in express terms or by necessary implication, the grantor and all persons in privity with him shall be estopped Irom ever afterwards denj'ing that he was so seised and possessed at the time he made the conveyance. The estoppel works upon the estate, and binds an after-acquired title as between parties and privies. The reason is that the estate thus affirmed to be in the party at the time of the conveyance must necessarily have, inliuenced the grantee in making the purchase, and hence the grantor and those in privity with him, in good faith and fair dealing, should be forever thereafter precluded from gainsaying it. The doctrine is founded, when properly applied, upon the highest principles of morality, and recommends itself to the common sense and justice of every one. And although it debars the truth in the particular case, and therefore is not uufrequently characterized as odious, and not to be favored, still it should be remembered that it debars only in the case where its uttei-ance would convict the party of a previous falsehood would be the denial of a previous affirmation upon the faith of which persons had dealt, and pledged their credit or expended their money. It is a doctrine, therefore, when properly understood and appUed, that concludes the truth in order to prevent fraud and falsehood, and imposes silence on a party only when in conscience and honesty he should not be allowed to speak." This decision was cited with approbation in the recent case in the same court, of French v. Spencer, 21 How. 240 ; as also in Gibson v. Chouteau, 39 Mo. 666 ; and Clark v. Baker, 14 CaL 629 ; Calder v. Chapman, 2 P. F. Smith (Pa.), 359, 448 THE OPERATION OP COVENANTS FOR TITLE general covenants for the title, and it has been at times urged that in the event of a failure of title or eviction of the mortgagor, he is supra, p. 435. And in recent cases in Mississippi and New York, the same view of the law has been practically applied. Thus in Nixon v. Carco, 28 Miss. 426, Carco being in possession of lots to which he had no title, conveyed them to the grantors of the complainants by an instrument not under seal, and con- taining no covenants whatever. Subsequently a patent was granted to him for these lands, and the complainants filed a bill against his heirs to enjoin the latter from setting up the title which accrued by the patent, and it was held that the complainants were entitled to the relief prayed for. " It is said that the instru- ment of sale executed by Carco," said the court, " is not binding on his heirs, because it is not executory and contains no covenant of warranty. If the instru- ment purported to be, or was in fact, a mere quitclaim of an interest in the land not then in esse, the authorities cited would be pertinent to show that the heirs were not estopped by the act. But it is admitted to have been intended as a valid and sufficient sale ; that the right intended to be sold was a subsisting equitable one, and that the sale was not void for illegality. It purports to have been made for a valuable consideration, and to be a conveyance of his right ; and it is manifest that the present claim of his heirs is utterly inconsistent with the right intended to be conveyed by him. If it were a formal bargain and sale, there can be no pretence but that it would estop the heirs ; and it is con- ceded that it was intended as such. It must therefore be considered as having that effect in equity, and fall within the general rule that the heir cannot set up a subsequently acquired title against the deed of bargain and sale of his ancestor." So in Doyle v. Peerless Petroleum Co., 44 Barb. S. C. (N. Y.) 240, where Suggett, having an equitable title to certain lands, conveyed them in fee to the plaintiff, and subsequently acquired the legal title, which he conveyed to the de- fendants. Whether these conveyances were with or without covenants is not stated, and is immaterial in the opinion of the court, who decided that Suggett on acquiring the legal title held it in trust for the plaintiffs, and that the defend- ants, having taken the legal title with full knowledge of the equities of the parties, must be substituted in the place of Suggett, and were, therefore, ordered to convey and release to the plaintiffs their interest in the land. See also Long Island R. K. v. Conklin, 32 id. 388 ; Kilmer v. Wilson, 49 id. 88. So in Temple v. Partridge, 42 Me. 56, where in an action on the case (in the nature of a writ of deceit) the plaintiff proved that the defendant was her agent, and by false representation as to the value of the land induced her to sell it to him at an under value. The defendant had subsequently resold the land at an advanced price with covenants for title, and offered to prove that the price he paid the plaintiff was a full one, by reason of a prior incumbrance in the chain of her title ; but the court held that the defendant was estopped by the cove- nants which he had given from showing that they were untrue. So in Potter v. Potter, 1 R. I. 43, a widow entitled to dower in the estate of her deceased husband married a second time. The real estate of the first hus- band was sold by his administrator for the payment of his debts, she not joining BY WAY OP ESTOPPEL OR REBUTTER. 449 estopped by these covenants from availing himself of any indemnity or relief to which he would otherwise be entitled by virtue of his vendor's covenants to himself. This doctrine is sought to be based upon the principle that " estoppels should be reciprocal," ^ but has no foundation either in reason or authority.^ Although the question was left undecided in a case in Massachusetts,^ yet in one more recent,* it was held that the law of estoppel was inappli- cable to such a case. The principle was stated with clearness in a case in New Hampshire,^ where in a suit brought by a mortgagor upon covenants contained in a deed made to him on the same day by the mortgagee, the court said : " The plaintiff's covenant is a direct allegation that there was no incumbrance when he made his deed, but it is no admission that there was no incumbrance when the defendant made Ms deed. How does the covenant estop him from showing that there was no incumbrance at the date of his own deed in a suit against him on his covenant ? The defend- ant's deed must have preceded the plaintiff's deed. A warranty of title by the plaintiff does not prove that the defendant had title when he conveyed, for the plaintiff might then, or immediately in the deed. The title afterwards came to the second husband, who afterwards conveyed the same with a covenant of warranty. In an action of dower brought by the husband and wife against the purchaser from the former, it was held that they were estopped by his covenants from claiming dower during the continuance of their marriage. It was urged that this was not a covenant between the same parties, — that the wife had made no covenants with her husband which estopped her. " That is true," said the court, "but the husband by the marriage gains a right to the possession and use of the estate ; such an interest and title during the marriage as enables him to control it. He has a 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 participated in the consideration received by her husband for the estate." ' In Cross V. Robinson, 21 Conn. 387, where 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 title in the mortgage from denying the title of his mortgagee. Care should perhaps be taken in the application of this case in practice. " In Lot V. Thomas, Penn. (N. J.) 300, the court said: "If this doctrine were true. Lord Coke was not only justified in saying that estoppels were odious in law, but he might have gone further and added that they were detestable.'' " Fitch V. Seymour, 9 Met. (Mass.) 468. * Sumner v. Barnard, 12 id. 461. » Haynes v. Stevens, 11 N. H. 32. 29 450 THE OPERATION OP COVENANTS FOR TITLE after, liave purchased in an opposing title, or removed an incum- brance. The fact that the plaintiff had a title when he thus recon- veyed is perfectly consistent with the fact that the defendant had not a title when he conveyed to the plaintiff. Could it be said, if the defendants had mortgaged the land and then conveyed to the plaintiff, who mortgaged to the defendant, and then the plaintiff had extinguished the first mortgage, that the plaintiff should not recover of the defendants the sum he had thus paid, because his mortgage contained a covenant against incumbrances? True, he covenants against incumbrances, l)ut it is against those of his own creation, and not such as the defendants may have charged upon the land." So in a case in Maine,^ one sold land with a general covenant of warranty, taking a mortgage for the purchase-money which contained a similar covenant. The mortgage was subse- quently assigned, and afterwards foreclosed. The mortgagee died insolvent, when his widow, who had not joined in the original con- veyance, recovered her dower, whicli was paid by the owner of the land, who then sued on the covenant in the mortgage. Bnt the court, in giving judgment for the defendant, said that when both a deed and the mortgage for the purchase-money " contain covenants of warranty, the covenants are not considered to be mutually acted upon each by the otlier ; those in the mortgage do not estop the party claiming to recover upon those in the absolute deed.^ The grantor in the absolute deed liad sold tlie land ; the mortgagee had pledged it only, for the security of the purchase-money. By tlie sale the grantor received a consideration, and is bound by his cov- enants to indemnify the grantee for all defects in the title, and for incumbrances existing at the time of the conveyance.^ As between these parties, the purcliaser i-eally pledges nothing but the interest which he obtained under the deed to him, and is answerable to him for no imperfection in the title existing before the conveyance. If the mortgage is redeemed, it has discharged its ofi&ce as security, and ceases to be operative. If it is foreclosed, the title which passes by the absolute deed is restored to the grantor or those who claim under him. And the one liaving the mortgagee's right after foreclosure of the mortgage cannot be allowed to recover damages for a breach of the covenants therein made by the mortgagee, or ' Smith i>. Canneli, 32 Me. 125. ^ Citing Browa v. Stapk-s, 28 id. 497. ' Citing Haynes v. Stevens, 11 N. H. 28. BY WAY OP ESTOPPEL OR REBUTTER. 451 existing at the time of his conveyance; for the effect of such re- covery would be to obtain all that he parted with in the conveyance and the value of the incumbrance, whicli he is relieved from removing by the foreclosure. Such consequence would be un- just." And the law as thus stated is supported both by reason and authority.^ Where, however, in a case in Massachusetts, the grantee in a deed containing covenants for title had mortgaged his estate to his grantor, and afterwards, by giving the latter possession vmder the mortgage, became his tenant, and was evicted by an elder title, it was lield that the former was not entitled to sue upon the covenants in the deed to himself while such a relation between the parties continued unchanged ; the eviction had not been oi his possession, but of that of his grantor and mortgagee.'' The rule which in this country sanctions the admission of evi- dence to show that the consideration of a purchase was in reality greater or less than that expressed in the deed, has already been adverted to.^ But in New Jersey the rule has been carried some- what farther than merely to sanction the admission of evidence to increase or diminish the consideration as to amount.* Tlie plaintiff conveyed land which he had previously mortgaged, and having, ' Hubbard v. Norton, 10 Conn. 433 (but see and consider Cross v. Robinson, 21 Conn. 387, cited supra, p. 449) ; Hardy v. Nelson, 27 Me. 528; Brown v. Staples, 28 id. 497 ; Sumner v. Barnard, 12 Met. (Mass.) 461 ; Hancock v. Carl- ton, 6 Gray (Mass.), 61; Pike v. Goodnow, 12 Allen (Mass.), 474; Lot o. ■ Thomas, Penn. (N.J.) 300; Geyer v. Girard, 22 Mo. 160; Connor v. Eddy, 25 id. 72, where the text was cited, and it was said that " the law of estoppel has no application in such cases." So, " if a man makes a feoffment with warranty, who enfeoH's the first feoffor upon condition that that warranty remains, and he shall vouch by reason of the first warranty ; " Bointon & Chester's case, cited in Rolls & Osborn's case, 4 Leon. 251. So in Co. Litt. 390, it is said, "if a man make a feoffment 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 to one and his heirs and assigns, and the feoffee re-enfeoffeth one of the feoffors, the warranty doth also remain.'' So, it was held in the case of Kellog v. Wood, 4 Paige (N. Y.), 518, that a general warranty in a reconveyance made by a vendee to his vendor will extend only to incumbrances suffered by the former while he held the estate ; see also Ingalls «. Cooke, 21 Iowa, 560. a Gilman «. Haven, 11 Cush. (Mass.) 330. * Supra, p. 268 et seq. ' BoUes V. Beach, 2 Zabr. (N. J.) 680. 452 THE OPERATION OP COVENANTS FOR TITLE after the sale, discharged the incumbrance, sued the purchaser for its amount, on the ground that by an agreement between them the latter expressly agreed to pay off the mortgage. It was urged for the defendant that the plaintiff was estopped by his covenant against incumbrances from proving the existence of the mortgage, or that the defendant undertook to pay it ; but the court held (the Chancellor and three of the judges dissenting) that, in the first place, the evidence offered was merely to show the nature and ex- tent of the payment of the consideration, and therefore came within the doctrine of the American authorities, and, secondly, that the law of estoppel could not apply, as it was said that the question was one merely collateral to the deed, the action not being founded directly upon it. So, in Massachusetts,^ where one having con- veyed land with a covenant against incumbrances, sued his pur- chaser in assumpsit for taxes in arrear prior to the date of the deed, on the ground that, by the terms of sale, the latter had agreed to pay them, the court below rejected the evidence as inadmissible to contradict the covenant, but the judgment was reversed, and it was held that the tendency of the evidence was to prove either that tliere 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, as the defendant had previously become bound to pay the taxes. In neither case, therefore, did the evidence vary or contradict the terms of the covenant. If, however, it were not so, the objection would not be applicable to the present case, in which the question as to the construction and effect of the covenant was not raised. It was not, therefore, it was said, necessary for the court to give a decided opinion upon the question whether, in an action for the breach of the covenant, the evidence rejected in this case would be admissible or not.^ But the law had been more strictly held in that State in an earlier case of some apparent hardship.^ A testatrix sold land to one whom she afterwards appointed her executor, covenanting that she was lawfully seised, had good right to convey, and that the premises were free from incumbrances. The purchaser being evicted after her death, credited himself in the settlement of the estate, with $1,000 as damages arising from a breach of these covenants, and ' Preble v. Baldwin, 6 Cush. (Mass.) 649. " For the cases upon this point see supra, p. 117. ' Eveleth v. Crouch, 15 Mass. 307. BT WAY OF ESTOPPEL OB REBUTTER. 453 in reply to proof that he had himself formerly conveyed the same land to the testatrix with similar covenants, and that the ad- verse title was paramount to his own originally and was covered by the covenants he gave, offered to prove that when he orginally purchased it was merely as agent for the testatrix, — that the con- sideration was paid by her, — that he bought in pursuance of an agreement with her, and conveyed to her without receiving any consideration whatever. It was hewever held that " to admit the evidence offered would be to permit him directly to contradict his deed, in that he declared himself to be the owner of the land and to have lawful right to convey it, and his express and unequivocal covenants would be defeated by verbal declarations. ... If the appellant suffers, it is because he was incautious in the mode of conducting his business." So, in New York,^ it was held that where one had conveyed in fee witli a covenant of warranty, he was estopped from alleging that he had such an interest in the con- sideration-money as would raise a resulting trust in his favor. The preceding classes of cases have all turned upon the estoppel of the grantor. A few, however, may here be noticed respecting the estoppel of the purchaser caused by his acceptance of the con- veyance. In some early cases in New York, it was held that the accept- ance of a grant was a conclusive admission of the title of the grantor, and tlierefore that in an action of dower brought by the widow of the latter, the defendant was estopped from showing that the husband's title was defective,^ and the same rule lias been also occasionally applied elsewhere.^ ' Squire v. Harder, 1 Paige (N. Y.), 495. ' Hitchcock V. Harrington, 6 Johns. 290 ; Collins v. Torry, 7 id. 278 ; Davis V. Darrow, 12 Wend. (N. Y.) 65 ; Bowne v. Potter, 17 id. 164 ; Sherwood v. Vandenburgh, 2 Hill (N. Y.), 308. " The objection of the want of seisin in the husband," said Kent, C. J., in Hitchcock v. Harrington, supra, " cannot be re- ceived from the defendants, as they hold under the husband by virtue of convey- ances from his son and heir-at-law. The husband died in possession, and it ought not to be permitted to the heir, or person claiming under him and enjoying the estate, to deny the seisin of the ancestor. . . . The tenant claims title under the seisin of the husband, and cannot be permitted to avail himself of this defence in bar of the demandant's right of dower." ' Gayle u. Price, 5 Rich. Law R. (S. C.) 525 ; Hains v. Gardner, 1 Fairf. (Me.) 383 ; Hamblin v. Bank of Cumberland, 19 Me. 69 j Stimpson v. Thomaston 454 THE OPERATION OF COVENANTS FOR TITLE In Massachusetts it was, however, said that " the grantee may be permitted to show that his grantor was not seised, as is every day allowed in actions of covenant ;" ^ and in England^ it was held that the acceptance of a conveyance did not estop the grantee, in an action of dower brought by his grantor's widow, from show- ing tliat the premises were leaseliold, instead of freehold, as de- scribed in the deed. And in New York, moreover, very soon after the decisions referred to, their rule was followed in one case with reluctance, and solely on the ground of adherence to precedent,^ and soon after, it was held that whatever might be the rule where possession had accompanied the deed, yet where there was no such possession there would be no estoppel.* In the later case, however, of Sparrow v. Kingman,^ the whole doctrine was recon- sidered on the grounds both of principle and authority, and the prior decisions overruled. The doctrine as given by Coke that an estoppel was caused " by the acceptance of an estate," ^ was properly referred, in its application, to the system of common-law assurances by feoffment, " which operated on the possession, and if correctly pursued, always passed a freehold or fee-simple to the feoffee. But / in the case of a conveyance by grant, bargain and sale, or release, the very point is whether an estate existed in the grantor, and has passed, to be accepted." The subject was soon after again elab- orately reviewed in two cases,' and the same view of the law taken, and the case of Sparrow v. Kingman was subsequently affirmed on error,^ so that the law may now be considered as settled in New York, in accordance with principle, that the mere acceptance of a deed, whether with or without covenants, will not estop the grantor from controverting his grantor's title, either as against himself or Bank, 28 id. 259, where it was held that where two grantors conveyed land, with a csvenant that they were lawfully seised thereof and would defend the s.arae, 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 seised of a greater proportion, and the deceased of a less one than an undivided moiety thereof. ' Small V. Proctor, 15 Mass. 499 ; Fox v. Widgery, 4 Greenl. (Me.) 218. 2 Gaunt V. Wainman, 3 Bin^. N. C. 69. 2 Sherwood v. Vanderiburgh, 2 Hill (N. Y.), 307. ' Osterhout V. Shoemaker, 3 Hill (N. Y.), 618. '• 1 Comst. (N. Y.) 245. « Co. Litt. 352 a. ' AveriU v. Wilson, 4 Barb. S. C. (N. Y.) 180; Finn u. Sleight, 8 id. 406. » Kingman v. Sparrow, 12 Barb. S. C. 208. BY WAT OF ESTOPPEL OR REBUTTER. 455 any one claiming under him.^ And the law has been held the same way in Michigan,^ Missouri,^ and Rhode Island.* So, in Massa- chusetts, it has been held that the acceptance of a deed with cove- nant of general warranty of upland on the shore, and of another deed at the same time from the same grantor of the flats in front thereof, with a limited covenant of warranty, did not estop the grantee from claiming title to the latter.^ It has, however, been held that where at the time of the convey- ance the purchaser already has in himself the valid title to the premises, he is estopped by his acceptance of the conveyance from suing on the covenants it contains,® for " they only extend to a title ' Of course, however, such a rule does not apply in the case where a vendee obtains and keeps possession of land under a contract of sale which is not ful- jilled; as he will, of course, under such circumstances, be estopped from setting up a defect in the title, either as a defence to an ejectment or 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 Lead. Cas. = Clee V. Seaman, 21 Mich. 287. •" Macklot V. Dubreuil, 9 Mo. 483 ; Joeckel v. Easton, 11 id. 118 ; Landes v. Perkins, 12 id. 239 ; Blair v. Smith, 16 id. 273 ; Cutter v. Waddingham, 33 id. 282. ■■ Gardner v. Greene, 5 R. I. 104. In this case it was held that the acceptance of a deed-poll with covenants of warranty, followed by possession by the gran- tee, did not estop the latter from disputing the grantor's seisin prior to the conveyance. "A deed-poll," said Ames, C. J., who delivered the opinion, "can never operate by way of estoppel by deed against the grantee, for the simple reason that his seal is not to it ; Co. Litt. 47 &, 363 b. It is equally well settled that an estoppel in pais is created by the acceptance of possession under a deed only when the deed is accepted in one of those relations which imply an obliga- tion to return the possession, and a sort of allegiance to him under whom, or under whose interests, it is held ; such as in the relation of trustee and cestui que trust, landlord and tenant, mortgagor and mortgagee. It is an extension of such an estoppel quite beyond its reason to apply it to the ordinary relation of grantor and grantee where the latter, claiming by virtue of his own purchased right and having paid his money for his title, is under no obligation whatever to his grantor, or to the widow claiming by virtue of his grantor's seisin in regard to it. Indeed it would seem little short of an absurdity to hold that a party receiving possession under a deed is equitably estopped, as long as his possession continues, to deny the seisin of his grantor, because along with the possession he took covenants of warranty to guard him, as far as damages might, against the contemplated possi- bility that his grantor might not ultimately prove to be entitled to that which he affected to convey." * Porter v. Sullivan, 7 Gray (Mass.), 441. « Fitch V. Baldwin, 17 Johns. 166 ; Beebe v. Swartwout, 3 Gilm. (111.) 179 ; Furness u. Williams, 11 111. 229. 456 THE OPERATION OP COVENANTS FOB TITLE, ETC. existing in a third person which may defeat the estate granted by the covenantor, — tliey do not embrace a title already v.ested in him, and it never can be permitted in a person to accept a deed with covenants of seisin, and then turn round upon his grantor and allege that his covenant is broken, for that at the time he accepted the deed he himself was seised of the premises." ^ In a late English case it seems to have been doubted whether, when a deed contained a recital of title, the purchaser, upon being evicted, was not estopped from denying the accuracy of such re- cital in an action on his covenants for title ;^ such a doctrine, how- ever, where the recital was intended to be the statement of one party only, might operate with injustice, and in a subsequent case it was expressly denied, and it was held that when a recital was in- tended to be a statement which all the parties to tlie deed have mutually agreed to admit as true, it was an estoppel upon all, but when intended to be that of one party only, the estoppel was con- fined to that party. s So in Mississippi,* it was held that a purchaser who had received a deed with covenant of warranty, " excepting only the widow's right of dower," was not estopped by the excep- tion from denying the fact of the marriage. ' Fitc;h V. Baldwin, uhi supra. " Young V. Raincock, 7 C. B. 310. 3 Stroughill V. Buck, 14 Q. B. 781. ■• Stevenson v. McReary, 12 Sm. & Marsh. (Miss.) 57. HOW COVENANTS FOR TITLE MAT BE LIMITED OR QUALIFIED. 457 CHAPTER XII. IMPLIED COVENANTS FOE TITLE, AND HOW COVENANTS MAY BE LIMITED OE QUALIFIED. At common law and by statute, certain covenants for title were implied in the creation and transfer of estates both of freehold and of leasehold. Of these, the earliest was, of course, warranty, which, as has been already seen, was by the old common law an incident to the creation or transfer of every estate as the return for homage.^ The lord was bound to warrant or insure the fief against all per- sons whomsoever claiming by title, and in case of its loss to re- place it with anotlier. And when, somewhat later, it became usual to authenticate the creation or transfer of estates by charters or deeds, a warranty was, in 1ihe case of a freehold, implied from the word of feoffment, dedi, but from no other word,^ and in the case of a leasehold a covenant was implied from the word of leasing, demisi, or from any equivalent word, such as concessi or the like.^ So too in the case of an exchange, a warranty was implied from the word of exchange, excamhium, but from no other word,* and finally, in the case of a partition, which it is familiar was only allowed by the common law as between parceners, a warranty was indplied from ' Supra, p. 2. ' Co. Litt. 384 a ; for although in the statute de bigamis, to be presently no- ticed, "dedi et concessi are coupled together, yet these words, ratione doni proprii, do appropriate the warranty to dedi only, and agreeable to this exposition in our books is the common and constant opinion of learned men at this day ; '' 2 Inst. 276 ; see infra, p. 4o9, for some dicta to the contrary, now overruled. " Co. Litt. 45 6 ; Andrew's case, Cro. Eliz. 214 ; Nokes's case, 4 Coke, 81 ; Spencer's case, 5 Coke, 16 ; Touchstone, 160, 165. In Style v. Hearing, Cro. Jao. 73, it was "resolved, by all the justices that upon the words demise and grant, without other words which comprehend any warranty in them, this action well lies." * Co. Litt. 61 6, 884. 458 IMPLIED COVENANTS, AND HOW COVENANTS the partition itself ; ^ and in botli of these last cases — exchange and partition — not only was there an implied warranty, but an implied condition of re-entry, which, in case of the eviction of either party from the land taken in exchange or allotted in partition, gave to the party evicted a right of re-entry on the other portion.^ ■ Co. Litt. 174 ; Bustard's case, 4 Coke, 121 ; AUnatt on Partition, 158 ; Mil- ler on Partition, 245. ' It is true tliat it has been suggested by distinguished authority that in the cre- ation of a freehold there were other words besides those already mentioned which implied a warranty. Lord Hardwicke is reported to have said, in Mann v. Ward, 2 Atk. 228 : ' ' When a man has granted and conveyed, be the right real or pretended, the very words grant and convey imply a warranty and a covenant for quiet enjoy- ment; " and, some years after, he again remarked, in Clarke v. Samson, 1 Ves. 100 : " It is said the word grant of itself imports a covenant ; which it does at law, but that is where there is no particular covenant, which there is here ; " and Lord Eldon, moreover, when Chief Justice of the Common Pleas, observed in Browning U.Wright, 2 Bos. & Pull. 13 : " Now these words granted, bargained, sold, enfeoffed and confirmed certainly import a covenant in law, the effect and meaning of which would be affected by the subsequent words of the indenture." To which Buller, J., added: "According to the ancient mode of conveyance, deeds were confined to a very narrow compass. The words grant and enfeoff amount to a general warranty in law, and have the same force and effect. The covenants, therefore, which have been introduced in more modern times are intended for the protection of the party conveying, and are ^introduced for the purpose of qualifying the general warranty which the old common law implied ; " and this, he added, had been settled since Nokes's case. But all these expressions were dicta, and no authority whatever was cited in support of them, except by Mr. Justice Buller. Nokes's case (4 Coke, 81) was not a conveyance of a freehold, but a demise of a term; and when it is there said that " for this covenant in law upon these words, demise, grant, &c., the assignee shall have a writ; of covenant," this is applied only to the case of a lease ; see infra. The question whether the words grant and enfeoff created either a covenant or a warranty in the case of a freehold, was presented in Brown v. Haywood, 3 Keb. 617; s. c. Freem. 414, and decided in the negative; and in Spencer's case, 6 Coke, 16, "it was resolved by Wray, C. J., and the whole court, that this word (concessi or demisi) , in case of a freehold of inheritance, does not import any warranty;" see also Vin. Abr. Covenant, C. 19. Mr. Evans, in a note to Stat. 4 Edw. I. (1 Coll. of Statutes, 192), observes, " that it is singular that a judge of such eminence as Mr. J. Buller should have stated that the words grant and enfeoff' amount to a general warranty in law, and have the same force and effect, and sliould 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. But, as has been said, none of these expressions were necessary to the decisions, and in the year 1804 the question was directly presented in New York in Frost u. Raymond, 2 Caines, 188, where it was con- clusively shown that the words grant, bargain, sell, alien and confirm imply no FOR TITLE MAT BE LIMITED OR QUALIFIED. 459 Sticli was, briefly, the common law as to implied warranty, which was termed " warranty in law." Its effect in these four classes of cases will be considered after we have referred to the statutory alteration of the common law. The first alteration of the law was by the statute de Mgamis, which, in the year 1276, limited the warranty implied from the word dedi to the life of the grantor in all cases in which homage was not an incident of the tenure.^ Then when, in 1290, the statute of quia emptores practically put an end to homage as an incident of tenure, it of course followed that in every case coming within the statute, the word dedi implied a warranty during the life of tlie grantor and no longer.^ In cases, however, in which privity of estate and tenure still sub- sisted, as for example where any reversion was left in the donor, the warranty remained as at common law, and therefore " if a man make a gift in tail, or a lease for life of land by deed, or without warranty whatever by the common law in the creation of a freehold, a warranty being implied only from the word do or dedi. After referring to the warranty implied by the word grant in case of a leasehold, Kent, C. J., said; "We are not able to assign a very solid reason for this distinction between the force and effect of the words 'give ' and 'grant.' It arose from artificial reasons derived from the feudal law. The distinction is now become merely technical, but it is sufficient that it clearly exists, and we are certainly not at liberty to confound the words or change their established operation. The other words in the deed, ' bargain, sell, alien and confirm,' have never been considered as implying any covenant whatever in any case. The only dicium that appears to oppose the law as now laid down is that of Lord Eldon in the case of Browning K.Wright," and to this view of the law consistent assent has been given in this country ; Young v. Hargrave, 7 Ohio, 394 (part 2, p. 63) ; Blacks. Gilmore, 9 Leigh (Va.), 449 ; Gee V. Pharr, 5 Ala. 588 ; Allen v. Sayward, 5 Greenl. (Me.) 230 ; Bates v. Foster, 59 Me. 158 ; Rickets t. Dickens, 1 Murph. (N. C.) 346 ; Deakins v. HoUis, 7 Gill & Johns. (Md.) 311 ; Huntly v. Waddell, 12 Ired. Law (N. C), 33. Lord Eldon's dictum was, indeed, directly approved by Huston, J., in Christine v. Whitehill, 16 Serg. & Rawle (Pa.), Ill, but the case was decided by a bare ma- jority of the court, and was overruled when it came again before the court (Whitehill v. Gotwalt, 3 Pa. R. 326), in an able opinion delivered by Kennedy, J. ' Supra, p. 2. ^ Supra, "p. 5 ; and hence the introduction of express warrranties, by the word warrantizo, became common. Indeed, says Blackstone, " In other forms of alien- ation gradually introduced since that statute, no warranty whatsoever is implied, they bearing no sort of analogy to the original feudal donation. And therefore in such cases it became necessary to add an express clause of warranty to bind the grantor and his heirs, which is a kind of covenant real, and can only be cre- ated by the verb warrantizo, or warrant ; " 2 Com. 300. 460 IMPLIED COVENANTS, AND HOW COVENANTS deed, reserving a rent, or of a rent service by deed, this is a war- ranty in law, and the donee or lessee being impleaded shall vouch and recover in value." ^ Of course the old common law knew nothing of a warranty being limited to the acts of the lord only or of those claiming under him, — he was bound to warrant and defend the fief against all per- sons claiming it under paramount title,^ — and when, in later times, warranty was limited to the acts of the grantor himself, or sometimes of particularly named persons, yet this express warranty did not limit or restrain the general implied warranty, and " dedi was a general warranty during the life of the feoffor."^ And, equally of course, the remedy upon an implied warranty was ' Co. Litt. 384 6; Fitzh. Nat. Brev. 134, and the burden of this warranty bound the heirs of the grantor and the assignees of the reversion, and its benefit enurt'd to the assignees of the grantee. ' Touchstone, 166, 167, but not, of course, against trespassers ; see supra, p. 133. ^ " For if a man make a feoffment in deed by dedi, and in the deed doth war- rant the land against J. S. and his heirs, yet dedi is a general warranty during the life of the feoffer ; " Co. Litt. 384; and so says Coke, in Nokes's case, 4 Coke, 81, " I heard the Lord Dyer and the whole Court of C. P. (Hil. 14 Reg. Eliz.) resolve that if a man make a feoffment by this word dedi, and with express warranty in the deed, he may use the one or the other at his election." So in Rant V. Cock, Cro. Eliz. 864; Trenchard v. Hoskins, Litt. 64; Johnson v. Procter, 1 Btdst. 3 ; Butler's note to Co. Litt. 384 a. It was nevertheless held in Kent v. Welch, 7 Johns. (N. Y.) 259, that the covenant implied by the word "give"' was restrained by an express covenant for title which the deed might contain, and the decision was based upon Nokes's case, and similar decisions were made in Morris v. Harris, 9 Gill (Md.), 27, and Bricker v. Bricker, 11 Ohio St. R. 240 ; and see Weiser u. Weiser, 5 Watts (Pa.), 284. Rhea y. White, 3 Head (Tenn ), 126, contains only a dictum to that effect; the sale was of a slave. Nokus's case, however, decided that implied covenants in a leasehold were, as will be presently seen (infra), restrained by express covenants, but this doctrine was never applied at common law to the implied warranty of a free- hold. In Dow V. Lewis, 4 Gray (iVIass.), 473, it was said, " That in a feoffment at common law, the word dedi, ' give,' implied, in the absence of express cove- nants, a warranty during tbe life of the grantor, is well settled ; 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 by statute, and in which the grantor neither assumes to have nor to convey any estate, title or interest of his own ; " and hence it was held that no ■warranty could be implied from the use of this word in a deed from a sheriff or other officer of the law (see supra, p. 51) ; and in Webster v. Conley, 46 111. 14, this case was approved, and the same doctrine applied to the case of lease made without authority by a guardian. FOR TITLE MAY BE LIMITED OR QUALIFIED. 461 the same as that upon an express warranty,' that is to say, by voucher in some cases, and \>y warrantia chartce in others;^ but there was a diiference between them as to who were entitled to their benefit. In all cases coming within the statutes de higamis and quia emp- tores, as the warranty endured no longer than the life of the grantor, his heir was not bound.^ As to the benefit of the warranty, this descended in the case of implied warranty upon the heir of him who had received the land if the latter died in the lifetime of his warrantor,* but it did not pass with the land to an assignee of the warrantee ; ^ in other words, the implied warranty did not run with the land. In the case of express warranties, they ran with the land for its pro- tection although assigns were not named,^ but as respects the heir of either warrantor or warrantee, neither the burden nor the benefit of the warranty descended unless the heir were expressly named.'' With respect to estates less than freehold, covenants for title were from the earliest times implied not only from the words of leasing, " such as demist, concessi, or the like," ^ but even from ' Fitzh. Nat. Brev. 312. ' See supra, p. 12. ' Tliat is to say, the heir was not liable unless the eviction were in the time of the ancestor. But if the ancestor had died after the eviction, no doubt recovery in value could have been had against the heir. ■* Co. Litt. 384. * For in Spencer's case " it was resolved that if a man make a feoffment by this word dedi, which implies a warranty, the assignee of the feoffee shall not vouch ; " 5 Coke, 17. « • Supra, Ch. I. ' Co. Litt. 384 6. ^ Supra, p. 467 ; and on the other hand the words yielding and paying implied also a covenant on the part of the lessee to pay the rent reserved ; Butler's note to Co. Litt. 384 a ; Bac. Abr. Covenant, B. ; Koyeru. Ake, 3 Pa. R. 465. Some old cases are to be found which decide that these words have a still larger significa- t.on, and that they make an express covenant; Hellier «;. Gaspard, 1 Sid. 266; Newton v. Osborn, Styles, 387 ; Porter v. Swetnam, id. 406-431 ; but even in their own day the authority of these cases was doubted; Anon. 1 Sid. 447; 1 Saund. 241, note ; Harper v. Burgh, 2 Lev. 206 ; and later cases have since con- sistently held that the covenant thus created is not express but implied ; Webb V. Bussel, 3 Term, 402 ; Mills v. Auriol, 4 id. 98 ; Vyvyan v. Arthur, 1 Barn. & Cress. 410 ; Iggulden v. May, 9 Ves. 330 ; Church v. Brown, 15 id. 264 ; Kunckle V. Wynick, 1 Dall. (Pa.) 307; Kimpton v. Walker, 9 Vt. 191. This question has practically some importance, as, if the covenant is to be deemed an express 462 IMPLIED COVENANTS, AND HOW COVENANTS the relation of landlord and tenant,^ and such is the law at the pres- ent day ,2 unless where, as in sonae of the United States, it has been one, the lessee is still bound to his lessor for the rent, notwithstanding an assign- ment of the term and acceptance of the rent by the lessee from the assignee ; Mills V. Auriol, supra; Ghegan v. Young, 11 Harris (Pa.), 18; while if the cove- nant is merely implied, the liability for rent is but coextensive with the occupa- tion, and the lessee is not liable for the rent accruing after his assignment to another, and the acceptance of the rent by his lessor from the latter ; Walker v. Physick, 5 Barr (Pa.), 202 ; Fanning v. Stimson, 13 Iowa, 43. The remarks of Baron Piatt in his work on Covenants, p. 10-18, in opposition to the generally received opinion that covenant will lie against a grantee by deed- poll, by reason of his acceptance of the estate, were approved and applied in Penn- sylvania, where it was held that covenant could not lie against a grantee by deed-poll ; Maule w. Weaver, 7 Barr (Pa.), 329 ; Irish w. Johnston, 1 Jones (Pa.), 488; and see Jenkins v. Robertson, 4 Drew. 477. In Burbank v. PiUsbury, 48 N. II. 475, this point was noticed but not decided. In a case in New Jersey, however, will be found an able examination by counsel of the authorities in opposi- tion to such a conclusion, and a decision accordingly ; Finley v. Simpson, 2 Zabr. (N. J.) 331. But as in Pennsylvania it was formerly common, in cases of sales of land reserving a ground-rent, to have the deeds in duplicate, but executed each by one party only, that is, one executed by the grantor conveying the land, and the other by the grantee covenanting to pay the rent, a statute has pro- vided that " in all cases now pending or hereafter to be brought in any court of record in this Commonwealth to enibr.ce the payment of ground-rent due and owing upon lands or tenements held by virtue of any lease tor 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, administrators or assigns, whether the said premises out of which the rent issues be held by deed-poll or otherwise ; " Act of 2oth April, 1850, § 8. ' See infra. 2 Merrill v. Frame, 4 Taunt. 329 ; Baber v. Harris, 9 Ad. & Ell. 632 ; Wil- liams V. Burrell, 1 C. B. 402 ; Frost v. Raymond, 2 Caines (N. Y.), 194 ; Gran- nis V. Clark, 8 Cow. (N. Y.) 36 ; Barney v. Keith, 4 Wend. (N. Y.) 602 ; Tone V. Brace, 11 Paige (N. Y.), 569 ; Sumner v. Williams, 8 Mass. 201 ; Dexter u. Manley, 4 Cush. (Mass.) 14 ; Knapp «. Marlboro, 3 Wms. (Vt.) 282 ; Maeder v. City of Carondelet, 26 Mo. 115. It has been recently denied in New Hampshire that any such effect can be implied from the words " let and lease ; " Lovering V. Lovering, 13 N. H. 517 ; and the decision is sought to be based upon the ab- sence of these words in the older authorities. The only difference would seem to be that they use the Latin word demisi, of which " I have leased" seems cer- tainly a fair translation (see Maule v. Ashmead, 8 Harris (Pa.), 482) ; and apart from this, the cases use the expressions "grant, demise, e. Gibney {infra), only with the estate out of which the lease is granted." ' Bandy v. Cartwright, 8 Exch. 913. FOR TITLE MAT BE LIMITED OR QUALIFIED. 467 misdescribed the covenant arising out of the relation of the parties.^ So in a case in New York, where premises were occupied under a written agreement to let, not under seal, without any express covenant or the words grant or demise, it was held that no covenant for title could be implied, as it was said that " it never was held that a mere sale or lease imported a warranty of title in the grantor or lessor of real estate, as in the caseof personal ^ropfirty."^^ ._ So in a recent case in New Jersey, where the defendant having contracted to purchase certain premises, rented them by parol to the plaintiff, who went into possession with notice of the defendant's title. The contract of sale was subsequently rescinded, and the plaintiff, being evicted by the owner, brought this action " to re- cover damages for the breach of an oral lease," but upon the trial he was nonsuited, on the ground that the defendant had not, from the mere fact of leasing, agreed to warrant the title, and this was affirmed by the court in banc? ' Leave was, however, granted, on payment of costs, to have a new trial, but it afterwards appearing tliat 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. ^ Baxter v. Ryerss, 13 Barb. (N. Y.) 284; that is to say, a warranty of the title, as distinguished from a covenant for quiet enjoyment; for the New York cases, as do all others, distinctly hold that the latter covenant is implied from the relati(?n of landlord and tenant ; see supra, p. 463. Unless this be borne in mind the student may suppose that a contradiction exists which the cases do not warrant, and this supposition would meet with support from the rather careless language to be sometimes found in opinions. Thus in Banks v. White, 1 Sneed (Tenn.), 614, it was said, " The law does not imply any warranty as to the con- tinuing condition of the property demised. The only implied warranty is as to the title, and any acts by or under the defendant which would affect the use of the property." So in Wade v. Halligan, 16 111. 511, it was said, " There were no express covenants in the lease for quiet possession or enjoyment. Still, the law will imply covenants against paramount title, and against such acts of the landlord as destroy the beneficial enjoyment of the lease." This, however, was rather broadly stated. ' Gano V. Vanderveer, 34 N. J. 293. " The theory of the action," said the court, " was, in a matter of substance, erroneous. The ground of injury to the plaintiff consisted in the failure of the title of his lessor. If such title had been good, it is the plaintiif's contention he could have successfully defended himself and retained the possession of the premises. As the lessor did not have the title, the notion seems to be that an action will arise out of that circumstance. But this is not so. A man does not, when he conveys or leases land, covenant or agree, ipso facto, that the title is good. In the civil law, from an adequate 468 IMPLIED COVENANTS, AND HOW COVENANTS The covenants for title implied from tlie words of leasing differed from tlie warranty implied from the word of feoffment, dedi, both as to source and effect. The former arose from contract — the latter from tenure. The warranty was a real covenant in its strict sense, while on the former the tenant recovered damages as a recompense for the term lost, and not another term in its place. The warranty implied from the word dedi was, moreover, as we have seen, unrestrained by any express warranty which the deed might contain,^ while the covenants implied from the words of leasing fell within the maxim expressum facit cessari taciturn, and were modified or restrained by express covenants. Thus in Nokes' case,^ the lessor, after employing the words demise and grant, added a covenant for quiet enjoyment " without eviction by the lessor or any claiming under him," and it was held that " the said express covenant qualified the generality of the covenant in law, and restrained it by the mutual consent of both parties that it should not extend further than the express covenant," and this is settled law at the present day.^ price a warranty was implied ; but it was to the contrary of this in the common law; Frost v. Raymond, 2 Caines,, 188; Phillips v. Mayor, &c., 2 Vroom (N. J.), 143. In Granger v. Collins, 6 Mees. & Welsh. 458, the Court of Ex- chequer held that no implied agreement for quiet enjoyment would arise from the mere relation of landlord and tenant. The books are full of cases touching the question from what words employed in the creation of a term of jtears a covenant or agreement to warrant the title will be implied. Thus at an early .date, in Holder v. Taylor, Hob. 12, it was decided that the word demisi imports a covenant that the lessor had power to lease. So the word concessi has equal efficiency; Style v. Hearing, Cro. Jac. 73; 1 Saund. 322, n. (2). It has been doubted whether the words ' let and lease ' have any such eli'ect by implica- tion. Now it is evident the reports are full of cases of this sort, and yet they are all obviously idle and nugatory if, by force of the mere creation of a term of years, an agreement to warrant the title will arise. In the present case, the proofs go simply to the effect that the plaintiff became tenant to the defendant of these premises for one year ; from this relationship no contract with respect to the title can be implied ; consequently, on this ground, the plaintitt' was rightly nonsuited." The court also held the lease to be void under the statute of frauds, though whether the plaintiff's possession was under a lease or an agreement to lease was not decided. The exact point decided in the case of Granger v. Collins was not here stated by the court with its usual accuracy. ' Sujjra, p. 460. " 4 Coke, 81. 5 Frontin v. Small, 2 Lord Raym. 1419 ; Merrill v. Frame, 4 Taunt. 329 ; Schlencker v. Moxsy, 3 Barn. & Cress. 789 ; Line v. Stephenson, 5 Bmg. N. C. 183 ; Kean v. Strong, 9 Irish Law R. (Q. B.) 74. In other words, when a lessor FOR TITLE MAY BE LIMITED OR QUALIFIED. 469 Nor, it would seem, will the covenant implied in the creation of a leasehold endure longer than the continuance of the estate out of which it is granted. Thus in an old case,^ a tenant for life having made a lease by the word demist, the lessee was, after the tenant for life and before the effluxion of the term, evicted by the remainder-man, and brought covenant against the executors of the lessor, but it was held that " the covenant in law ends and deter- mines with the estate and interest of the lessor ; " and in a modern case in the Common Pleas a decision was made to the same effect,^ means to limit his liability by binding himself to protect the tenant only against disturbances or defects of title arising from the lessor's own acts and the acts of those who represent or claim under him, and employs a special covenant for this purpose, the law will not render it useless and defeat his intention by overriding it with the more enlarged general covenants which the law otherwise implies from the very words of leasing; Deering v. Farrington, 1 Mod. 113; s. c. 1 Freem. 368 ; 3 Keb. 304 ; Dennett v. Atherton, Law R. 7 Q. B. 316 ; Merritt v. Closson, 36 Vt. 172 ; Tooker v. Grotenkemper, 1 Cin. Sup. Ct. R. 88. ' Swan V. Searles, Dyer, 257 a; 8. c. Benl. & Dal. 150; see also Cheiny v. Langley, 1 Leon. 179. ' Adams v. Gibney, 6 Bing. 656. "That the word demise in a lease for years," said Tindal, C. J., who delivered the opinion, "imports and makes a covenant in law for quiet enioyment by the lessee, at least during the continuance of the estate out of which the lease is granted, is clear from all the authorities, and is admitted by the defendant; but it is contended on his part that such im- plied covenant ceases with his estate, as well upon the ground that it is rather in the nature of an implied warranty than of an implied covenant, as upon the direct authority of decided cases. If it bad been necessary to determine this case upon the gi^ound of distinctions above referred to, considerable doubt would be thrown upon such distinction in the case of a chattel real, by the authority of Co. Litt. 389 a, where it is laid down 'that a warranty cannot be annexed to chattels real or personal ; but if a man warrant them, the party shall have covenant.' We think, however, it is sufficient to say that the cases which have been decided on the precise point now raised are too strong to get over. Such is the case in Dyer, 257 a, determined in Michaelmas Term, 8 & 9 Eliz. The lease in that case, as in the present, was by indenture made by tenant for life, by the word demise. The ouster in that case, as in this, was by the remainder-man, after the death of the tenant for life and before the effluxion of the term. The action in that case also, as in this, was an action againit the executors of the lessor to re- cover damages for the breach of covenant (see the form of the declaration in Bedl. 160). And after two arguments it was held in that case by three of the justices ' that the executors should not be charged by this covenant in law, because the covenant in law ends and determines with the estate and interest of the lessor ; ' also ' that no cause of action is given against the testator in his life- time.' And although one of the justices differed from the rest, yet he admitted if the lease had been by deed-poll instead of by indenture he should have agreed 470 IMPLIED COVENANTS, AND HOW COVENANTS which was cited and approved in Pennsylvania. ^ The implied covenant is therefore obviously more restricted in this respect than an express covenant for quiet enjoyment.^ with his companions, a distinction which is not assented to by the learned re- porter. The same principle is laid down in Hyde v. The Canons of Windsor, Cro. Eliz. 553, and in the case of Bragg v. Wiseman, 1 Brownl. 23, where cov- enant is brought against the executor of the husband upon a lease by husband and wife, and it is laid down ' that a covenant in law shall not be extended to make one do more than he can, which was to warrant it as long as he lived and no longer.' Unless, therefore, some very strong and insuperable objection had been raised to the principle of those decisions, which has not been done in the present case, we think it safer to adhere to them, the doctrine of which has been adopted in books of high authority ; amongst others see Shep. Touch. 160, and Com. Dig. Covenant, C. And no injustice can be occasioned to the lessee by this decision, who must have known from the form of the reservation in the lease that his lessor was no more than a tenant for life, but was contented to accept a lease without an express covenant for quiet enjoyment.'' ' McClowry v. Croghan, 1 Grant (Pa.), 311. " The distinction between an express and an implied covenant was laid down with great clearness in Williams v. Burrell, 1 C. B. 402. A le.ise which was invalid by reason of an excessive execution of a power contained a clause that the said lessor "for himself, his heirs and assigns, the said demised prem- ises, &c., against himself and all other persons, &c., shall and will daring the said term warrant and defend." On the death of the lessor, who was but tenant for life, the lessees were evicted by the remainder-man, and brought 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 covenantor's death his executor is not liable, and Tindal, 0. J., held the following language : " It was admitted on the argu- ment before us, both on the part of the plaintiff and the defendant, that the clause above set forth, being found in a demise not of a freehold interest but of a term for years vOnly, was not strictly and properly a warranty. Indeed, all the author- ities agree upon the point that the warrantee in such case can neither vouch nor bring waiTantia chartce, nor use it by way of rebutter, the ordinary modes by which a warranty is made available when annexed to an estate of freehold of in- heritance ; Co. Litt. 389 a ; Hob. 3. It was also admitted on the part of the defendants that although such clause of warranty, when annexed to tlie demise of a chattel interest, was not strictly and properly a warranty, yet that it amounted to a covenant in law for quiet enjoyment ; but it was at the same time contended by them that it amounted to a covenant in law only ; and that, being a covenant in law, it would extend no further than to protect the estate, which the lessor could lawfully grant ; that is, in this case, a term of years determinable with his own life; whereas, on the part of the plaintiff, it was insisted that the clause in question amounted to an express covenant for quiet enjoyment, and that, being an express covenant, it extended to protect the whole term which was purported to be granted by the lease. And, after hearing the argument, we are of opinion that the construction contended for on the part of the plaintiff is the just and FOR TITLE MAY BE LIMITED OR QUALIFIED. 471 The warranty and condition of re-entry arising at common law from an exchange of lands — implied at first from the exchange itself, proper construction, and that the clause row under consideration operates as a covenant for quiet enjoyment during the whole of the term granted by the lease. For, looking at the words of the warranty, we hold that they do, in their plain and literal meaning, import an agreement 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 down by Chief Baron Comyns in his Digest, tit. Covenant (A. 2), that ' any words in a deed which show an agreement to do a thing, make a cove- nant.' " The distinction between covenants, and the only distinction (so far as relates to the present inquiry), we take to be this, they are either covenants by express words or covenants in law. ' There are two kinds of covenants,' says Lord Coke, Co. Litt. 139 6, ' a covenant in deed and a covenant in law ; ' or, as it is put in Vaughan's Reports, p. 118, ' All covenants between a lessor and his lessee are either covenants in law or express covenants.' And that the covenant now before us does not fall within the class of covenants in law is clear from considering the nature of such covenants. A covenant in law, properly speaking, is an agree- ment which the law infers or implies from the use of certain words having a known legal operation in the creation of an estate ; so that, after they have had their primary operation 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 estate, so by those words already created ; as, if a man by deed demise land for years, covenant lies upon the word ' demise,'' which imports or makes a covenant in law for quiet enjoyment ; or, if he grant land by feoffment, covenant will lie upon the word ' dedi.'' But the argument 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 properties 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 were some rule or principle that all implied cov- enants were covenants in law ; b.ut we think there is fallacy in this argument, from the use of the term ' 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. In some cases that meaning is more clearly expressed, and therefore more easilj' discov- ered ; in others it is expressed with more obscurity, and discovered with a greater difficulty. In some cases it is discovered from one single clause ; in others it is only to be made out by the comparison of different and perhaps dis- tant parts of the same instrument. But after the intention and meaning of thcs parties is once ascertained, after the agreement is once inferred from the words 472 IMPLIED C0YENANT8, AND HOW COVENANTS and, later, from the use of the word excamlium, and no other word — remained unaltered in England until within our own days,^ save, it is supposed, as to the remedy upon it.^ The obvious practi- cal objection to it was that it caused what was termed a " double title," since a purchaser of either property would, of course, have to examine the title of the other. A recent statute in England has completely altered the common law as to this, and deeds of ex- change have there no longer the effect of creating any warranty, or right of re-entry, or implied covenant.^ In the United States, it is employed in the instrument, all difficulty -wliich has been encountered in arriving at such meaning is to be entirely disregarded ; the legal effect and operation of the covenant, -whether framed in express terms, that is, whether it be an express covenant, or whether the coYenant be matter of inference and argument, is pre- cisely the same ; and an implied covenant, in this sense of the term, differs nothing in its operation or legal consequences from an express covenant. Now it is in this sense that the counsel on the part of the defendants appear to have used the term ' implied covenants.' The covenant for quiet enjoyment, they contend, is an implied covenant, because it is found in the deed in the form of a warranty, and not in that of an express covenant for quiet enjoyment ; and they then fur- ther contend that, being an implied covenant, it must of necessity be a covenant in law ; to which it appears to us to be a sufBcient answer that an implied cove- nant, in the sense in which the phrase is used in the argument, is to all intents and purposes the same as an express covenant, and that it is only those covenants which the law itself implies that can be properly considered as covenants in law, — a character and description which, as we have already seen, does not belong to the covenant now under discussion. And upon considering the several author- ities referred to, they will be found in accordance with this view of the case." ' The warranty in case of exchange was peculiar, " It is a special warranty, for upon the voucher by force of it he shall not recover other land in value, but that only which was given by him in exchange, for inasmuch as the mutual con- sideration is the cause of the warranty, it shall, therefore, extend only to land reciprocally given and not to other land, and this warranty runs only in privity, for none shall vouch by force of it but the parties to the exchange or their heirs and no assignee;" Bustard's case, 4 Coke, 121. But although an assignee could not re-enter nor vouch, but only use the warranty to rebut, yet the ex- changee might re-enter upon an alienee ; Noy's Maxims, 61 ; Dean v. Shelly, 7 P. F. Smith (Pa.), 427. ' That is to say, it is not presumed that in later times the remedy was by voucher or warrantia chartce, at least there is no such evidence ; it must have been by action of covenant, and it has been doubted by some whether this warranty and re-entry were ever incident to exchanges effected by conveyances under the statute of Uses, but the better opinion seems to be that they were ; see Stewart's note to 2 Black. Com. 323. ' " In some instances an abstract relating only to the property intended to be conveyed will not alone suffice, as where lands have been taken in exchange (4 Kep. 121 ; Prest. Abst. 87), or allotted under inclosure acts, in both of whicji FOR TITLE MAT BE LIMITED OE QUALIFIED. 473 presumed that the common-law exists,^ unless where, in some of them, it perhaps is deemed to be obsolete, and where in others it has been altered by statute.^ As to the warranty and condition of re-entry implied from partition. This being by writ, of course the warranty was implied from the partition itself, and not from any particular words used.^ It is instances an abstract must not only be furnished of documents of title relating to the estate sold or allotted, but of those also of the estates given in exchange, or of the original estates in respect of which the lands were allotted. The reason why a double title is required, in the first instance, is because the foundation of an exchange was an implied warranty, which engendered the right of entry in case of eviction (Shep. Touch. 290; Finch L. 27; Shep. Prao. Couns. 2). In the second instance, because the allotted lands became liable to the uses of the estates in respect of which they were allotted. The statute of 4 & 5 Will. IV. c. 30, §§ 24, 25, has, however, made some important alterations in the law in the latter case ; as that statute, by expressly changing the uses, takes away any right of eviction after an exchange made of lands in common fields under the powers of that act; and by a still more recent enactment (8 & 9 Vict. c. 106), deeds of exchange have no longer the effect of creating any warranty or right of re-entry or implied covenant, by implication. But this statute is only prospective, and will not affect assurances made previously. As to these, therefore, a double ab- stract will still be necessary ; " 1 Hughes on Sales of Real Property, 246. See also 1 Preston on Abstracts of Title, 303, and the comments upon that pas- sage in Allnatt on Partition, 172. In Barton's Conveyancing (London, 1831), it is said (p. 107), "As the word 'exchange' implies a mutual warranty, it would seem that the usual covenants for title, quiet enjoyment and further assurance, might be safely omitted in a deed of exchange at the common law, as those covenants, it is said, are implied by the word exchange; but express cove- nants are more extensive and better to be relied on than implied ones." Of course, under such covenants, the common-law right of re-entry in case of evic- tion does not exist; Bartram v. Whichcote, 6 Simons, 92. ' Grimes v. Redmon, 14 B. Mon. (Ky.) 237. " Exchanges," said Shars- wood, J., in the late case of Dean v. Shelly, 7 P. F. Smith (Pa.), 427, " have fallen into disuse in modern conveyancing. To make an assurance of that char- acter, it is indispensable that the word excambium — exchange — should be em- ployed, which, as Lord Coke says, is so individually requisite as that it cannot be supplied by any other word, or described by any circumlocution ; Co. Litt. 61 6." And hence where one conveyance was simply partly in consideration of another, there was held to be no implied warranty or condition of re-entry. So in Walker v. Renfro, 26 Tex. 142, where, " although the transaction was in effect an exchange, it was not a technical exchange." ^ As, for example, under the New York Revised Statutes, supra, p. 463. ' The partition of course took effect from the judgment of the court — after the judgment guod partitio fiat, the issue of the hreve de partitione facienda and the 474 IMPLIED COVENANTS, AND HOW COVENANTS familiar that the right to partition existed at common law solely between coparceners, and there was this difference between the warranty and the condition : when a parcener re-entered for con- dition broken, she defeated the partition in the whole, bnt when she vouched by force of the warranty, the partition was not defeated in the wliole, but she recovered recompense for the part that was lost.i But to joint tenants and tenants in common, there was by the common law no right to partition by writ, — between them it must be voluntary merely. And hence was passed the well known statute of 31 Hen. VIII. c. 1, which gave to all joint tenants and tenants in common the right to make partition between them by writ " in like manner and form as coparceners by the common laws of this realm have been and are compellable to do," with the proviso " that every of the said joint tenants or tenants in common and their heirs, after such partition made, shall and may have aid of the other or of their heirs, to the intent to dereign the warranty paramount, and to recover for the rate, as is used between coparceners after par- tition made by the order of the common law." Tliis statute, it will be perceived, gave the right to the warranty only, and as between joint tenants and tenants in common, the condition neither existed nor exists by common law or by statute. The common law, therefore, in cases of partition by writ, gave to coparceners a warranty and a condition, and the statute gave to joint tenants and tenants in common, warranty alone. But the reason why warranty was implied in a partition between coparce- ners is not, perhaps, very clearly stated in the books, or at least, in view of a few decisions, the subject would seem to bear some explanation. Warranty and the law of primogeniture were coeval, and the heir at common law, that is, the eldest son, was alone bound by and en- titled to the benefit of warranty. So strict was this, that although the local customs of gavelkind and borough English were recognized as, in the one case, dividing the inhei-itance among all the sons, sheriff's return — that "the partition so made remain firm and stable for ever," which judgment (unlike the decree in equity in cases of partition) of itself passed the title to the allotments in severalty. ' Bustard's case, 4 Coke, 121; Co. Litt. 174 a; Allnatt on Partition, 158; Miller on Partition, 245; Feather v. Strohoecker, 3 Pa. 508; Walker v. Hall, 15 Ohio St. K. 361. FOE TITLE MAY BE LIMITED OR QUALIFIED. 475 and in the other giving it to the youngest, yet the warranty of the ancestor, and the warranty to the ancestor, bound and profited only the eldest son, the heir-at-law.^ But as to females, and for obvious feudal reasons, it was as much the common law that a feud should descend equally among the daughters, as that among the sons it should go to the eldest alone, and all the sisters were heirs at common law, and all, as such heirs, were entitled to the benefit of the warranty which had come to tliem with the estate from their ancestor.^ So long as they held together, if one were impleaded, she might " call in aid " her sister to " dcreign the warranty para- mount," that is to say, to assist her in vouching the warrantor of their ancestor ; and if the land were lost, it was the loss of both, and if the recovery in value yielded other land from the warrantor, it became in turn the land of both. But as one of the incidents of coparcenary was that each sister could, by writ, compel the other to make partition, the common law, with that wisdom which lay at the bottom of most of its teachings, would not suffer the sister thus compelled, to be put in a worse position after, than she had been before the partition, and, therefore, by an exception to the law of warranty, it continued its benefit in severalty as it were, and in order that any future loss should be a loss to both, it annexed or implied a war- ranty in the partition ; that is to say, it still retained to each the right to " call in aid " tlie other in order to " dereign the warranty paramount," and it gave to each the right, in case of loss not thus made up to them under that warranty, to recover in value from the otlier^ro rata according to the extent of the loss, or, as it was termed, to " recover for the rate," and also to re-enter.^ But if, ' Bro. Abr. tit. Garranties, pi. 11 ; Assiz, pi. 22 ; Litt. §§ 735, 736 ; Robinson on Gavelkind, 127. - Litt. § 241. ^ This is thus stated by Littleton, " Also, if a man bee seised in fee of a carve of land by just title, and hee disseise an infant within age of another carve, and hath issue two daughters, and dyeth seised of both carves, the infant being then within age, and the daughters enter and make partition so as the one carve is allotted for the part of the one as per case to the youngest in allowance of the other carve which is allotted to the purpartie of the other, if afterward the infant enter into the carve whereof he was disseised upon the possession of the parcener which hath the same carve, then the same parcener may enter into the other carve which her sister hath and hold in parcenary with her ; " Litt. § 262. This is also the explanation of Coke's sentence. " If there be two coparceners of certain lands with warranty, and they make partition of the land, the warranty shall remain, because they are compellable to make partition ; " Co. Litt. 366 & ; 476 IMPLIED COVENANTS, AND HOW COVENANTS after partition made, one sister aliened, she lost the right of re- entry and of recovery for the rate, " because by the alienation she had dismissed herself to have any part of the tenements as par- cener," 1 but not, it would seem, the right to dereign the warranty paramount.^ And if the parceners, instead of making partition by writ, as by lawtliey were compellable to do, chose voluntarily to make partition by deed (as, of course, joint tenants and tenants in common could always do), the estate in coparcenary was of course at an end, and as each of them had thus, as in the case of alienation, " altogether dismissed herself to have any part of the tenements as parcener," the warranty was gone.^ Tlien when the statute of Hen. VIII. gave to joint tenants and tenants in common (wlio before could only partition by deed) the right to make partition by writ " in like manner and form as coparceners," to make the analogy perfect, it provided that after partition, each of them and their heirs (but not assigns) should have aid of the other to dereign the warranty paramount and to recover for the rate " as is used between coparceners after partition made by the order of the common law," and, still to keep up the analogy, it was held, after this statute had been in force for more than a century, that if joint tenants, who thus equally with copar- ceners were compellable to make partition, chose voluntarily to that is to say, the exercise of the right to have partition shall not destroy the beneficial incidents of the estate as they existed before the partition. ' Thus Littleton goes.on to say, " But if the youngest alien the same carve to another in fee before the entry of the infant, and after the infant enter upon the possession of the alienee, then she cannot enter into the other carve ; be- cause by her alienation she hath altogether dismissed herself to have any part of the tenements as parcener. But if the youngest before the entry of the infant make a lease of this for terme of yeares, or for terme of life, or in fee tayle saving the reversion to her, and after the infant enter, there peradventure otherwise it is ; because she hath not dismissed herselfe of all which was in her, but hath reserved to her the reversion and the fee, &c. ; " Litt. § 262. " Coke says, in commenting upon this passage, " Hereupon it followeth, that if one parcener maketh a feoffment in fee, and after her feoffee is impleaded and voucheth the feoffor, she may have aid of her coparcener to deraigne a warranty paramount, but never to recover pro rata against her by force of the warranty in law upon the partition ; for Littleton here saith that by her alienation she hath dismissed herselfe to have any part of the land as parcener, and without question as parcener she must recover pro rata, upon the warranty in law, against the other parcener ;'' Co. Litt. 174 a. = Year Book, 29 Edw. Uli, Warranty, 70. FOR TITLE MAT BE LIMITED OK QUALIFIED. 477 make partition by deed, the warranty was gone^ — their right to dereign the warranty paramount and to recover for the rate was their right by statute as an incident to the remedy it afforded — they had not pursued that remedy, and they could not therefore have that right. Nothing could be more logically consistent than the whole of this system. This statement of the common law and its statutory alteration has been sketched because in some of our States that law, brought to this country by our ancestors, is practically in force at the pres- ent day. And several decisions have correctly held that in the case of partition by deed between joint tenants, and between tenants in common, their right to recompense in case of loss depends solely on the covenants contained in the deed, and not upon any implied warranty.^ But as to coparceners, the law seems not to have been so carefully considered. In a case in Maryland, it was held that in partition by deed between coparceners, the warranty implied by law was superseded by the express covenants in the deed ; ^ and in Pennsylvania, it has been held that tenants in common hy descent, having been by the statutes of descent put upon the same footing as coparceners, should have all the benefit which coparceners at common law had in cases of partition by deed,* and it was hence de- cided that in a partition by deed between tenants in common by descent, there was an implied warranty of title between them, so that in an action of ejectment brought by one of them to recover the possession of part of the land allotted to him by the deed, the other tenant in common was not a competent witness for the plain- ' Morrice's case, 6 Coke, 12 6. " Between Smith and Morrice the case was such ; two joint tenants are with warranty, and partition was made between them by judgment in a writ of partitione facienda, by force of the statute of 31 H. 8, cap. 1. And it was adjudged that the warranty remained, because by the King's writ they are compellable by the statute (to which every one is party) to make partition, and the party has pursued his remedy according to the act, and therefore none can have wrong by the operation of the statute, to which every one is party ; but if they had made partition by deed by consent, after the said act, although they were compellable by writ to make partition, yet forasmuch as they had not pursued the statute to make partition by writ, therefore such parti- tion doth remain at the common law, and by consequence the warranty is gone." ' Weiser v. Weiser, 5 Watts (Pa.), 279, where is a very learned opinion by Kennedy, J. Rector v. Waugh, 17 Mo. 26 ; Picot v. Page, 26 id. 420 ; Smith v. Sweringen, id. 567 ; Cashion v. Faina, 47 id. 133. 3 Morris ». Harris, 9 Gill (Md.), 26. ■* Which was none at all, if the law has been correctly stated in the text. 478 IMPLIED COVENANTS, AND HOW COVENANTS tiff.^ But in both of these cases the law was, it would seem, incor- rectly assumed to be that in partition by deed between coparceners there was an implied warranty.^ As respects the practical effect at the present day of the warranty implied from partition, it was recently held in Tennessee, where the subject was elaborately examined in the case of a bill for con- tribution and reimbursement by one tenant in common against his co-tenant and the alienees of the latter, that a bill in equity was the proper and most convenient remedy,^ and the same view has been ' Patterson v. Lanning, 10 Watts. (Pa), 135. ' Kennedy, J., cited in his opinion, " If there be two coparceners of certain lands with warranty, and they make partition of the lands, the warranty shall re- main, because they were compellable from the first to make partition ; Co. Litt. 165, 165 b. The law, however, is different as to joint tenants, who, at the common law, were not compellable to make partition ; and hence, if they hold their lauds under warranty, and make partition thereof without writ, the warranty ■will be destroyed ; Co. Litt. 1S7 a." Here, however. Coke is speaking of the warranty of the ancestor of the coparceners, — the warranty paramount, — and not of any warranty implied by the partition, and the partition referred to in the first sentence is evidently partition by writ and not by deed. Patterson v. Lanning, however, would seem to have been considered in Pennsylvania as correctly expressing the law, though the grounds of the decision have never been seriously considered; see Strohecker v. Hansel, 5 Pa. Law Jour. 327; Seaton V. Barry, 4 Watts & Serg. ISi ; Allen v. Gault, 3 Casey (Pa.), 475. The law would seem to have been more correctly stated in Walker v. Hall, 16 Ohio St. R. 356, infra, p. 479. ^ Sawyers v. Cator, 8 Humph. (Tenn.) 266, 287. " The right of entry does not exist, because there is no implied condition given by the statute, and because the right to make actual entry upon unoccupied land is not congenial with our mode of doing business, and has never been in force and use in this State. The implied covenant given by the statute cannot be vouched upon, because that mode of proceeding has never been used in this State, and is even now obsolete in England. We have been able to find no precedent for an action of covenant upon such implied warranty. It then necessarily follows that such relief must be given by bill in a court of chancery, or it must be altogether denied, a thing that justice and equity will not permit. It seems to us that a court of chancery is peculiarly adapted to give the relief, which is, upon the principle of contribution, a subject over which such courts have so long had almost exclusive jurisdiction. The 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, therelbre, think the remedy in a court of chancery, either by setting aside the partition when improperly made, and it can be done without injustice to FOR TITLE MAT BE LIMITED OR QUALIFIED. 479 taken in a very recent case in Oliio, in which the operation by estoppel of an implied warranty between coparceners was denied ; ^ and in one of the Pennsylvania cases just referred to,^ it was con- sidered to be at least doubtful whether a personal action of cove- nant could be maintained for a breach of the implied warranty. No other remedy was, however, suggested, and, as we have seen, there was, as between tenants in common, no condition of re- entry, the warranty would seem to be practically useless. Owing to a misapprehension of one or two old cases, the dangerous doctrine has been more than once broached that covenants for title may be implied from a recital, but this has since been distinctly and decisively repudiated.^ others, or by contribution, when it is most proper. In this case contribution is asked, and it seems to us to be the most practicable and just mode of compen- sating the injured parties, and it seems to us that they are entitled to this against the co-tenants, and their assignees, because the partition is made, not by deed, but under the statute, and because the complainants have lost a portion of land allotted them by paramount title.'' ' Walker v. Hall, 16 Ohio_St. R. 355. In this case land, the property of the husband, was levied upon and sold, and finally became vested in his wife's (the piai.itiff 's) father. On the death of the latter the plaintilFand her sister, as his devisees, made partition under the local statutes, and afterwards the husband died, when the plaintiff claimed her dower in the land, and it was held that she was not estopped by reason of any implied warranty in the partition. "The doctrine of implied warranty and consequent estoppel between co-partitioners," said the court, " originated at common law, and though based on considerations of natural equity, they were long applied only in proceedings at common law by writ of partition. That form of proceeding is now obsolete, and has never had a place in the practice of our courts, it being superseded by proceedings in equity, and under special statutes. And it seems to us that when the principles of the common law are, as here, invoked as guides to proceedings in equity, they ought to be applied only so far as the ends of justice will allow. The warranty under consideration is not a warranty in fact, but a warranty by implication of law only. The law raises the implication for the attainment of justice, and the implicadon should cease whenever its application would work injustice. To hold the plaintiff estopped to claim dower in this case by reason of an implied warranty would be unjust to her; but to award it to her in accordance with the provisions of our statute in respect to improvements made subsequent to ahena- tion by the husband, and decreeing contribution by all the co-partitioners to recompense the defendant for the loss of her equal proportion of the estate, ex- clusive of the dower estate of the plaintiff, will do justice to all. And all the parties to the partition having been brought into this case, there will be a decree accordingly." ' Patterson v. Lanning, supra. ' In the early case of Severn v. Clerk, 2 Leon. 122, in an action of debt on 480 IMPLIED COYBNANTS, AND HOW COVENANTS For several hundred years after the statutes de higamis and quia emptores, no act of Parliament save that of Henry VII. ^ interfered to enlarge or to restrain such warranties or covenants as were implied at common law, and, as we have seen, the word dedi was the only one from which, in the conveyance of a freehold, a warranty could be implied.^ And during the interval which elapsed before Parlia- a bond conditioned to perform certain articles contained in a deed, whereby the obligor had assigned ^ term of years, reciting that he was possessed of them, it was held that if the party had not that interest by a good and lawful convey- ance, his obligation was forfeited. It was said that the recital of itself was nothing, but being joined and considered with the rest of the deed, it was material. It has, however, been chiefly owing to the misapprehension (in Browning v. Wright, 2 Bos. & Pull. 13) of the case of Johnson v. Procter (4 Yelv. 175 ; 1 Bulst. 3, in which the report is more full) that such an opinion has been entertained as to the effect of a recital. In that case, A and B being joint tenants for years of a mill, A assigned all his interest to C, without the assent of B, and died. B afterwards, by indenture reciting the lease and that it came to him by survivorship, granted the residue of the term to J. S., and cove- nanted for quiet enjoyment, notwithstanding any act done by him. He also gave the purchaser a bond conditioned to perform the covenants, grants, articles and agreements in the assignment ; and the purchaser, having been evicted by C of the moiety assigned to him, brought an action on the bond, and judgment was given in his favor. Lord Eldon seemed to consider the judgment as having turned on the recital, and that the recital itself amounted to a warranty. But the decision seems to have turned upon the word grant, and not at all upon the recital, and Sugden, in noticing the case (2 Sugden on Vendors, 524), says, " It seems material to refer the case of Johnson v. Procter to the true ground of the decision, because if the case turned solely on the recital, it might, perhaps, be thought that a general recital in a conveyance of the inheritance of an estate, that the vendor is seised in (ee, would amount to a general warranty, and would not be controlled by limited covenants for the title, — a proposition which certainly cannot be supported." And this view was sustained in the recent case in Ireland of Kean v. Strong, 14 Irish Law R. (Q. B.) 377, in which the author- ity of Johnson v. Procter was distinctly denied. Huston, J., took up the same misapprehension in Christine v. WhitehiU, 16 Serg. & Rawle (Pa.), 112, where it was held that a recital " being part of fifty-eight acres which A. B. granted," amounted to a covenant for seisin, a decision from which Gibson, C. J., strongly dissented at the time, and which, when the same case came up again (Whitehill V. Gotwalt, 3 Pa. R. 327) some years after, was overruled in a very accurate and lucid opinion. In a case in Mi>souri (Ferguson v. Dent, 8 Mo. 673), it was correctly said that " a grantor, and in some instances even strangers may be estopped by mere recitals in a deed (as to which see supra, Ch. XI.), and yet it does not follow that such recitals are covenants, either express or implied." ' Supra, p. 11. " Supra, p. 5. The word conveyance ia here used in its popular sense, and does not include an exchange or partition. FOR TITLE MAT BE LIMITED OR QUALIFIED. 481 ment again legislated upon the subject, the ancient had given place to the modern system of law — feoifments had been superseded by- conveyances taking effect under the statute of Uses, and warran- ties, by covenants for title. It is familiar learning that the passage of the statute of Uses led to the introduction of deeds of bargain and sale, and that after the statute of Enrolments had required that the latter should be registered, there was introduced the mode of assurance by lease and release.^ Deeds of bargain and sale were still, however, used in some parts of England, and in the year 1707, was passed the very local statute of 6 Anne, c. 35, which provided for the public registering of deeds, in certain parts of the county of York,^ by the 30th section of which it was enacted that " in all deeds of bargain and sale hereafter enrolled in pursuance of this act, whereby any estate of inheritance in fee-simple is limited to the bargainee and his heirs, the words grant, bargain and sell shall amount to, and be con- strued and adjudged in all courts of judicature, to be express cove- nants to the bargainee, his heirs and assigns, from the bargainor for himself, his heirs, executors and administrators, that the bar- gainor, notwithstanding any act done by him, was at the time of the execution of such deed seised of the hereditaments and prem- ises thereby granted, bargained and sold, of an indefeasible estate in fee-simple, free from all incumbrances (rent and services due to the lord of the fee only excepted), and for quiet enjoyment thereof against the bargainor, his heirs and assigns, and all claiming under him, and also for further assurance thereof to be made by the bar- gainor, his heirs and assigns, and all claiming under him ; unless the same shall be restrained and limited by express particular words contained in such deed ; and that the bargainee, his heirs, executors, administrators and assigns respectively, shall and may, in any action to be brought, assign a breach or breaclies thereupon, as they might do in case such covenants were expressly inserted in such bargain and sale." ' See Reeves' History of the Common Law, c. 30 ; 2 Black. Com. 338, &c. ' It was entitled " An act for the public registering of all deeds, conveyances, wills and other incumbrances that shall be made of or that may affect any honours, manors, lands, tenements or hereditaments within the East Riding of the county of York, or the town and county of Kingston upon Hull, after the nine and twentieth day of September, one thousand seven hundred and eight, and for rendering the register in the West Riding more complete." 31 482 IMPLIED COVENANTS, AND HOW COVENANTS Whether from the extremely local application of this statute, or the clearness of the language of this section, there is not only an absence of its judicial interpretation, but it has passed almost un- noticed by legal writers.^ The next statute upon the subject of implied covenants for title was one which, having a wider range, utterly failed in its object. The usual verbosity of the language of conveyancing had been carried to its greatest extent in the expression of the covenants for title,^ and although the general scope of the statute of 8 & 9 Vict, c. 119,3 \^2Ld of course a wider range than merely to curtail the ' It has been given here at length because, as will be seen, it has been re-enacted in several of the United States . It will be perceived that the covenants statutorily implied by this act are carefully limited to the acts of the grantor and those claiming under him. The words " notwithstanding any act done by him," are the proper restraining words of the covenants for seisin and against incumbrances ; see supra, pp. 25, 28. Those for quiet enjoyment and for further assurance are also expressly limited in the usual manner; supra, pp. 25, 28. 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 his will, it is provided that even these covenants can be restrained and limited by express particular words in the deed. ^ See supra ; see also the evidence before the real property commissioners in 1829, 1 Real Property Report, 507, &c. ^ One of the series, called " The Real Property Acts," and sometimes known as " Lord Brougham's Act." The act of 8 & 9 Vict, is too long to be here inserted at length. Its sub- stance, however, may be thus given : Its first section declares that " whenever any party to any deed made according to the forms set forth in the first schedule to this act, or to any other deed which shall be expressed to be made in pursu- ance of this act, or referring thereto, shall employ 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 schedule, and distin- guished by the same number as is annexed to the form of words employed by such party ; but it shall not be necessary in any such deed to insert any such number." The second section declares that every such deed shall, unless exception be specially made, be construed to include all houses, out-houses, edifices, barns, stables, &c., &o., as well as all reversions, remainders, rents, profits, &c. The subsequent sections provide for the stamp duty, — that in taxing any bill for preparing such a deed, remuneration is to be estimated not according to its length, but the skill, labor and responsibility incurred ; that a deed failing to take eifcct under this act shall, as far as possible, be held valid and effectual ; that the word " lands " shall extend to all freeholds, corporeal and incorporeal FOE TITLE MAY BE LIMITED OR QUALIFIED. 483 length of these covenants, yet this mischief was one of its objects, and certain short forms, which were sometimes called " pattern covenants," were intended to supersede those then in use. But the act as to this was a failure. The short forms thereby authorized were seldom or never employed, and have since, says a recent text writer ,i " been consigned to a deserved oblivion. Such enactments," he continues, " are either unnecessary or mischievous ; unnecessary, if the parliamentary form would, if unauthorized by Parliament, merely express in fewer words the meaning of the hereditaments and copyholds capable of passing by deed ; and that every word importing the singular number only shall extend and be applied to several per- sons or things as well as one, and the converse ; and 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 to Scotland. The first schedule referred to comprises merely a short form of a deed, not unlike the ordinary deeds of bargain and sale used in this country, — the word of conveyance is simply " grant." The second schedule is divided into two columns, of which a specimen is here given : — Column I. Column II. 1. The said (covenantor) 1. And the said covenantor doth hereby for covenants with the said (cov- himself, his heirs, executors and administrators, enantee) . covenant, promise and agree with and to the said covenantee, his heirs and assigns, in manner fol- lowing (that is to say) . 2. That he has the right 2. That for and notwithstanding any act, deed, to convey the said lands to matter or thing, by the said covenantor done, the said (covenantee) not- executed, committed, or knowingly or wilfully withstanding any act of the permitted or suffered to the contrary, he the said said covenantor. covenantor now hath in himself good right, full power and absolute authority to convey the said lands and other the premises hereby conveyed, or intended so to be, with their and every of their appurtenances, unto the said covenantee, in man- ner aforesaid, and according to the true intent and meaning of these presents. Then follow similar forms for expressing the covenants for quiet enjoyment, against incumbrances, and for further assurance, for the production of title-deeds, and that the grantor has done no act to incumber. The Revised Statutes of Virginia have concisely adopted this statute. See infra, p. 494. ' Dart on Vendors (4th ed.), 463. Sugden, also, in his late 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 Vict, with the most casual notice. See also a severe criticism on this statute in 9 Jur. part ii. 333, 334. 484 IMPLIED COVENANTS, AND HOW COVENANTS forms in ordinary use ; and mischievous, if an unnatural and sec- ondary meaning is given by statute to words which are prima facie clear and intelligible ; for the effect is to increase the difficulty of legal documents to the unprofessional reader." ^ But although statutes giving to the words of grant of a convey- ance the effect of certain covenants for the title are but little re- garded in England, yet similar enactments, for the most part copied from the statute of Anne, have been passed in many parts of this country, and are still in force. Within eight years after the statute of Anne, and in the early colo- nial days of Pennsylvania, " an act for acknowledging and recording of deeds " ^ was there passed, the sixth section of which was copied from the English statute, though the attempt at brevity caused it to be less clear. It declared that ^ " all deeds to be recorded in pur- suance 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, shall be adjudged an express covenant to the grantee, his heirs and assigns, to wit, that the grantee was seised of an indefeasible estate in fee-simple, freed from incumbrances done or suffered from the grantor (excepting the rents and services due to the lord of the fee), as also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by express ' The author goes on to say (in the last edition), " For instance, a lessee, Tvho has in the usual way covenanted not ' to carry on any trade or business ' upon the demised premises, may feel a reasonable and saving doubt whether he is safe in using them for a school ; Doe v. Keeling, 1 Maule & Selw. 95 ; Kemp V. Sober, 1 Sim. N. R. 517 ; Wickenden v. Webster, 5 Ell. & Bl. 387 ; Johnstone V. Hall, 2 Kay & Johns. 414 ; but, unless more addicted than is customary to the perusal of acts of Parliament, he probably will scarcely suspect that such an occupa- tion is forbidden by an engagement not to ' use the premises as a shop,' which is, nevertheless, the statutory equivalent to the ordinary covenant ; 2d schedule to 8 & 9 Vict. c. 124. If brevity be the only or the predominant desideratum in a legal document, it would be quite possible, with the aid of the legislature, to express the greater part of an ordinary assurance algebraically, which would at least have this advantage, viz., that a person who had entered into covenants x-\-y-\-z would hardly venture to act upon his own ideas as to the unknown value and sig- nification of these mysterious letters, without consulting the interpretation clause of the statute to which they owed their legal efficacy." 2 Act of 28th of May, 1715. ' The word "in" was of course accidentally omitted in transcribing this section. FOR TITLE MAY BE LIMITED OE QUALIFIED. 485 words contained in such deed, and that the grantee, his heirs, executors, administrators and assigns, may in any action assign breaches, as if such covenants were expressly inserted." ^ Apart from mere verbal alterations, there are two perceptible points of difference between the English and the Pennsylvania statute : the covenant for seisin in the latter not being introduced by restric- tive words ; and the former implying a covenant for further assur- ance, which the latter omits. Why this useful covenant was omitted can be now only conjectured. It might at first be sup- posed to be owing to the absence of a court of chancery in Penn- sylvania, since a remedy upon this covenant is usually sought in equity, but when we find that on the same day on which the act was passed there was also passed one of the acts for erecting a supreme or provincial court of law and equity,^ the reason would seem to fail. No doubt could have arisen that all the covenants implied under the statute of Anne were limited to the acts of the grantor and those claiming under him, and did not extend to defects of title anterior to the conveyance to him. But in the wording of the Pennsylvania act, it will be seen that its draftsman made the first covenant, that for seisin, an unlimited one, while the subsequent covenants are restrained to the acts of the grantor. The question would hence arise whether the latter covenants restrained the for- mer. Were it to arise upon express covenants in a deed, there might be little difficulty in holding, under the authority of a class of cases to be presently referred to,^ that the covenant for seisin stood ' The following proviso is at the end of this section : " Provided always, that this act shall not extend to leases at rack-rent, or to leases not exceeding one- and-twenty years, where the actual possession goes with the lease." This proviso has no particular connection with this section ; if it had, it would be insensible, as the section is limited in application to deeds " whereby any estate of inheri- tance in fee-simple " is conveyed, and the proviso would, according to this con- struction, exempt leases at rack-rent, &c., to which the section never was intended to extend. The proviso is, therefore, awkwardly introduced. It really refers, however, to the prior recording provisions of the act, as appears from looking at the 29th section of the statute of Anne, from which the clause is copied. It is remarkable that in many States in which this section of the Pennsylvania statute has been re-enacted the proviso has been retained. ^ And there had been several such acts before ; Rawle's Lecture on Equity in Pennsylvania, p. 11. ' See infra. 486 IMPLIED COVENANTS, AND HOW COVENANTS by itself, an unlimited covenant, and unqualified by those which followed it. But where the question is upon the construction of a statute, which turns certain words of grant into express covenants, there is every reason why a limited interpretation should be given to those covenants which every man is, as it were, obliged to enter into when the words of implication are, as in Pennsylvania, the words generally employed in conveyancing.-' The case of Bender v. Fromberger has been already referred to.^ It was there mentioned that it had been the general understanding of the profession that the words " grant, bargain and sell " im- ported a general warranty, and, acting on this ground, it was held that this general warranty could not be restrained by a subsequent special warranty ; and this, as a general proposition, was unques- tionably correct. But in the subsequent case of Gratz v. Ewalt^ the construction of the statute was carefully considered, and it was held that the first covenant, which, standing by itself would be un- ' In the first place the covenants are, in one sense, implied, and the danger arising from such covenants has been often referred to by courts in strong terms. In the second place, there is a different technical rule of construction called in to the interpretation of such a statute ; and while, with respect to deeds, the rule is that the words are to be taken most strongly against the party using them, in the construction of statutes the rule is equally familiar, that statutes in deroga- tion of the common law are to be construed strictly. Now the common law gave no effect of warranty to the words " grant, bargain and sell," and it may not unreasonably be said that a statute altering the common law in this respect should, when it is doubtfully expressed, be so construed as to give to the war- ranty the most limited extent. And since these remarks were written, the same view has been expressed from the bench ; Finley v. Steele, 23 111. 59. The author has heard a doubt suggested from the bench whether the statute could be held to apply to the case of a conveyance made in execution of a power, on the ground that such vendors might not be grantors within the meaning of the statute ; and in the late case of Shontz w. Brown, 3 Casey (Pa.), 134, it was ex- pressly decided that the words " grant, bargain and sell," when used by ex'ecu- tors in a deed conveying the real estate of a decedent, " imply no personal undertaking, for they ai-e 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. Butler in Co. Litt. 384 o, 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 editions of the First Insti- tutes, printed at the end of the volume. ' See suprii, p. 235. 3 2 Binn. 98. FOR TITLE MAY BE LIMITED OR QUALIFIED. 487 limited, must be taken in connection witli tlie subsequent one against incumbrances, wliich is limited, and, consequently, that none of the covenants implied by the statute were to be construed as extending beyond the acts of the covenantor ; ^ and the construc- tion thus given has never been departed from in Pennsylvania ; ^ ' "The meaning," said Tilghman, C. J., who delivered the opinion, " is not clearly expressed ; but I take it to be a covenant that the grantor had done no act nor created any incumbrance whereby the estate granted by him might be defeated ; that the estate was indefeasible as to any act of the grantor. (See Knepper v. Kurtz, 8 P. F. Smith, 484, correcting a supposed dictum in Funk v. Voneida, 11 Serg. & Rawle, 111.) For if it was intended that the covenant should be that the grantor was seised of an estate absolutely indefeasible, it was improper to add the subsequent words, ' freed from incumbrapce done or suffered by him ; ' these words, instead of adding strength, would only serve to weaken what went before. The words ' seised of an indefeasible estate in fee-simple ' are to be considered, therefore, as not standing alone, but in connection with the words next following, ' freed from incumbrances done or suffered from the grantor.' I am the more convinced that this was the intention of the legislature, by comparing the expressions in this act with the 30th section of the statute of 6th Anne, u. 35, which contains a provision on the same subject, and was evi- dently in the eye of the persons who framed our law. The British statute makes use of more words, and the intention is more clearly expressed. It declares that the words grant, bargain and sell shall amount to a covenant that the bargainor, notwithstanding any act done by him, was, at the time of the execution of the deed, seised of an indefeasible estate in fee-simple, &c. Our law seems in- tended to express the substance of the British statute in fewer words, and has fallen into a degree of obscurity which is often the consequence of attempting brevity. I can conceive no good reason why our legislature should have wished to carry this implied warranty further than the British statute did, because it has bad effects to annex to words an arbitrary meaning far more extensive than their usual import, and which must be unknown to all but professional men. It might be very well to guard against secret acts of the grantor, with which none but him- self and those interested in keeping the secret could be acquainted. As for any further warranty, if it was intended by the parties, it was best to leave them to the usual manner of expressing it in plain terms." Had the case of Bender v. Fromberger, 4 Dall. 486, been presented after this determination, its decision would have been different, in ease the deed had not contained express general covenants for seisin and of right to convej', as it was taken for granted in that case that the statutory covenants were general ; see supra. '■' Funk V. Voneida, Jl Serg. & Rawle (Pa.), Ill (see Knepper v. Kurtz, 8 P. F. Smith (Pa.), 484, for the correction of an apparent dictum in this case, as to which see also Winston v. Vaughan, 22 Ark. 74) ; Whitehill v. Gotwalt, 3 Pa. 323 ; Seitzinger v. Weaver, 1 Rawle, 377. In this last case, it was held that the statute applied not only to deeds executed but to articles of agreement for the 488 IMPLIED COVENANTS, AND HOW COVENANTS and it is said by Chancellor Keut,^ that " by the decision in Gratz V. Ewalt the words of the statute are divested of all dangerous ten- dency, and that it will equally apply to the same statutory language in other States." We are now to consider in what States there are similar provi- sions, and the construction which they have received. Such a subject is, however, approached with diffidence, as noluithor is per- haps competent to consider the effect of the local statutes of any State other than his own. In none of the New England States does there appear to have been any such implied covenant created by statute. None such ever existed in New York, and the Revised Statutes declare that no " covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not ; " ^ but it is held in that State that this provision does not ex- tend to leases.^ The words of enactment in the New York Revised Statutes have also been copied in the statutes of Michigan,* Minnesota,^ and Wisconsin.^ Nor do any covenants for title seem to be implied by statute at the present day in Colorado, Florida, Louisiana, New Jer- sale of real estate. " It is insisted," said Gibson, C. J., who delivered the opin- ion of the court, " that the act of assembly by force of which such a covenant can be implied, is applicable only to conveyances executed. No express pro- vision to that effect is found in the act itself, and there certainly is nothing in the nature of an executory contract to call for such a construction. Where the vendee has done every thing on his part to entitle him to the estate, the articles are an equitable conveyance of the title, and, therefore, fall within the letter as well as the spirit of the enacting clause. He sometimes obtains no other title, and for that reason alone the law ought to be construed liberally for his protec- tion. Where a sound price has been paid for an unsound title, I see no objection on this ground to its being recovered back.'' The covenant against incumbrances was included here in the covenant for seisin, since the next sentence is, " But this special covenant of seisin is broken by the existence of an incumbrance cre- ated by the vendor the instant it is sealed and delivered." ' 4'Com. 474. V Part 2, art. 4, § 140 ; 2 Rev. Stats. 22 ; Sandford u. Travers, 7 Bosw. (N. Y.) 498. ' Supra, p. 463. * Mich. Rev. St. 1846, c. 65, § 5 ; Compiled Laws, 1857, p. 838,' § 2724. 5 Minn. Rev. St. 1866, c. 40, § 6, p 829. « Wis. Rev. St. 1858, c. 86, § 6, p. 538. FOE TITLE MAY BE LIMITED OR QUALIFIED. 489 sey, North Carolina,^ Oliio,^ South Carolina,^ Tennessee,* or Texas.^ In Alabama, the 29th section of the act of 1805 was copied ex- actly from the Pennsylvania statute, was adopted in the Revised ■Statutes of 1823,^ and 1852,^ and incorporated in the Revised Code of 1867.^ The decision in Gratz v. Ewalt has been approved and applied to this act,^ and in a case ^° where the words of the con- veyance were " bargained, sold, released, aliened and confirmed," it was held, upon a demurrer to the declaration, that these words did not come within the act, inasmuch as they imported no warranty at common law, and the statute, which altered the common law, should not have its meaning stretched beyond its letter, except in cases of public utility when the object of the act appeared larger ' Rickets v. Dickens, 1 Murph. (N. C.) 343; Powell v. Lyles, id. 348. ' In Ohio an act passed August 1, 1795, called "A law establishing the Re- corder's Office," was nearly or exactly copied from the Pennsylvania statute. It was afterwards repealed. Another act, passed January 2, 1815, gave a right of action in all oases where a deed contained a covenant of general warranty, in like manner as if the deed contained a covenant of seisin, and the same evidence to support the action and the same damages might be recovered as in an action on the covenant of seisin. This law was repealed and re-enacted in substance on the 3d of February, 1824, and was entirely repealed by the act of March 12, 1831. The decisions under these statutes while in force are Innes v. Agnew, 1 Ohio, 389 ; Day v. Brown, 2 id. 346 ; Robinson v. Neil, 3 id. 525. The statute of 1815 seems not to have been very clearly expressed or distinctly understood ; Day V. Browii, supra; see note to p. 274 of statute of 1841. ^ In South Carolina an act passed on the 12th of December, 1795 (5 Stat. 256), gave a short form of a deed of lease and release, in which was a general covenant of warranty, expressed in the usual form, but a proviso declared that the act should not be so construed as to oblige persons to insert the clause of war- ranty, nor to prevent them from inserting such clauses as should be agreed upon ; see, as to the construction of this statute, Jeter v. Glenn, 9 Rich. Law, 374 ; Fariesu. Smith, 11 id. 81. * In Tennessee, a short form of a general and special warranty is given by statute (Thompson & Steger's St. 1871, § 2013, p. 939), but the act of 1716, c. 38, § 5, merely requires that conveyances shall be by deed and shall express the intention of the party conveying. * In Texas', an act of February 5, 1840, was passed to the same effect as the South Carolina act of 1796 ; supra. ' Tit. 18, c. 1, § 20. ' Rev. Code, 1852, part 2, tit. 1, c. 1, § 1314. 8 Walker's Rev. Code, 1867, p. 368, § 1584. ' Roebuck v. Dupuy, 2 Ala. 541 ; Stewart v. Anderson, 10 Ala. 504. «> Gee V. Pharr, 6 Ala. 587. 490 IMPLIED COVENANTS, AND HOW COVENANTS than the enacting words, which, it was said, was not then the case. The statute not only altered the common law, but, inasmuch as it created covenants for the party conveying, by mere implication, its tendency might be regarded as somewhat dangerous, and as calcu- lated to entrap the ignorant and unwary ; and this decision was followed in a more recent case.i In Arkansas, it is declared that " the words grant, bargain and sell shall be an express covenant to the grantee, his heirs and assigns, that the grantor is seised of an indefeasible estate in fee- simple, free from incumbrances done or suffered from the grantor, except rents or services that may be expressly reserved by such deed, as also for the quiet enjoyment thereof against the grantor, his heirs and assigns, and from the claim or demand of all other persons whatsoever, unless limited by express words in such deed. The grantee, his heirs or assigns, may in such action assign breaches as if such covenants were expressly inserted." ^ In a recent case the statute received the same construction which, in Gratz V. Bwalt, had been given to the Pennsylvania act.^ In California, the statute of 1855 * provides that " the words grant, bargain and sell, in all conveyances hereafter to be made in and by which an estate of inheritance or fee-simple is to be passed, shall, unless restrained by express terms contained in such con- veyances, be construed to be the following express covenants, and none other, on the part of the grantor, for himself and his heirs, to the grantee, his heirs and assigns : 1. That, previous to the time of the execution of such conveyance, the grantor has not conveyed the same real estate, or any right, title or interest therein to any ^ Claunoh v. Allen, 12 Ala. 164. When it is said in Andrews v. McCay, 8 id. 928, that "the statute 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 cov- enant of warranty) to deprive an assignee of a remedy on the statutory cove- nants on the ground of its being a chose in action and therefore not assignable ; see supra, p. 320 et seq. This is here mentioned because many of the cases say, generally, in actions on the implied covenant for seisin and against incumbrances, " this was broken as 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 Ark. Rev. St. 1848, p. 264 ; Davis v. Tarwater, 16 Ark. 289. " Winston v. Vaugh, 22 Ark. 72. ' 1 General Laws, 693 ; Wood's Digest, art. 388, § 9. FOH TITLE MAT BE LIMITED OR QUALIFIED; 491 person other than the grantee ; 2. That such real estate is, at the time of the execution of such conveyance, free from incumbrances done, made or suffered by the grantor, or any person claiming under him ; and such covenants may be sued upon in the same manner as if they had been expressly inserted in the conveyance." None of these covenants, it is held, run with the land.^ In Delaware, " an act for acknowledging and recording of deeds," similar in many of its provisions to the Pennsylvania stat- ute, was passed in the year 1742, and its fifth section was identical with that statute.^ The act of 1829 ^ was, however, more concise, providing that " where there is no express covenant in a deed, the words ' grant, bargain and sell, shall, unless specially restrained, imply a special warranty against a grantor and his heirs, and all claiming under him," and in the Revised Statutes of 1852,* the same phraseology has been adopted. In Illinois, the provision in the Revised Statutes of 1839 and 1845 ^ was copied almost literally from the section of the Pennsyl- vania act, it was re-enacted by the act of March 29, 1872,® and has received the same construction from the courts.' It was once held that the covenants thus created were express and not implied cove- nants, made express by the very words of the statute, and could not therefore fall within the doctrine ^ that implied covenants are modified or restrained by express covenants in the same deed,^ but in a later case, it seems to have been considered that the statute, being in derogation of the common law, should be strictly con- strued, and hence that when the deed contained express covenants, the statutory covenants were inoperative. i" ' Lawrence u. Montgomery, 37 Cal. 183. ' 1 Booth's Del. Laws, 222. 5 Act of Feb. 7, 1829, § 5. " Del. Rev. St. c. 83, § 3, p. 266. = Scates' Comp. 961 ; Gross' Stat. 1870, p. 85, § 11. « III. Pub. Laws, 1871-72, p. 282, § 2. The irrelevant proviso in the Pennsyl- vania act (see supra, p. 485) was also retained. ' Prettyman v. Wilkey, 19 111. 235. * Infra. ' Hawk ». McCuUough, 21 111. 222. This case also held that the proper mode of declaring on such covenants was to set them forth at length as the statute declares their purport and meaning to be. '° Finley v. Steele, 23 111. 56. " The statutory provision," said the court, " does not create this covenant against the intention of the parties, but only where they intend that this statutory covenant shall operate and have effect, for 492 IMPLIED COVENANTS, AND HOW COVENANTS In Mississippi, the section of the Pennsylvania act was copied in the statutes of 1822,^ and re-enacted in the Revised Statutes of 1840 2 and 1848.s In an early case,* the court gave no opinion as to the first of these implied covenants being limited to the acts of the grantor (though Gratz v. Ewalt was cited in the. argument), but decided the case on the ground that the express covenant of warranty which the deed contained did away with the implied covenants.^ " The covenants raised by law from the use of par- ticular words in the deed are only intended to be operative when the parties themselves have omitted to insert covenants. But when the party declares how far he will be bound to warrant, that is the extent of his covenant." The effect of this is, of course, to deny to a purchaser the benefit of the statutory covenant for seisin when he has also received an express covenant of warranty, and under such circumstances it would seem that there could never be a recovery without an eviction. In Missouri, the Revised Statutes of 1845 ^ declared that " the the legislature has provided that these words shall not have this effect if they are hmited by express words in the deed. It would seem to be clear that the employment of any language from which it appears the parties intended that these words should not have such an effect, would be sufBcient to do away with this statutory covenant. The question then recurs whether that intention is manifested by the insertion of the general warranty in this deed," and this ques- tion was answered affirmatively. The Mississippi decisions (infra, p. 492) were considered to have been correctly made. ' 13 June, 1822, c. 24, § 32. ' Ch. 34, § 32. ' Ch. 42, § 32, Hutchinson's Code, p. 610. * Weems v. McCaughan, 7 Sm. & Marsh. 427 ; see also Bush v. Cooper, 26 Miss. 599. * This is correct when applied to the case of covenants contained in a con- veyance for a term of years. In such cases, the covenant implied from the words of leasing is annulled by the insertion of an express covenant ; Nokes's case, 4 Coke, 80; Line v. Stephenson, o Bing. N. C, see supra; but this was not the law as to the conveyance of a freehold. ° Page 221. There were former acts passed in 1804 and 1825, from which this was altered. 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 and administrators, that the bargainor or grantor was, at the time of the execution of such deed, seised of an indefeasible estate in fee-simple, in and to the lands, tenements and hereditaments thereby granted, bargained and sold, and that the same was then free from incumbrances done or suffered from the bargainor or grantor, his heirs and^ assigns, and all claiming under him ; and FOR TITLE MAY BE LIMITED OR QUALIFIED. 493 words grant, bargain and sell, in all conveyances in which any estate of inheritance in fee-simple is limited, shall, unless re- strained by express terms contained in such conveyances, be con- strued 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 seised of an indefeasible estate in fee-simple in the real estate thereby granted ; second, that such real estate was, at the time of the execution of such conveyance, free from incum- brances done or suffered by the grantor, or any person claiming under him ; third, for further assurance of such real estate to be made by the grantor and his heirs to the grantee and his heirs and assigns, and may be sued upon in the same manner as if such covenants were expressly inserted in the conveyance." This was re-enacted in the revisions of 1855 and 1865,^ and is still in force.^ The second of these covenants is a limited one, while the first and third are general. In one case,^ the court, after a careful review of the English and Pennsylvania authorities, held that these three covenants were distinct and independent. The second might be superfluous, but it did not therefore limit the first, which was independent of, and not inconsistent with it.* The covenant for further assurance was, at one time, held to be the only one which could be taken advantage of by an assignee of the land,^ but more recent decisions have gone so far as to hold also for further assurance thereof, to be made by the bargainor or grantor, his heirs and assigns, unless the same be restrained," &c. The act of 1804 was identical with the Pennsylvania statute. ' Until lately, the constitution of Missouri required that the laws should be revised every ten years. "■ 1 Wagner's Stat. 1870, p. 274, § 8. ' Alexander v. Schreiber, 10 Mo. 461. ■* See, accordingly. Collier v. Gamble, 10 Mo. 471. ^ Collier V. Gamble. In Shelton v. Pease, 10 Mo. 473, a purchaser took an express general covenant to warrant and defend against all titles, and particu- larly against a certain mortgage which had been executed by his grantor. He paid off this mortgage and then brought suit upon his covenants. It was, how- ever, held by the court that there was no breach of the covenant of warranty, and that the mortgage could not come within the scope of the statutory covenant against incumbrances, because the grantor having covenanted to warrant and defend against the mortgage, he could not be supposed to mean to covenant against its existence. 494 IMPLIED COVENANTS, AND HOW COVENANTS that all the statutory covenants run with the land to the successive owners thereof.^ In Nevada, the act of 1861 provides that " the words ' grant, bargain and sell,' in all conveyances hereafter to be made, in and by which any estate of inheritance or fee-simple is to be passed, shall, unless restrained by express terms contained in such con- veyance, be construed to be the following express covenants, and none other, on the part of the grantor for himself and his heirs, to the grantee, his heirs and assigns, first, that previous to the time of the execution of such conveyance the grantor has not conveyed the same real estate, or any right, title or interest therein, to any person other than the grantee ; second, that such real estate is, at the time of the execution of such conveyance, free from incum- brance done, made or suffered by the grantor or any persons claiming under him, and such covenants may be sued upon in the same manner as if they had been expressly inserted in the con- veyance.^ In Virginia, the Revised Statutes of 1849 ^ have been, as to this subject, abridged and adapted from the statute of Victoria, and the provisions of the Virginia act have been very re- ' Dickson v. Desire, 23 Mo. 151 (supra, p. 330) ; Chambers v. Smith, id. 174; Armstrong v. Darby, 26 id. 520; Magwire v. Kiggin, 44 id. 514. These covenants do not, however, operate to pass an after-acquired estate by estoppel ; Gibson V. Chouteau, 39 id. 636, supra, p. 411. = Laws of 1861 (first session), p. 14, § 20. 3 Va. Rev. St. 1849, tit. 83, c. 117 ; Code of 1860, c. 117, § 9. " § 9. When a deed uses the words ' the said covenants,' such covenant shall have the same eifect as if it was expressed to be by the covenantor, for him- self, his heirs, personal representatives and assigns, and shall be deemed to be with the covenantee, his heirs, personal representatives and assigns. " § 10. A covenant by the grantor in a deed, ' that he will warrant generally the property hereby conveyed,' shall have the same effect as if the grantor had covenanted that he, his heirs and personal representatives, will forever warrant and defend the said property unto the grantee, his heirs, personal representa- tives and assigns, against the claims and demands of all persons whomsoever. " § 11. A covenant by any such grantor, ' that he will warrant specially the property hereby conveyed,' shall have the same effect as if the grantor had cove- . nanted that he, his heirs and personal representatives, will forever warrant and defend the said property unto the grantee, his heirs, personal representatives and assigns, against the claims and demands of the grantor, and all persons claiming or to claim by, through or under him. " § 12. The words, ' with general warranty,' in the granting part of any deed shall be deemed to be a covenant by the grantor ' that he will warrant generally FOE TITLE MAT BE LIMITED OR QUALIFIED. 495 cently adopted in Maryland,^ and partially re-enacted in Ken- tucky.2 In Georgia, " a general warranty of title against the claims of all persons, includes in itself covenants of a right to sell, and of quiet enjoyment, and of freedom from incumbrances. " ^ In Indiana, " any conveyance of lands worded in substance, ' A. the property hereby conveyed.' The words, ' with special warranty,' in the granting part of any deed, shall be deemed to be a covenant by the grantor ' that he will warrant specially the property hereby conveyed.' " § 13. A covenant by the grantor in a deed for land, ' that he has the right to convey the same to the grantee,' shall have the same effect as if the grantor had covenanted that he has good right, full power and absolute authority to con- vey the said land, with all the buildings thereon, and the privileges and appurte- nances thereto belonging, unto the grantee, in the manner in which the same is conveyed or intended so to be by the deed, and according to its true intent. " § 14. A covenant by any such grantor, ' that the grantee shall have quiet possession of the said land,' shall have as much effect as if he covenanted that the grantee, his heirs and assigns, might, at any and all times thereafter, peace- ably and quietly enter upon and have, hold and enjoy the ladd conveyed by the deed or intended so to be, with all the buildings thereon, and the privileges and appurtenances thereto belonging, and receive and take the rent and profits thereof to and for his and their use and benefit, without any eviction, interruption, suit, claim or demand whatever. If to such covenant there be added ' free from all incumbrances,' these words shall have as much effect as the words ' and that freely and absolutely acquitted, exonerated and forever discharged, or otherwise by the said grantor or his heirs saved harmless and indemnified of, from and against any and every charge and incumbrance whatever.' " § 15. A covenant by any such grantor 'that he will execute such further assurances of the said lands as may be requisite,' shall have the same effect as if he covenanted that he, the grantor, his heirs or personal representatives, will at any time, upon any reasonable request, at the charge of the grantee, his heirs or assigns, do, execute or cause to be done or executed, all such further acts, deeds and things, for the better, more perfectly and absolutely conveying and assuring the said lands and premises, hereby conveyed or intended so to be unto the grantee, his heirs and assigns, in manner aforesaid, as by the grantee, his heirs or assigns, his or their counsel in the law, shall be reasonably devised, ad- vised or required. " § 16. A covenant by any such grantor, ' that he has done no act to incumber the said lands,' shall have the same effect as if he covenanted that he had not done or executed, or knowingly suffered, any act, deed or thing whereby the lands and premises conveyed or intended so to be, or any part thereof, are, or ■ will be, charged, affected or incumbered in title, estate or otherwise ; " Rev. Stats, of Va. 1849. ' Md. Acts of 1864, c. 252, § 1. 2«y. Rev. St. 1860, c. 24, §6. ' Georgia Code, Revision of 1868, pt. 2, tit. 6, c. 8, art. 2, § 2661, p. 513. 496 B. conveys and warrants to C. D.,' shall be deemed and held cove- nants from the grantor and his heirs and personal representatives, that he is lawfully seised of the premises, has good right to convey the same, and guarantees the quiet possession thereof, that the same are free from incumbrances, and that he will warrant and defend the title to the same against all lawful claims." '■ In Oregon, an act passed in 1849 ^ provided that " the words grant, bargain and sell, in all conveyances in which any estate of inheritance in fee-simple is limited, shall, unless restrained by ex- press terms 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," that he is seised of an indefea- sible estate, against incumbrances and for further assurance ; and in a recent case arising upon the construction of a deed dated in 1850, this statute was referred to by the court,^ but by the act of 1.854, it would seem that " no covenant shall be implied in any con- veyance of real estate, whether such conveyance contains special covenants or not." ^ In Iowa, the Revised Statutes^ provided that the words " grant, bargain and sell," in all conveyances, shall, unless restrained by express words, " be construed to be the following express covenants : Mrst, that the grantor was, at the time of the execution of such conveyance, seised of an indefeasible estate in fee-simple, in the real estate thereby granted ; second, that such real estate was, at the time of the execution of such conveyance, free from incumbrance done or suffered by the grantor, or any person claiming under him ; third, for further assurance of such real estate to be made by the grantor and his heirs to the grantee, his heirs and assigns, and may be sued upon in the same manner as if such covenants were ex- pressly inserted in the conveyance ; " and it has been decided ^ that ' Act of March 2, 1857, p. 82 ; Gavin & Herd's St. vol. i. p. 260, § 12. While this State was a territory, an act was passed in 1804, copied from the Pennsylvania statute of 1715, and by a subsequent act (Ind. Rev. St. 1843, c. 28, § 21) the provisions of the New York statute were copied, and until the act of 1857 no covenants were implied in that State by statute. « Laws of Oregon, 1843-49, p. 139. ' Fields V. Squires, 1 Deady (C. C. U. S.), 866, 390. * Acts of 1854, p. 476, § 6 ; Deady's Laws of Oregon, p. 647, § 6. » Page 204. ' Brown v. Tomlinson, 2 Greene, 525 ; see also Funk v. Cresswell, 5 Oterke, 84. FOE TITLE MAY BE LIMITED OR QUALIFIED. 497 the covenants thus implied were general or absolute, and, also, that when the deed contained a covenant of warranty limited to tlie covenants of the grantor, it would not control tlie generality of the statutory covenants.^ The statute, however, is not to be found in tlie Revised Code of 1860. But, as has been already said, this reference to local statutory provisions is submitted with much diffidence as to its corectness. The question how covenants for title may be limited or enlarged by the operation of other covenants in the same deed has, upon both sides of the Atlantic, arisen in cases between express cove- nants, and, in the United States, as has already been partially seen, between express covenants and those implied by local statutes.^ Covenants for title are of course eitlier general — that is, cove- nants against the acts of all persons whomsoever claiming by title — or limited, that is, covenants against the acts of the cove- nantor or some other particularly named person ;^ and in the latter case they are of course not broken by the acts of any others than those named.* But it sometimes happens that, through accident or carelessness, one or more limited covenants are found with one or more general covenants in the same conveyance, hence presenting the contradic- tion of a vendor being only willing to covenant against his own acts, while at the same time he covenants against those of all persons, and whether, under such circumstances, the general cove- ' Upon the authority of Hesse v. Stevenson, Gainsforth v. Griffith, Smith v. Compton and Howell o. Richards, cited infra, p. 506 et seq., and of Alexander V. Schreiber, supra, p. 493. In Crum v. Loud, 23 Iowa, 219, all the covenants were express. " Although for the sake of conyenience such statutory covenants are some- times thus called implied covenants, yet it must be borne in mind that the stat- utes invariably declare that they shall be deemed to be express covenants. ' The form by which the covenants are thus restricted is given in the second chapter, supra, pp. 26, 28 ; but, as Sugden observes, " although this is the usual and technical manner of restraining covenants, yet an agreement in any part of a deed that the covenants shall be restrained to the acts of par- ticular persons will be good, notwithstanding that the covenants themselves are general and unlimited ; " Sugden on Vendors, 493 ; Brown v. Brown, 1 Lev. 67 ; see infra. * Supra, pp. 25, 28, 125. 32 498 IMPLIED COVENANTS, AND HOW COVENANTS nants are to enlarge those which are limited, or whether they are to be restrained by them, is often a question of some perplexity and importance ; ^ for, on the one hand, as has been said, " how- ever general the words of a covenant may be, if standing alone, yet if from other covenants in tlie same deed it is plainly and irre- sistibly to be inferred that the party could not have intended to use the words in the general sense which they import, courts will limit the operation of the general words ; " ^ and, on the other, the applica- tion of the maxim, verba cartarvm fortius accipiuntur contra profe- rentem, would forbid the limitation of general covenants, unless the intention clearly appear on the face of the instrument. Sugden has considered that four propositions can be deduced from the authorities, viz. : — First. Where restrictive words are inserted in the first of seve- ral covenants having the same object, they will be construed as extending to all the covenants, although they are distinct. Second. Where the first covenant is general, a subsequent limited covenant will not restrain the generality of the preceding covenant ; unless an express intention to do so appear, or the cove- nants be inconsistent. Third. As on the one hand a subsequent limited covenant does not restrain a preceding general one, so, on the other hand, a pre- ceding general covenant will not enlarge a subsequent limited covenant. Fourth. Where the covenants are of divers natures, and con- cern different things, restrictive words added to one shall not con- trol the generality of the others.^ ' " Every case must depend upon the particular words used in the instrument before the court, and the distinctions -will be found to be very nice and difficult ; " note to Gainsford v. Griffith, 1 Saund. 69. ^ Per Lord Alvanley in Hesse v. Stevenson, 3 Bos. & Pull. 575. ^ Sugden on Vendors, 493. Piatt has arranged the cases under two heads : 1. Where words of qualification in the first part of a deed will apply to and limit covenants in general terms in a. subsequent part of the deed; and, 2. Where a qualification in the latter part of the instrument will narrow a preceding covenant expressed in general language ; Piatt on Covenants, 3o8. Many of the cases, however, cited by Piatt under the second head are placed by Sugden under the first. Mr. Dart, in quoting the above classification of Sugden, observes: "Of the above propositions, the first, if read in connection with the above classifica- tion of the covenants and of their separate objects, seems to be warranted by the authorities ; the second proposition (which together, or rather as connected with the first, has been disputed in Sweet's edition of Jarman on Conveyancing, FOR TITLE MAT BE LIMITED OE QUALIFIED. 499 First. The case of Browning v, Wright^ is a leading one upon the subject of one covenant being restrained by another, and is generally classed under the first of these heads. In a deed pur- porting to convey an estate of fee-simple, there was, first, a war- ranty ^ by the covenantor against himself and his heirs, followed by a covenant that, notwithstanding any act done by him, he was seised, &c., without any manner of condition or restraint to alter or defeat the estate granted, " and that he had good right and full power to convey the same in manner aforesaid" and then followed limited covenants for quiet enjoyment and for further assurance. The covenantee was evicted '^ by a title not within the limited cove- nants, and on a demurrer to the declaration it was argued, on his behalf, that to adopt the rule contended for by the defendant — Tol. ix. p. 383) is, perhaps, hardly accurate ; for although a prior general cove- nant will not, it appears, be restrained by a subsequent limited covenant having a different object, yet where two covenants relate to the same object, restrictive words in the second may, it seems, control the generality of the first. The third and fourth propositions seem to be unimpeachable;" Dart on Vendors (4th ed. p. 723). Some of the authorities, -however, do not appear to take any distinction between cases where a general or unlimited covenant precedes a i special or limited one, and where it follows it ; in other words, the mere priority of position in the conveyance of one over the other seems very often to be thought a matter of little or no moment. Thus, in Iggulden v. May, 9 Ves. 325, it was said the exposition must be both ex antecedentibus et ex conse- quentibus, and in a note to Gainsford v. Griffith, 1 Saund. 60 a, where some dis- tinctions are noticed with respect to this matter of priority, Serjeant Williams observes, " It is questionable whether much regard would now be paid to this mode of construction. The chief object of courts of law at present is to discover i^ the true meaning of the parties, and to construe the covenants accordingly. As far as the difference above laid down would tend to find out the intention of the parties, so far would it now be 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 condition precedent or not, ' that the dependence or independence of covenants was to be collected from the sense and meaning of the parties, and that however transposed this might be in a deed, their precedency must depend on the order of time in which the intent of the transaction requires their performance ;' " Kingston v. Preston, cited in Jones V. Barkley, Doug. 684. So it was said by Dallas, C. J., in Foord v. Wil- son, 8 Taunt. 543, cited infra, p. 503, " The order in which the covenants stand, however transposed, is comparatively unimportant." 1 2 Bos. APuU. 13. ' Expressed as in Williams v. Burrell, supra, p. 470, note, 2. ' It was a constructive eviction. The covenantee became a tenant under the superior title. The reporters doubt, in a note to the case, whether this would be an eviction ; but see supra, p. 161 et seq. 500 IMPLIED COVENANTS, AND HOW COVENANTS that the restriction of the prior special covenants must be engrafted on the subsequent general one — would be to establish the doc- trine that whenever a special covenant was inserted, all general covenants must be restrained thereby. It was, however, said by the court, that if the doctrine did indeed necessarily follow, the de- murrer could hot be sustained, but the question was not whether a special covenant will restrain a general one, but whether tlie par- ticular covenant on which the action was brouglit was general or special, and Lord Eldon ^ (after premising that in conveyances of a fee-simple estate the purchaser was, according to the general prac- tice, entitled to limited covenants only} ^ said, " my opinion upon considering the whole deed is, that it is a special one. What would be the use of the other covenants, if this were general ? It would be of little service to the grantor to insist that the warranty, and the covenants for quiet enjoyment and further assurance, were spe- cially confined to himself and his heirs, if the grantee were at liberty to say ' I cannot sue you on these covenants, but I have a cause of action arising upon a general covenant which supersedes them all.' It appears to me, from the words and context of the deed, that'in such case we should be driven to say, that the grantor intended at the same time to give a limited and an unlimited warranty. The true meaning, therefore, of the covenant is, that the grantor has power to convey and assure according to the terms used, to which terms he refers by the words, ' in manner aforesaid,' namely, ' for and notwithsta/uding any thing by him done to the contrary.' " ^ ' Then Chief Justice of the Common Pleas. ' As to this, see supra, p. 30 et seq. ' Lord Eldon added, " With respect to the cases which have been cited, it is to be observed that when a general principle for the construction of an instru- ment is once laid down, the court will not be restrained from making their own application of that principle, because there are cases in which it may have been applied in a different manner. The principle being once acknowledged, the only ditficulty consists in making the most accurate application of it." In the early case of Nervin v. Munns, 3 Lev. 46, the vendor covenanted that notwithstanding any act done by him to the contrary, he was seised in fee, — that he had good right to convey, — that the lands were clear of all incumbrances made by him, his father or grandfather, and that the vendee should quietly enjoy the estate against all persons claiming under the vendor, his father or grandfather ; and it was held that the second covenant, though general, was restrained by the jirst to acts done by the vendor. So in Gervis u. Peade, Cro. Eliz. 61-">, tenant pur autre vie made a lease for twenty-one years, and covenanted that he had not done any act to prejudice the said lease, but that the lessee should enjoy it against FOE TITLE MAT BE LIMITED OR QUALIFIED. 501 An early case in New York ^ was somewhat similar to Browning V. Wright, and was decided upon its authority. An undivided moiety of laud was conveyed, "containing, by estimation, six hundred acres, and the same is hereby covenanted and warranted to con- tain at least five hundred acres." Tliere was a limited covenant that in case of eviction from all or any part of the granted premises, the grantor sliould not only refund a proportional part of the con- sideration-money, but should pay the value of the improvements, all persons. The cestui que vie died, and the lessee, being evicted, brought cov- enant against his executor, " and it was adjudged that it lay not, for the last words, ' but that he shall enjoy it against all persons,' refer to the first words, viz., ' for any act done by him,' and so the covenant is not broken." So in Clan- rickard v. Sidney, Hob. 273, where in a grant of the third part of certain landa there was a covenant for quiet enjo3ment of such third part, and a general cov- enant for further assurance, it was held that the latter was " restrained to the limits of the bargain, being joined to the former covenant of enjoyment under the same line and covenant as depending upon it, which was expressly only of the third part." So in a recent case in the Irish Chancery, Martyn v. M'Namara, 4 Dru. & War. 424, certain fee-simple estates and also lands held under leases for life renewable forever were conveyed to trustees under a marriage settlement, with a covenant by the settlor with the lady's father that the property was of a given value, followed by a general covenant for good title, and then a particular covenant by the settlor during his life to renew these leases ; then succeeded limited covenants for quiet enjoyment and for further assurance. " The first and third of these covenants,'' said Sugden, Ch., "are limited, the first relating to value, and the third to acts to be done by the covenantor during his own life ; but the second covenant for good title, considered by itself, would appear to be gen- eral, and the question would be whether, looking at the rest of the deed, at the subsequent covenants for title by the settlor and his son, the covenants for quiet enjoyment and for further assurance, which are strictly limited to the acts of the covenanting parties themselves and those claiming under them, it would not be inconsistent with the general tenor of the deed to hold that this second covenant should be construed as unlimited, so as to bind the parties in an absolute and unrestricted manner. The subsequent covenants 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 same 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 cause prove defective, and that not to the party who would be the proper hand to re- ceive the money for the benefit of the wife and issue of the marriage. . . . The settlor 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 saying expressly, "I am not now to decide the question as to the legal extent of this covenant." ' Whallon V. Kauffman, 19 Johns. (N. Y.) 98. 502 IMPLIED COVENANTS, AND HOW COVENANTS &c. Then followed a covenant for seisin and right to convey " in manner and form aforesaid." " There were also," the report says, " covenants for quiet enjoyment, against incumbrances, for further assurance, and a warranty," but whether these were general or limited is not mentioned. In the course of the prior conveyances from the original patentee to the defendant, there had been some reservations of certain parcels of the land, amounting altogether to several hundred acres, and although the plaintiff had actually re- ceived, under his deed from the defendant, over seven hundred acres exclusive of these reservations, he contended that the cove- nant for seisin, being general, was broken as to these parts — that by warranting that there should be five hundred acres at least, the inference was that there might be more, and, if more, that the covenants were to extend to it. As it has been conclusively settled that covenants for title do not extend to the quantity of land conveyed, unless such clearly appear to be the intention,^ it is difficult to perceive how there could, on this ground, have been a doubt as to the decision. The case was, however, considered by the court without reference to this principle, and it was held that the first warranty, being only to the extent of five hundred acres, the other covenants went no further, — the words, " in manner and form aforesaid," being sufficient to connect them with this limited covenant. 2 ' See infra. ' Davis V. Lyman, 6 Conn. 252, was a very clear case. In a conveyance of a fee-simple estate, the vendor covenanted that he had done no act to affect the title, and that the premises were clear of all mortgages, judgments or liens of the said parties of the first part, of any nature or kind whatsoever, followed by a limited covenant of warranty, and it was held that all the covenants were lim- ited, which W.1S unquestionably correct, not only on account of the intimate con- nection between the first and second covenant, but from the very words of the covenants. The case of Miller v. Heller, 7 Serg. & Rawle (Pa.), 32, maybe here noticed. Miller had, in June, 1789, purchased land at sheriff's sale, as the estate of Mounce Jones. In November of that year, and while Jones was still in possession. Miller assigned his estate in the land to Heller, giving him a bond with this recital and condition: "Whereas, George Miller abovesaid, by a cer- tain assignment on a deed executed by the sheriff of Northumberland County to him, the said George Miller, for certain premises therein described, did grant, bargain, sell and convey the said premises by a warranty in said assignment men- tioned, unto him, the said John Dieter Heller, and to his heirs and assigns for- ever ; now the condition of the above obligation is such, that if the above bounden George Miller or his heirs shall and do deliver peaceable possession of said pi em- ises to said John Dieter Heller or his heirs, at or before the fifteenth day of FOR TITLE MAY BE LIMITED OR QUALIFIED. 503 Browning v. Wright was followed in England by a case ^ where the assignor of a term for years covenanted that he had done no act to incnmber, — that notwitlistanding any such act the lease was a good and subsisting one, — and that he had good right to assign in mannner aforesaid. Notwitlistanding it was urged, with much force, that in the conveyance of a leasehold estate, where tlie title could not be so easily examined as in the case of a freehold,^ the purchaser must expect greater security from the covenants, it was clearly hold by the court that the intention of the parties was April now next, and warrant and defend the said premises against the present possessor, Mounee Jones, and all and every person attempting to hinder said John Dieter Heller or his assigns from taking possession thereof as is aforesaid, and against said George Miller and his heirs and assigns, then the obligation to be null," &e. Miller brought an ejectment against Jones, in which he recovered possession, and delivered it to Heller; but the latter, being afterwards evicted by Nicholas Jones, who claimed under Mounee Jones, brought debt on the bond. The court held, however, that the condition in the bond was evidently limited in its application to Mounee Jones himself, and not only did not extend to any one claiming under him, but was confined to the single act of putting the plaintiff in possession at or before a certain time, and this having been done the condition of the bond was satisfied. So, on the other hand, in Ireland v. Biroham, 2 Scott, 207, 2 Bing. N. C. 90, it was held that a covenant for quiet enjoyment was tied up until the lease to which it related should be a lease in possession. The defendant and another leased to the plaintiff the residue of a term of thirty years granted in August, 1815, to commence on the expiration of a lease for twenty-one years granted in November, 1815; that is to say, the residue then demised was to commence in 1836. The lessor covenanted severally but not jointly, nor the one for the other, that the plaintiff, paying the rent reserved and performing the other covenants in the lease contained, should, during the term demised, quietly enjoy the premises without disturbance of the defendant or his co-lessor, or of any person claiming by, from or under them or any of them. This co-lessor having failed in payment of the rent due to the original grantor of the lease, the latter, in 1827, evicted the plaintiff, who had been previously in possession under the lease of November, 1815, who then brought covenant, and it was held by the court (Tindal, C. J.) that the covenant in question was tied up to a covenant for quiet enjoyment during the term, — that the words, the pla,\ntil£ paying the said rent, &e., should, during the term thereby demised, quietly enjoy, was a conditional covenant, and the condition was only to be performed when the lessee should be in possession of the premises under the lease ; it was, therefore, only a prospective covenant for quiet enjoyment for a term, to commence in 1836, and as the condition could not take effect till that period should have arrived, so neither could the obliga- tory part of the covenant. ' Foord V. Wilson, 8 Taunt. 643; 2 J. B. Moore, 592. " See infra. 504 IMPLIED COVENANTS, AND HOW COVENANTS too plain to be gotten over, — that the words " and that " connected the general covenant with the preceding limited one, and that the case was not distinguishable from Browning v. Wright, the only difiFerence being as to the nature of tlie estate transferred. A later case went further tlian these. ^ The vendor of a term for eleven years, if S. C. should so long live, covenanted that notwith- standing any act done by him, the lease was valid, and that the same and the term of eleven years therein expressed were respec- tively in full effect, and in no wise determined or prejudicially affected otherwise than by effluxion of time ; and also that notwith- standing any such act the vendor had full power to sell for the residue unexpired by effluxion of time ; then followed limited covenants for quiet enjoyment and for further assurance. The life, however, on which the lease depended, had dropped before this assignment, and the covenantee was evicted by the remainder-man. It was urged for the plaintiff that the words in the second covenant, " otherwise than by effluxion of time," rendered the idea of its restriction non- sensical, as effluxion of time could have been no act of the cove- nantor, but it was nevertheless held ^ that these words were indeed ' Stannard v. Forbes, 6 Ad. & Ell. 572 ; 1 Nev. & Perry, 633. ' "In perforjiiing this task on any particular occasion," said Lord Denman, " we are not likely to derive much assistance from the former decisions that may be cited, as every instrument varies in some respects from all others, and must be interpreted according to its own language. 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 contravention of it. Such a course might indeed be- come necessary, for a deed may contain repugnant clauses ; where these occur, the authorities fully warrant us in comparing the clause under immediate consid- eration with all which precedes and follows it, even though not forming parts of the same sentence, and with the nature of the obligations entered into, for the purpose of discovering and effectuating the intention really expressed by the parties." In ail these cases it will be observed that the words of connection be- tween the covenants were copulative conjunctions. But in Broughton v. Conway, Dyer, 240 (see this case approved by Lord Ellenborough in Gale v. Reed, 8 East, 89, and applied to covenants contained in an agreement for the dissolution of 11 partnership), a covenant that the vendor had not done any act whereby the grant might be in any manner impaired, but that the latter might enjoy without the disturbance of him or any other person, was held to be confined to acts done by the vendor; though of this case Sugden remarks that, "Certainly there were express words to get over, namely, ' or any other person,' which circumstance does not occur in any other of this line of cases, in all of which the reader will FOR TITLE MAT BE LIMITED OR QUALIFIED. 505 unnecessary, but that too strong inferences could not be safely drawn from that quality in legal documents ; that on the otlier hand, the absurdity of guarding himself from covenanting against any acts but his own, and in the same breath covenanting that the term was not affected by the acts of any person whatever, was glaring, and was rendered still more so by the repetition of the qualifying words in the succeeding covenants, and it was held that the case came within the authority of Browning v. Wright. The class of cases, then, which may be said to be based upon Browning v. Wright, appear to decide that where the instrument contains one or more general or unlimited covenants, which are connected with or refer to, and have the same object as one or more preceding limited covenants so as to join the latter with the former, it will be inferred that tlie covenantor intended that all the covenants should be restricted to his own acts or the acts of those claiming under him, and the preceding limited covenants will qual- ify and restrain the general ones ; in other words, when it clearly appears that the covenants are, as it were, cast in one mould, all having the same extent, courts will not pick out one of them in which the limitation is less strongly or distinctly expressed than in the others, and upon it fasten on the covenantor a general liability. In the absence, however, of any such direct connection with or reference to each other as would clearly 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 perceive that no word was rendered inoperative (except perhaps in Stannard v. Forbes, where the words ' otherwise than by effluxion of time ' were rendered inoperative or useless by the construction adopted by the court). But the intro- ductory clause was merely held to extend over all the distinct covenants, in the same manner as a general introduction to a will frequently influences the whole will." In Petes & Jervies's case, cited in the note to Broughton v. Conway, Dyer, 240, " ten&nt pur autre vie leases for twenty-one years, and covenants that he has not done any act, but the lessee shall or may enjoy it during the years. Afterwards, within the twenty-one years, cestui que vie dies ; adjudged that the action of covenant does not lie, for hut refers the words subsequent to the words preceding." The case is the same as Gervis v. Peade, reported Cro. Eliz. 616 ; see supra, p. 500, n. 3. Serjeant Williams, in referring to the case in a note to Gainsford v. Griffith, 1 Saund. 60, says, the cases inserted in the margin of Dyer are of great authority, being collected by Chief Justice Treby. See also as to this Wallace's Reporters, p. 87. 506 IMPLIED COVENANTS, AND HOW COVENANTS produce no effect upon each other, and the former will not qualify the latter. This distinction between the different covenants was briefly rec- ognized in an early case,' and was subsequently carried to its full extent in Howell v. Richards.^ The defendant covenanted that notwithstanding any act done by liim he was seised and had good riglit to convey, " and likewise," that the plaintiff should quietly enjoy without the interruption of tlie defendant or his heirs or any other persons whatsoever, followed by a similar general covenant against incumbrances, " excepting only a chief rent." It was con- tended (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 con- nection whatever between them. Not only were there no such copulative words as to lead to the conclusion that they were all to be considered together, but great stress was laid vipon the different character and object of the limited and of the general covenants. " It is perfectly consistent with reason and good sense that a cau- tious grantor should stipulate in a more restrained and limited manner for the particular description of title which he purports to convey, than for quiet enjoyment.^ He may suspect or even know that his title is, in strictness of law, in some degree imperfect ; but he may at the same time know that it has not become so by an act of his own ; and he may likewise know that the imperfection is not of such a nature as to afibrd any 'reasonable chance of disturb- ance whatever to those who should take under it ; he may therefore very readily take upon him an indemnity against an event which he" considers as next to impossible, whilst he chooses to avoid a re- sponsibility for tlie strict legal perfection of his title to the estate, in case it should be found at any future period to have been liable to some exception at the time of liis conveyance. He may have a moral certainty that the existing imperfections will be effectually removed by the lapse of a short period of time, or by the happening ' Norman v. Foster, 1 Mod. 101, where Hale, C. J., said, "If I covenant that I have a lawful right to grant, and that you shall enjoy notwithstanding any claiming under me, these are two several covenants, and the first is general and not qualified by the second," to which Wylde, J., agreed, and said that one cov- enant went to the title and the other to the possession. 2 11 East, 633. ^ See the remarks of Tilghman, J., in Bender v. Fromberger, 4 Dall. (Pa.) 441, cited infra. FOE TITLE MAY BE LIMITED OR QUALIFIED. 507 of certain immediately then impending or expected events of death, or the Wke ; but these imperfections, thougli cured so as to obviate any risk of disturbance to the grantee, could never be cured by any subsequent event, so as to save the breach of his covenant for an originally absolute and indefeasible title. The same prudence, therefore, which might require the qualification of one of these covenants might not require the same qualification in the other of them, affected, as it is, by different considerations and addressed to a different object ; " and he added that he did not find any case in which the covenant for quiet enjoyment was all one with the cove- nant for title, or parcel of that covenant,^ or in necessary construc- tion to be governed by it otherwise than, as according to the general rules for the construction of deeds, every deed was to be con- strued, — that is, according to the intention of the parties.^ So in Duval v. Craig,^ the vendors covenanted that the premises were free of all incumbrances created or suffered by them or either of them, and that they would, against themselves and all and every person whomsoever, warrant and defend the premises, " with this warranty and no other, to wit, that if the said land or any part thereof shall at any time be taken by a prior legal claim or claims, that then and in such case " they would make good the part so lost with other land of equal quality and quantity, to be adjudged of by two impartial men, &c. " It is contended," said Story, J., who delivered the opinion, " that the two covenants in the deed are so knit together that they are to be construed in connection so that the clause as to an indemnity witli other lands, in case of an ' This distinction between the different natures of the covenants was also ob- served in the opinion delived by Sewall, J., in Sumner v. Williams, 8 Mass. 162, already referred to. " The covenants preceding and the covenants subsequent to the covenant against incumbrances are not of the same import. Covenants respecting the seisin, the power to convey, and the general title, may well consist with a restrictive covenant against incumbrances ; 2 Roll. 250, 1. 5. And, taken together, the several covenants stand unconnected in sense and expression, and uncontrolled the one by the other; " see also Peters v. Grubb, 9 Harris (Pa.), 460. ^ 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 "the thief rent issuing to the lord of the fee, if any such should be due ; " and on the maxim that expressio unius est exclusio alterius,- it might be fairly inferred that this was to be the only exception. s 2 Wheat. (U. S. S. C.) 46. 508 IMPLIED COVENANTS, AND HOW COVENANTS eviction by a prior legal claim, is to be applied as a restriction to both covenants, and if so, then the action cannot be sustained, for the declaration does not allege any eviction, or any demand or refusal to indemnify with other lands. There is certainly consider- able weiglit in the argument. It is not unreasonable to suppose that when the parties had provided a specific indemnity for a prior claim, they mean to apply the same indemnity to all the other cases enumerated in the first covenant. But something more than tlie mere reasonableness of such a supposition must exist to authorize a court to adopt such a construction. The covenants stand distinct in the deed, and there is no incongruity or repugnancy in consider- ing them as independent of each other. The first covenant being only against the acts and incumbrances under the parties to the deed, wliich they could not but know, they miglit be willing to be- come responsible to secure its performance by a pecuniary indem- nity ; the second including a warrant 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 does not necessarily import or justify. It ought to be one in which no judicial doubt could exist of the real intention of the parties to create such a restriction. It cannot be pronounced that such is the present case." ^ So in a recent case in Massachusetts,^ the deed contained a covenant against all incumbrances except a certain mortgage, followed by a general covenant of warranty, and it was claimed for the defendant that the exception of the mortgage ' So in a somewhat recent case in the Irish Queen's Bench (Kean v. Strong, 9 Irish Law R. 7-i, where it was urged that an unlimited covenant for the renewal of a lease was not qualified by a subsequent limited covenant for quiet enjoy- ment) it was said, "It has never been held, and it would be against principle to hold that one distinct express covenant should qualify another express covenant neither grammatically nor substantially connected with the former ; " and see this case infra. " E^tabrook v. Smith, 6 Gray, 572. " The question," said the court, "how far and in what instances words of restriction and qualification annexed to one covenant in a deed conveying real estate are to be extended to other covenants therein, was discussed by Parker, J., in Sumner v. Williams, 8 Mass. 214, and the adjudged cases have since been fully collected and compared in Sugden on Vendors, c. 14, § 3, Piatt on Covenants,- c. 11, § 7, and Eawle on Covenants for Title, 0. 10. It would therefore be a superfluous labor in this case to comment on those numerous decisions and the distinctions between them.'' FOR TITLE MAT BE LIMITED OR QUALIFIED. 509 in the covenant against incumbrances extended to the covenant of warranty, but the court conceived that as the two covenants were not connected covenants, of the same import and directed to one and the same object, the one was not qualified by the other. The defendant might well covenant to warrant against the eviction of the plaintiff by the liolder of the mortgage, though he could not covenant against aZHncumbrances without rendering himself forth- with liable to an action for nominal damages at least for breach of such covenant. In a late case in Ohio, however, where the covenants were practically to the same effect, the authority of this case was denied, and a different construction adopted by the court. ^ In the case of Nind v. Marshall,^ however, the covenants in the assignment of a leasehold were, that notwithstanding any act done by the seller, the lease was a valid one, and further, that the pur- chaser miglit peaceably enjoy without interruption from the seller, his executors, &c.,or any other person or persons whomsoever haying or lawfully claiming any estate in the premises, and that free from incumbrances by the seller, concluding with a limited covenant for further assurance. Here, then, were three limited covenants, and one — the covenant for quiet enjoyment — unlimited, if it were to be construed as standing alone. The plaintiff having been evicted by a title paramount to that of the defendant, it was strongly urged that the case was identical with Howell v. Richards, the limited covenants being those which assured the title, and the absolute one that which assured the possession, and hence the rea- soning of Lord EUenborough was directly applicable, and further, that a different construction would render inoperative the words, " or any other person or persons whomsoever." It was, however, held ^ that the case was distinguishable from Howell v. Richards, which, it was said, proceeded mainly upon the exception of a chief rent from the covenant against incumbrances, which thereby indi- cated that witli that exception the covenant was to be a general one ; but that in this case the covenant against incumbrances, which was unquestionably limited, was intimately connected with that for quiet enjoyment ; so much so, that there would be no use of superadding that no judgment suffered by the covenantor should ^ Bricker v. Bricker, 11 Ohio St. R. 2i0. The weight of reasoning and authority would, however, seem to rest with the Massachusetts decision. ' 1 Brod. & Bing. 319 ; s. c. 3 Moore, 702. " Dallas, C. J., Richardson and Burroughs, JJ. (Park, J., dissenting). 510 IMPLIED COVENANTS, AND HOW COVENANTS operate to the covenantee's disturbance, if the covenant for quiet enjoyment were to stand absolute and unqualified, tliat no lawful claim whatever should operate to his disturbance. With respect to the generality of the expression, " all persons whomsoever, I think," said Dallas, 0. J., "that those must be construed to mean persons of the description in the other covenants, that is, persons claiming under the covenantor, or persons claiming under them." But Park, J., in dissenting, observed that the circumstance of the chief rent in Howell v. Richards formed no ingredient in the judgment in that case ; " it was not even hinted at, and was only mentioned by Lord EUenborough in stating the record; " and indeed the distinction taken by tliat learned judge (which Sugden has observed to be a very just one), between the different natures of the covenants, seems not to have been ob- served in Nind v. Marshall. ^ ' In Dickinson v. Hoomes, 8 Gratt.'(Va.) 353, the authority of Nind v. Marshall was relied upon, but not sustained by the court. A testator had devised to each of his sons, John, William, Richard and Armistead, to his daughter Sophia, and to his grandson John, certain lands, and directed that if any should die, without issue living at his death, his estate should be equally divided between the survivors. All these devisees survived the testator, and took possession of the estates respectively devised to them. Some years after, John sold 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 John Hoomes for himself and his heirs, and the said William, Richard, Armistead, and Wilson Allen, and Sophia his wife, for themselves and their heirs, as contingent devisees or legatees, under the will of Col. John Hoomes, deceased, by whom said land was devised to John Hoomes, do hereby covenant and agree to and with the said (purchaser) that they will warrant and defend the fee-simple estate and complete right and title to the said two tracts of land, to him, his heirs and assigns forever, against themselves and their heirs, and against the claim and demand of any person or persons claiming from, by or under them, in virtue of the will aforesaid, and do relinquish and fully confirm to the said (pur- chaser) all the right they or their heirs now have, or might or may hereafter have, to said land or any part thereof, to him and his heirs and assigns for- ever, free from the said John, William, Richard, Armistead, Wilson Allen and Sophia his wife, and their heirs, and of all other persons in the whole world." John, the vendor, and William, his brother, subsequently died with- out 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 de- vised to John (the vendor), filed a bill for a partition which was sustained (see Dickinson v. Hoomes, 1 Gratt. 302), when the purchaser filed a bill to restrain these proceedings, on the ground of other estates having come by descent to the children of Richard, who, it was claimed, were liable on the FOR TITLE MAT BE LIMITED OR QUALIFIED. 511 In considering these two cases, their difference seems to be this. In Howell v. Richards it was by no means clear that the cove- nantor 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 i-eason tliat a covenantor might not feel safe in warranting the absolute perfection of his title, though he would feel justified in warranting against the impvobable consequences of a flaw in it. Here, then, the apparent intention of the covenantor, and the rule verba cartarum fortius accipiuntur contra proferentem went together, and the two cove- nants were accordingly held to be unlimited. But in Nindi;. Mar- shall, if the intention of the covenantor had been that one of the covenants should be unlimited, as it might seem on the one hand to be from the use of the words " and all persons whomsoever," the direct words of connection with the other limited covenants would have to be disregarded ; while on the other hand, if the intention were that all the covenants should be limited to his own acts, the words " and all persons whomsoever," would either have to be disregarded, or receive a somewhat forced construction. There can be little doubt that the latter was the intention of the drafts- man, who evidently had not in his mind the train of reasoning noticed by Lord Ellenborough, and in this dilemma, the intention of the covenantor was construed with much liberality. ^ covenants of their father. It was contended for the defendants that the cove- nant of warranty was obviously restricted to the claims of Richard, " as con- tingent devisee," only, and not in any otlier 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, however, by the court, that the covenant of the father did extend to the present claim of his children. In this case, the student must not mistake the dissenting opinion of Moncure, J., which is fifty-five pages long (pp. 383-438) , for the opinion of the majority of the court, which was delivered by Allen, J. (p. 438), and occupies but a single page, as the former opinion is printed first, immediately after the argu- ments of counsel. ' Indeed, the rule of law which puts a strict construction on the words of the party using them, is as to this subject seldom or never applied, except where the intention of the covenantor evidently harmonizes with the rule, and its application is therefore useless. It is certainly hard on the one hand that the use of a certain form of expression should fasten upon a party a liability where there are other expressions which raise a doubt as to whether he intended that such should be the case ; but as was said by Bay ley, J., in Barton b. Fitzgerald, 16 East, 546, " I admit that the words of a covenant may be restrained by other words in the deed, if we can see a clear intention to 512 IMPLIED COVENANTS, AND HOW COVENANTS In a somewhat recent case,^ a house which had been the property of Ann Hopley was, after her death, sold by her daughter as her heir, whose husband covenanted with the purchaser that notwithstanding any act or default of him, his wife, or Ann Hopley, the grantors were seised — that notwithstanding any such act or default, they, or one of them, had good right to convey — that the covenantee should quietly enjoy without interruption from them or either of them, or any one claiming under Ann Hopley — and tliat the grantors, and every one claiming under them or under Ann Hopley, should malie further assurance upon reasonable request. It turned out that the daughter was illegitimate, and the purchaser was evicted by the rightful heir. It was clear that the only covenant upon which the restrain them from the other parts of the deed. But it would be a very danger- ous rule if it were to be applied to every case where ingenuity can show that by giving the natural meaning to the words of the general covenant, other words in other parts of the deed might be rendered nugatory." This case of Barton v. Fitzgerald depended, as Sugden says of it, on very particular circumstances. In an assignment of a lease, reciting the lease to be for the term of ten years, there was a covenant that the vendor had done no act to incumber, except an underlease, " and also," that the lease was subsisting, and not void or voidable, together with limited covenants for quiet enjoyment and for further assurance. It turned out, though there was no mention of it in the recital, that the lease was for ten years, if another should so long live, and upon the death of the cestui que vie the term expired, when the purchaser brought covenant. It was held by Lord Ellenborough, the othsr judges concurring, that the second covenant was general and unlimited, and could not be restrained by the limited ones. The opinions proceeded mainly on the recital, which was, that the premises Tvere demised for a term of ten years, and that by assignment in the following year they had become vested in the then assignor tor the remainder of the term. " Then when he covenants," said Le Blanc, J., " that the lease is valid in law for the premises thereby assigned, is not that a covenant that it is a lease valid for the whole term for which it is before expressed that it had to run ? " and Lord Ellenborough said, " If the rest of the covenants had imported a contrary intent to the general words then appearing to have been improvidently introduced into one part of a deed, the case would have admitted of a different consideration." In the very recent case of Coates v. Collins, Law. R. 6 Q. B. 469, a tenant for three lives conveyed, with the ordinary covenants for title limited to his own acts, and a covenant that the lease was a good, valid and subsisting lease in the law for the said three lives, and not forfeited, surrendered or become void or avoid- able. One of the cestuis que vie being then dead, the assignee brought covenant, but the court held, though with much doubt and one judge dissenting, that the mention of the three lives was mere matter of description, and that the covenant only amounted to a covenant that the lease was still subsisting, and not that the three lives were still in existence. ' Young V. Raincock, 7 C. B, 310. FOR TITLE MAT BE LIMITED OR QUALIFIED. 513 plaintiff could recover was that for quiet enjoyment, as the entry of the heir was not caused by any act or default of Ann Hopley. The defendant therefore contended, on the authority of Browning v. Wright and Nind v. Marshall, that the restrictive words must be drawn down from the first two covenants and embodied in the third, but the court ordered judgment to be entered for the plaintiff.^ So where,^ in the assignment of a lease from the plaintiff to the defendant, the latter covenanted that he would, during so long as he should be in possession of the rents and profits, pay to the original lessors the rent reserved, and perform the covenants contained in the lease from them to the plaintiff, and keep him harmless and indemnified of and from the rents and covenants. The breach assigned was that certain rents became due to the owners of the reversion, which the plaintiff was obliged to pay, and the jury ' "It cannot be disputed," said Coltman, J., who delivered the opinion of the court, " that the general introductory words of one of the usual covenants for title may be drawn down in this way and applied to others in which they are not to be found, where, from what is found in other parts of the deed, it appears that such must have been the intention of the parties. But, admitting this prin- ciple, the question will remain, what reason there is for introducing into the present covenant, by implication, a restrictive clause which is not found in it. The covenant, read without the restrictive clause, seems to be a reasonable and usual one. The estate in question is recited to have been purchased by Mrs. Hopley, and is sold by one purporting to represent her as heir. On such a con- veyance, it would be reasonable to expect that the estate should be cleared from any charges from Mrs. Hopley downwards to the present purchaser, and, accord- ingly, the covenant, as it stands, is a covenant for quiet enjoyment against any lawful let, &c., by Kaincock and wife, or by any other person lawfully or equita- bly claiming from or under Raincock and wife, or either of them, or the said Ann Hopley. The covenant, as it stands, without the restrictive 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 sought to introduce into the covenant for quiet enjoyment are to be considered as introduced into it, and have the effect contended for, — that the entry by Peter Hopley, not being occa- sioned by any act or default of Mrs. Hopley, is not a breach of the covenant for quiet enjoyment, — this inconsistency will result from it, that the covenant for quiet enjoyment will not extend to protect the purchaser from a disturbance by Peter Hopley, but the covenant for further assurance will entitle the purchaser to a conveyance from Peter Hopley of his right to the estate, or in case of refusal, entitle him to maintain an action against the present defendant for such refusal." 2 Crossfield u. Morrison, 7 C. B. 286. 83 514 IMPLIED COVENANTS, AND HOW COVENANTS having found that the defendant was not in possession of the rents and profits at that time, the latter contended that the covenant to indemnify was restricted to such time as he should be in possession. But the court held that the possibility of a resale must have entered into the minds of the parties. On sucli sale taking place, it was to be expected that covenants would be entered into by the purchaser to perform the covenants of the original lease, but the purchaser might make default in performing them, and it was therefore rea- sonable the plaintiff should require from the defendant a covenant to indemnify him against any breach of those covenants. It was therefore held that the covenant to indemnify was not restricted, and judgment was entered for the plaintiff non obstante veredicto?- Second. But where the first covenant is general, a subsequent limited covenant will not restrain the generality of the preceding covenant, unless an express intention to do so appear, or unless the covenants be inconsistent.^ In an early case," on an assignment of a lease, the vendor cove- nanted that it was a valid lease, and should so endure during the remainder of the term, which was followed by limited covenants for quiet enjoyment and against incumbrances; and it was held that the generality of the preceding covenant was not restrained by tlie latter.* So where,^ on an assignment of certain shares in a ^ In Belcher v. Sikes, 8 Barn. & Cress. 185, on the dissolution of a copart- nership for supplying the navy 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 premises thereby assigned, without any let, suit, interruption or denial of the assignor, his executors or administra- tors, or any person claiming under 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. ' This proposition was approved in Peters v. Grubb, 9 Harris (Pa.), 460 (see the case supra, p. 189), as also in Rowe v. Heath, 23 Tex. 619, citing the text. In Crum v. Loud, 23 Iowa, 220, the question arising under such cove- nants was left undecided. The student must not mistake the only printed opinion, which is the dissenting one, for the opinion of the court. ' Gainsford v. Griffith, 1 Saund. 58. " Lord Eldon said of this case (in Browning v. Wright), that the assignor seemed to have said, " I not only covenant for the goodness of my title, but that you shall enjoy under that title, without any interruption from me." In the elaborately reasoned case of Sumner v. Williams, 8 Mass. 162, the members of Hesse v. Stevenson, 3 Bos. & Pull. 565. FOE TITLE MAT BE LIMITED OR QUALIFIED. 515 patent for paper-making, there was a covenant of full power and authority to make the assignment, and that the covenantor had not done any thing to forfeit any right or authority he ever had, &c., Lord Alvanley held, that unless it irresistibly appeared that the parties could not intend to make a general covenant, the court ought not to indulge them in leaving out words which are ordi- narily introduced, and by which the real meaning of the parties might be plainly understood ; and as the words, " notwithstanding any act done by him," were omitted from the first covenant, the omission of these words was of itself decisive, as the attention of the purchaser was not called by any words to the intent of the vendor to confine his covenant to his own acts,^ and it was well added, that the rule of construction in Browning v. Wright had never been carried to such a length as to decide that because some clauses are introduced into a deed which do not add to the security provided by the other clauses, the security so provided is to be restrained.^ the court differed as to the effect produced by the insertion of a limited covenant against incumbrances between preceding an(i subsequent unlimited covenants for seisin and of warranty, Parker, J., being of opinion that the limited cove- nant qualified the others, which might be considered " as limited and restrained in their operation by the whole context of the deed." There were special cir- cumstances connected with these covenants, which might tend to lead to this conclusion. They were made by administrators, and although a majority of the court held them personally liable on their covenants, yet the circumstance of their acting en autre droit, did certainly, as the learned judge remarked, aid the construction. It was, however, said by Sewall, J., that " covenants respecting the seisin, the power to convey and the general title, made without restriction, may well consist with a restrictive covenant against incumbrances. And taken together, the several covenants recited stand unconnected in sense and expres- sion, and uncontrolled the one by the other.'' ' It should, however, be noticed of this case, that there are many reasons why the covenants in the assignment of such a patent should be interpreted with the greatest strictness against the party making them. In England, it seems that general covenants for title are usually required in such assignments ; 2 Davies' Conv. 455 (2d ed.). See supra, Ch. II. ' In Atty.-Gen. v. Purmort, 6 Paige (N. Y.), 620, there was a general warranty to the grantee and his heirs, " and if he or they shall be legally evicted, to pay the value of the premises with the improvements at the time of such eviction, with the legal and necessary charges of defending the same, if hy reason of any incumbrance of the said parly of the first part, his heirs or assigns." This deed was delivered as a general warranty deed, the clause in italics being inserted in the handwi-iting of the grantor, who was an attorney, at the end of the covenants, which were printed ; and it was urged that the grantor intended 516 IMPLIED COTENANTS, AND HOW COVENANTS But in an early case in New York, the vendor covenanted that he was well seised of the premises, and had good right to convey them, to which was added a covenant of warranty " against all claims and demands whatever, except the lord of the soil" and it was held that these words expressly declared to the grantee that there was a lord of the soil, and it could not be supposed that the grantor could, in one line, covenant absolutely that he was seised, when he admitted, and it was so understood by both parties, that there was a lord of the soil, who, in the next covenant, was excepted from its operation. The exception was, it was said, manifestly intended to apply to both covenants.^ So in a case in the Ex- chequer,^ the first two covenants, viz., for good title and for right to convey, were unlimited ; the last two, for quiet enjoyment and against incumbrances, were limited to the acts of the covenantor, but the court held that it was the intention of the covenantors by the first two covenants to bind themselves that the vendees should by this clause to restrain and qualify all his prior covenants for title (as was also the case in Crum v. Loud, 23 Iowa, 219), and therefore fraudulently delivered the deed as containing a general warranty. But Walworth, Ch., said, " I think it very evident from the whole transaction that the written clause was inserted in the deed by him for a different and much more honest purpose. The printed blank used upon that occasion was from a form which I had myself prepared and had printed, to be used only in special cases. And the concluding clause, making the grantor liable in case of eviction for the full value of the premises, with the improvements at the time of such eviction, without reference to the amount of the consideration expressed in the conveyance, was not usually inserted in full covenant warranty deeds. The defendant had a right to the written qualification of this extraordinary and unusual covenant to the case of an eviction, on account of an incumbrance created by himself. I am satisfied, therefore, that he inserted the written clause for this purpose only, and not to qualify or alter the legal effect of the other covenants in the conveyance." ' Cole V. Hawes, 2 Johns. Cas. 203. The student should be careful not to rely too strongly on this case in practice. In Phelps V. Decker, 10 Mass. 267 (cited supra, p. 71, n. 3, as to another point), after the description of the premises, it was said, " the above is warranted from all claims and demands whatsoever, as far as the Connecticut and Susquehanna Company Purchase extends, and is regularly made ; " then followed general cove- nants for seisin, of right to convey, for quiet enjoyment and of warranty. The defendant pleaded that all the estate of the Susquehanna Company came to, and was vested in the plsiintiff, which, on demurrer, was held 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 Susquehanna Company. ^ Milner v. Horton, M'Clel. 647. FOR TITLE MAY BE LIMITED OR QUALIFIED. 517 have a good estate so far as rested in them, and therefore considered them as qualified by the subsequent covenants. But soon after, this case was overruled by one in the King's Bench,! where the vendor sold by virtue of a power, and cove- nanted that the power was in full force and that he had good right to convey, which was followed by limited covenants against incum- brances, for quiet enjoyment and for further assurance, and the court said that, looking at all the cases which were cited for the defendants, there was only one ^ where a general covenant had been held to be qualified in the manner here contended for, unless there appeared something to connect it with a restrictive covenant, or unless there were words in the covenant itself amounting to a qualification ; and it was further said that having considered that case again since the argument, the court could not feel itself bound by its authority, and therefore concluded that the covenant declared upon, being unqualified in itself, and unconnected with any words in the qualified covenant, must, in a court of law, be considered as an absolute covenant for title. ^ ' Smith B. Compton, 3 Barn. & Adolph. 189. ' Milner jj. Horton, ubi supra. ^ So in an early case in Pennsylvania, Bender v. Fromberger, 4 Dall. 440, which was decided three years after Hesse v. Stevenson, though without referring to that case, Tilghman, C. J., thus introduced 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 appears from a consideration of every part of the deed that no more than a special warranty was intended, it shall be so construed, although the deed in one part contains words of covenant of more general import. To this rule I add the two following ones : That in construing a deed, no part shall be rejected unless it produces 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 conveyance by the words grant, bargain and sell ; a. covenant that the grantor is seised of a good estate in fee-simple, subject to no incumbrances but a certain ground-rent, and a covenant of special warranty. It has been the prevailing opinion that, by virtue of an Act of Assembly passed in the year 1715, the words grant, bargain and sell have the force of a general warranty, unless restrained by subsequent expressions. To qualify the general war- ranty, it has been the custom of scriveners to insert a. clause of special warranty. And I believe it is inserted pretty much as a matter of course, unless in cases where the parties agree on a general warranty. . . . The defend- ant contends that his intent was to give no more th,an a special warranty, because the clause of special warranty is inconsistent with and contradictory to a general warranty. Now, in this, I cannot agree with him. It is certain that 518 IMPLIED COVENANTS, AND HOW COVENANTS So in a case in Massachusetts, a vendor covenanted that he was lawfully seised in fee of the premises, and had good right to sell and convey them to the plaintiff, and that as to a certain portion thereof extending westward from a given bovindary, the same was free of all incumbrances, and he would warrant and defend it against the lawful claims of all persons.^ " It was con- tended by the defendant's counsel," said the court, " that the covenant of seisin was to be considered as limited in the same manner as the other covenants. If the parties had so intended, the special warranty, and more, is included in the general one. It is an inaccu- rate mode of conveyancing; but there is no absurdity or contradiction in making one covenant against yourself and your heirs, and another against all mankind. The special warranty was unnecessary, and it is to be attributed to the ignorance of the scrivener, who probably thought it was a matter of course, without intending to affect the more general preceding covenant ; or perhaps he might think it necessary to guard against the effect of the words grant, bargain and sell, used in the first part of the deed, because the estate was subject to a ground-rent, as appears from the general covenant, in which it is said that the estate is free from all incumbrances except the said ground-rent. It has been urged that it is all one covenant, because the special warranty is connected with the preceding general covenant by the words and that. It is very common to connect a covenant of warranty and a covenant for fuHher 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 conceive it is possible for a man of common sense to declare that he engages that he had a perfect estate in fee- simple, and had a good right to convey such perfect estate, without intending to warrant to a greater extent than against himself and his heirs. These are no technical expressions, but such as every able man understands, which is not the case with a special warranty. To a common man it is not very intelligible that there should ever be occasion to warrant and defend against himself and all per- sons claiming under him, for it is very natural to suppose that when a man has used words sufficient to convey his estate to a third person, he has necessarily done enough to bar himself and all persons claiming under him, without calling in the aid of a special warranty. In short, the insertion of the clause of special warranty is generally the act of scriveners ; but I presume that no scrivener could be so stupid as to insert a covenant that ' the grantor was seised of an indefeasible estate in fee,' unless he had been told by the parties that a general warranty was intended. I am therefore of opinion that the special warranty in this deed has not the effect of controlling the precedent general covenant." Although the decision in this case is no longer law as applied to the statute to which it refers (it having been soon after held that the covenants implied by it were all limited, and none of them general covenants), yet it explains very clearly the general rule which was referred to in Hesse v. Stevenson and Smith V. Compton. ' Cornell v. Jackson, 3 Cush. (Mass.) 506. FOR TITLE MAT BE LIMITED OR QUALIFIED. 519 they would have so expressed their intention in the restricting clause. We cannot add to the language, unless it can be made clearly to appear that a word was omitted by mere mistake. Nothing of this kind appears in any part of the deed, but quite to the contrary ; for if the intention of the parties was to limit all the covenants alike, it would undoubtedly have been so expressed. There was a good reason, probably, why a distinction was made between the covenant of seisin and the other covenant, for if the plaintiff should have been evicted by a paramount title, it would have been a breach of the covenant of warranty and against incumbrances, a paramount title being an incumbrance. But such a title does not affect. the covenant of seisin.^ Most decidedly, therefore, the construction of the deed contended for by defendant's counsel on this point cannot be maintained." ^ Third. As, on the one hand, a subsequent limited covenant does not restrain a preceding general covenant, so, on the other hand, a preceding general covenant will not enlarge a subsequent limited covenant. In an early case,^ one seised of an estate under a grant from the Crown, in conveying it to a purchaser recited the letters-patent and the conveyances from thence down to liimself, and covenanted that he was seised in fee, that he had good power to convey and that there was no reversion in the Crown notwithstanding any act done by him. The court below held that these last words re- strained the generality of the first two covenants ; but this was reversed on writ of error,* and it was held that the restrictive words did not extend to the preceding covenants, " and the only ground on whicli I supposed the court to have proceeded," said Lord Eldon, in speaking of the case, in Browning v. Wright, " is this, that they considered it to have been the intention of the parties that the vendor should enter into an absolute covenant for his seisin in fee in all cases but one, namely, that he should not be liable on the objection of a reversion existing in the Crown,^ ' This expression refers to a peculiar view taken of the covenant for seisin in some of the Northern States, which has been explained supra, p. 56 et seq. 2 See also Rigby v. Great West. Rail. Co., 4 Exch. 220. = Trenchard v. Hoskins, Winch, 91 ; s. c. Litt. R. 62, 65, 203. ■> See 1 Sid. 328, and 1 Saund. 60. " " In grants of land by the Crown," says Sugden, " it is usual to reserve a reversion, which the grantee cannot bar." 520 IMPLIED COVENANTS, AND HOW COVENANTS unless that reversion appeared to have been vested in the Crown by his own acts." Fourth. Where the covenants are of divers natures, and concern diffei-ent things, restrictive words added to one shall not control the generality of others, though they all relate to the same land. Thus in Crayford v. Crayford,i where a vendor covenanted that he was seised in fee, notwithstanding any act done by him or his ancestors ; that there was no reversion in the Crown ; that the estate was of a certain annual value, and that the plaintiff should enjoy the same discharged from all incumbrances made by him or his ancestors, it was held that " the covenant for value was an absolute and distinct covenant, and had no dependence upon the first part of the covenant;" and in a subsequent similar case the construction was the same.^ The comparative absence of American authority upon this sub- ject, which must have been observed by the student, is owing not only to the fact that the niceties of English conveyancing have been but little adopted in this country, but in many of the States some or all of the covenants for title are implied by statute from the use of the words of grant, and all the covenants, when thus implied, have generally been cast in the same mould, so that tliere is no dis- tinction between them as to one being more general or more limited than another. Covenants for title may also obviously be limited and restrained by any express agreement contained in the deed. In an old case, ' Cro. Car, 106. ^ Hughes V. Bennet, Cro. Car. 495 ; s. o. W. Jones, 403. In Rich v. Rich, Cro. Eliz. 43, Lord Rich covenanted that certain lands conveyed to Lady Rich, 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 him, " and the action was brought for that the lands were not of the yearly value of £1,000, but it was adjudged against the plaintiff; for the words ' notwithstanding any act' extend as well to the time of the covenant made as 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." The distinction between these cases is sufficiently obvious. So, also, in the somewhat recent case of Kean v. Strong, 9 Irish Law R. 74, a covenant for renewal was held to be distinct from and unqualified by ■ the covenant for quiet enjoyment. FOB TITLE MAY BE LIMITED OB QUALIFIED. 521 where the covenants were general, the defendant pleaded that it was further agreed in the same indenture that all tlie covenants therein should not extend further than to acts done by the vendor and his heirs, and although the agreement was " a remote one in the end of the deed and far distant from the other covenants," it was nevertheless held to qualify them.^ So where there is a contem- poraneous sealed agreement, as in a case in Texas, where the deed contained a general covenant of warranty, and the condition of a bond executed at the same time was that if the land should be re- covered by any one claiming the same within three years tliereafter, the purchaser was to recover back the amount he had paid the vendor, the court held that the bond was merely a limitation of the amount of damages to be recovered by the vendee in case of eviction within the three years,^ and that after the expiration of that time the gen- eral warranty was in force for the full amount which might be re- coverable at law.^ So, of course, certain defects of title or incumbrances may be ex- cepted from the operation of the covenants or some of them,^ as has been already shown, but such exception must appear clearly on the face of the deed, and cannot at the trial be made out by parol.^ But while this is so, the familiar principles which govern courts of equity in the reformation of instruments on the ground of fraud and mistake apply of course to the covenants for title. Thus in the early case of Coldcot v. Hill,^ the plaintiff having purchased church lands in fee under the title of Cromwell, sold them to the defendant's testator with general covenants for the title, but upon the Restoration the estate was avoided, and the defendant, in an action on the covenants, recovered back his purchase-money, upon which the vendor filed a bill to enjoin the collection of the judgment, " which did suggest a surprise upon the pl,aintiff in getting him ' Brown v. Brown, 1 Lev. 57 ; s. c. 1 Keb. 234. " That is to say, " in that event there should be no claim upon the warrantor for more than the purchase-money without interest, whereas the general warranty would hold him liable for the purchase-money and interest." ' Black V. Barton, 13 Tex. 82. It is conceived, however, that whatever might be the effect of such an instrument as between the parties, it would not affect a purchaser of the land without notice. * Supra, p. 116 ; Gale v. Edwards, 62 Me. 363 ; Estabrook v. Smith, 6 Gray (Mass.), 578. * Supra, p. 118 ; Raymond v. Raymond, 10 Gush. (Mass.) 134. » 1 Cas. in Ch. 16 ; a. o. Freem. 173. 522 IMPLIED COVENANTS, AND HOW COVENANTS into that covenant, and that it was declared by Dr. Coldcot, when he sealed, and the defendant's testator, that it was intended Dr. Coldcot should not undertake any further than against himself; " which appearing upon proof of this,i the purchaser was decreed to enter satisfaction on the judgment and pay costs. ^ A few years after ,^ a bill was filed to enjoin a judgment obtained upon a general covenant that the grantor had lawful power to con- vey, " which being contrary to the true intent and meaning of the said parties, and it appearing so in the conveyance, where the rest of the covenants are restrained to the acts done by the plaintiff and all claiming under him, and that the covenants ought to be so re- strained, especially since the purchaser knew the plaintiff's title, and that he sold him only such estate as he had in the premises,* . . . the court decreed that the general words in this covenant ought not to oblige the plaintiff; being contradicted by all the sub- sequent covenants, and the plaintiff selling only such an estate Which he had," and the defendant was therefore enjoined from ' "Upon tbe hearing, it was proved that the matter of the covenant 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 the defendant's counsel, with the alteration only that whereas the covenant was that the plaintiff was lawfully seised, &c., the plaintiff's counsel put out (lawfully), which signified nothing ; for to covenant one is seised, is intended lawfully. But some proof being that it was declared upon sealing, that the plaintiff should undertake for his own act only, it was decreed that the defendant should acknowledge satisfac- tion on the judgment and pay costs." The report in Freeman says, " The court, upon consideration that the covenant for enjoyment was intended only against acts done by the plaintiff or his trustees, and that the agreement to that effect was fully proved, declared the plaintiff ought to be relieved against the cove- nants inserted in the deeds, and the judgment obtained thereon ; and did therefore decree the defendants to acknowledge satisfaction on the said judg- ment, and to release all errors, and that no more actions should be brought on the said covenant, and for that end awarded an injunction against the defendants." ' The report also says that a, like case to this, between Farrar and Farrer, was heard and decreed after the same manner, about six months before. ^ Fielder v. Studley, Rep. temp. Finch, 90. ■* " And never took any advantage or questioned the plaintiff in any of the covenants in the deed, but continued in the possession, and received the profits thereof for ten years and upwards, and after the Restoration he or his son took a new lease of the Dean and Chapter of Sarum for three lives, and had a con- siderable abatement of the fine, in respect of the purchase made by the plaintiff." FOE TITLE MAT BE LIMITED OR QUALIFIED. 523 proceeding upon his judgment.^ And the same doctrine is fully recognized and applied on this side of the Atlantic.^ Nothing is better settled as a general rule in the construction of deeds, than that in case of a discrepancy in the description of the premises between the distances and the boundaries, the former are controlled by the latter, on the ground that the lesser must yield to the greater certainty.^ And where land is conveyed by a particular description and with an enumeration of the quantity of acres, the latter is held to be matter of description merely, and cannot be deemed an implied covenant for quantity.^ As' therefore the descriptive boundaries control the quantity, it has been repeatedly held that the covenants for title apply to the premises contained within those boundaries, and not to any enu- meration of acres. Thus in an early case in Connecticut,^ where the defendant was sued upon a covenant for seisin contained in a conveyance of one hundred and ten acres of land with certain boundaries, it appeared that the title was good to all the land within ' " This last case," says Sugden, " was quoted in a case in the Common Pleas, before Lord Eldon (Browning v. Wright, supra, p. 499), who thought the decision must have been made on the ground of the intent of the parties appearing on the instrument, since that intent, and the consequent legal effect of the instrument, could only be collected from the instrument itself, and not from any thing dehors. In a still later case in the same court (Hesse v. Stevenson, supra, p. 615), Lord Alvanley thought, under the circumstances of the case, that the application was made to the Court of Chancery to correct the mistake in the same manner as applications are made to that court to correct marriage articles, where clauses are inserted contrary to the intent of the parties. It seems clear, however, that the relief in this case was founded on parol evi- dence that the vendor sold only such estate as he had, corroborated as it was by the form of the deed and the subject of the contract. Such evidence was received in the prior case of Coldcot and Hill, and is still clearly admissible ; " Sugden on Vendors, 609. ^ As, for example, in Metcalf v. Putnam, 9 Allen (Mass.), 99 ; Stanley ». Goodrich, 18 Wis. 505 ; Crum v. Loud, 23 Iowa, 219 ; Rufner u. M'Connel, 14 HI. 168 ; and see supra, p. 129. ' 3 Washburn on Real Prop. 631 ; Powell v. Clark, 5 Mass. 355 ; Jackson ». Defendorf, 1 Caines (N. Y.), 493 ; Jackson v. Barringer, 15 3. has. (N. Y.) 471 ; Jackson v. M'Connell, 19 Wend. QS.Y.) 175 ; Smith v. Evans, 6 Binu. (Pa.) 107 ; Petts V. Gaw, 3 Harris (Pa.), 222; Kruse v. Scripps, 11 111. 103. " Perkins ii. Webster, 2 N. H. 287; Large v. Penn, 6 Serg. & Eawle (Pa.), 488 ; Whitehill v. Gotwalt, 3 Pa. 327, overruling Christine v. Whitehill, 16 Serg. & Rawle, ll?,. * Snow V. Chapman, 1 Root (Conn.), 528. 524 IMPLIED COVENANTS, AND HOW COVENANTS the boundaries, but that there were only ninety acres ; and the court held that the deed granted nothing but the lands lying within the bounds described, and gave judgment for the defendant ; and in a numerous class of cases the same principle has been recognized.^ Of course, however, this rule will not apply where, on the face of the instrument, it appears that the covenants were directly intended to assure a particular quantity to the purchaser.^ This class of cases obviously proceeds upon the ground that the covenants for title apply to what is conceived to be the subject- matter of the conveyance according to the intention of the parties,^ and it has been carried so far as to be held in many cases that where the conveyance is of a limited estate or interest, general covenants for title will be restrained by the extent of that interest.* Thus in an old case,^ where the deed conveyed the third parts of certain premises for the life of the grantor, with covenants for per- fecting the conveyance by further assurance and for well enjoying that which was conveyed, it was held that the covenants could not be taken to assure a greater estate than the third part thus con- veyed, during the life of the grantor .^ So in a recent case in Ireland, ' Mann v. Pearson, 2 Johns. 41; Whallon v. Kauffman, 19 id. 101; Davis V. Atkins, 9 Cush. (Mass.) 13; Roat v. Puff, 3 Barb. S. C. (N. Y.) 353 (where most of the cases are collected) ; Belden v. Seymour, 8 Conn. 19 (Bissell, J., dissenting) ; Rickets v. Dickens, 1 Murph. (N. C.) 343 ; Huntly y. Waddell, 12 Ired. Law (N. C), 33 ; Bauskett v. Jones, 2 Spears (S. C), 68 ; Lorick v. Haw- kins, 1 Rich. Law (S. C), 417 ; Tucker v. Cocke, 2 Rand. (Va.) 51 (overruling Quesnell v. Woodlief, 2 Hen. & Munf. 173) ; Ferguson v. Dent, 8 Mo. 667. ' Morris v. Owens, 8 Strobh. (S. C.) 199 ; Steiner v. Baughman, 2 Jones (Pa.), 106; Pecare v. Chouteau, 13 Mo. 527. 3 Long Island R. R. v. Conklin, 32 Barb. (N. Y.) 388 ; Kilmer v. Wilson, 49 id. 88. * One instance in which general covenants for title are limited by the estate conveyed has already been noticed (supra, p. 449), viz., that in case of a recon- veyance to the vendor, the purchaser's general covenants are nevertheless limited to defects or incumbrances erected by himself, and not to those of the vendor or any one prior to him in the chain of title ; Kellogg v. Wood, 4 Paige (N. Y.), 614 ; Cole v. Lee, 30 Me. 392. ' Clanrickard v. Sidney, Hob. 273 ; supra, p. 501, n. ' " Now, who sees not," said Lord Hobart, "that the office of these cove- nants, when they follow in express grant, is, not to give any thing, but to assist, further and support, being as a wall or monument about it, and therefore cannot be understood to exceed that whereunto they are said to be but handmaids, ac- cording to the rule of the great Master ; the servant cannot be above the master. And because it may appear how absurd it will be to take these covenants as if they stood alone in that respect to the whole content and intent of the deed ; " see_also supra, p. 416. FOR TITLE MAY BE LIMITED OR QUALIFIED. 525 where the defendant purported to convey all the estate and interest which he had under a certain deed, it was held that his covenant that he had good right to make conveyance under that deed was not an absolute covenant that he had a freehold estate, but only that he had power to convey such an estate as he took under the deed.^ So in an early case in New York,^ where a lessee as- signed the lease " in as ample a manner to all intents and purposes as I might or could hold or enjoy the same, and I covenant that I have good and lawful right to bargain and transfer the said premises, as is above written, and that the same are clear of all arrearages of rent and other incumbrances," it was held that the words ." as is above written," qualified the covenants, and that it could not be supposed that the assignor meant to warrant his land- lord's title.^ So in a case in Massachusetts, where the conveyance was of all the grantor's " right, title and interest in and to the un- divided estate devised," it was held that a general warranty which the deed contained, was limited to be an assurance of that particu- lar estate only, and therefore could not be held to operate by way of estoppel in passing an after-acquired estate.* So in a subsequent > Delmer v. M'Cabe, 14 Irish Law E. (N. S.) 377. ' Knickerbacker v. Killmore, 9 Johns. 106 ; and see Calvert v. Sebright, 15 Beav. 156 ; cited infra, p. 530. ^ There may, however, be reasons why, in the assignment of a lease, the cov- enants should be less strictly construed against their maker than is the convey- ance of a freehold ; see supra, p. 603 ; infra. * Blanchard v. Brooks, 12 Pick. (Mass.) 67; see the language of the court, cited supra, p. 394, n. 2. So in Grimes v. Kedmon, 14 B. Mon. (Ky.) 236, where there was an exchange of land, the court said, " Although it is true that the deed of Bates contains a warranty purporting to bind his heirs, and which, to the extent of the value of any heritage descended from him to them, would bar them from recovering merely on the ground that a better title than that which passed by his deed had descended to them from another ancestor, yet as this deed shows explicitly that it is made in consequence and in considera- tion of an exchange of lands, of which it is a part, and in fact the consummation, as it is not only the implied law of such a transaction, but upon comparison of the reciprocal deeds by which it was consummated, and which must be taken together as one transaction, it is found to be the express law of this particular transaction that if either party shall lose by a better claim the land which he has received in exchange, he becomes thereby immediately entitled to the land which he has given in exchange; and, as by the implied law of an exchange, the party thus losing may immediately enter upon the land given in exchange for it, while by the express stipulations of'these parties he who has not lost is bound to restore and reconvey the land which he has received to the party who has lost, quantity 526 IMPLIED COVENANTS, AND HOW COVENANTS case in the same State, the conveyance was of " all my right, title and interest in and to Tiffany's Perry, and the boat which 1 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 tliat 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 same," followed by a general warranty of " the before-granted premises," the grantor in this conveyance being offered as a witness in support of the title in favor of an alienee, was objected to on the ground of his liability on these covenants, but the court held that the covenant was restrained by the previous context of the deed, and consequently that the witness was com- petent. ^ So in a more recent case, where the grant was of " all for quantity, we perceive at once that the general warranty contained in each deed is qualified and restricted, both by the nature of the transaction as an ex- change and by the express stipulation of the other deed, so as to make the lawful eviction of either party from the land received by him an exception to the general terms of the warranty, and thus to free him in such case from the estoppel which might otherwise prevent him from reclaiming the land which he had conveyed with warranty.'' In Hurd v. Gushing, 7 Pick. (Mass.) 169, where a tenant for life conveyed " all his right, title and interest" in the land with a covenant that he was seised in fee, it was held that only the life-estate passed, for the covenant could not enlarge the estate (Seymor's case, 10 Coke, 97, and see supra, p. 415). So where, in Corbin v. Healy, 20 Pick. (Mass.) 514, one granted land to his daughter " and the heirs of her body, to have and hold the same to her and her heirs forever," and covenanted to warrant and defend the same to her and her heirs, it was held that neither the habendum nor the warranty could make the estate other than an estate tail. ' Allen V. Holton, 20 Pick. (Mass.) 468. "The objection would be well maintained," said Wilde, J., who delivered the opinion, " if a literal construction of the covenant of warranty could be allowed without reference to the other parts of the deed. But every deed is to be construed according to the intention of the parties, as manifested by the entire instrument, although it may not com- port with the language of a particular part of it. Thus a recital or a preamble in a deed may qualify the generality of the words of a covenant or other parts of a deed; 4 Cruise's Dig. tit. 32, Deed, c. 23, § 8. The case of Moore v. Magrath, Cowp. 9, is a strong case to show to what extent a court may go in qualifying and even in rejecting a particular clause in a deed, in order to effec- tuate the intention of the parties. In that case, the lands intended to be granted by a deed of settlement were particularly named in the 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 and heredita- ments in Ireland.' And the court held that nothing passed by this sweeping FOB TITLE MAT BE LIMITED OR QUALIFIED. 527 my right, title and interest in and to that parcel of real estate sit- uate in Green Street, and is bounded," &c., followed by unlimited covenants for seisin, good right to convey, against incumbrances and of warranty, it was held that these covenants were limited merely to the right and title of the grantor, whatever that might be ; 1 and the law has been so held in many similar cases.^ clause ; the court being of opinion, from the words of the preamble, that the donor did not intend to include his paternal estate (which was situate in a differ- ent county from those in which the lands intended to be conveyed were situate), and that it was more than probable that the drawer by mistake omitted some words in the sweeping clause. Whatever may be thought of the intention of the parties in that case, we think the intention as to the extent of the grant in the present case is sufficiently plain. The grantor conveys his own title only, and all the subsequent covenants have reference to the grant, and are qualified and limited by it. That this was the intention of the parties cannot, we think, be reasonably doubted, and the words of the covenants are to be so construed as to effectuate that intention." So where the obvious meaning of the covenants renders it necessary, courts will construe one word to mean another, as is constantly done in wills, as where, in Sanders v. Betts, 7 Wend. (N. Y.) 287, the party of the first part in a deed covenanted to warrant and defend the premises from all persons claiming " by, from or under him, the said party of the second part," the plaintiff urged that all these words must be rejected as being repugnant to the preceding matter. But the court held that second had been inadvertently used instead of Jirst, and construed the covenant as being a limited one only. ' Sweet V. Brown, 12 Met. (Mass.) 176. " Ballard v. Child, 46 Me. 153 ; Bates u. Foster, 59 id. 158 ; McNear v. Mc- Comber, 18 Iowa, 14, citing the text. In that case, some of the covenants were written and some in printed form, and it held that the former controlled the latter, the code in Iowa providing that "when an instrument consists partly of written and partly of printed form, the former controls the latter when the two are incon- sistent ; " Rev. Code of 1860, c. 159, § 3993. In Sweet v. Brown the court said : " The warranty is of the premises which were granted and conveyed by the deed. But that was ' all my right, title and interest in and to that parcel of real estate situate,' &o. It was not a grant of certain land, in general terms, but of his title and interest in such land, and this particularly and fully expressed. The warranty must be taken in a limited sense. It must be restricted to his title and interest. The covenant here attaches to the estate and interest conveyed, and is not a gen- eral covenant of warranty of the whole parcel, particularly described by metes and bounds. Such construction will reconcile all parts of the deed and give effect to each," and the cases of Blanchard v. Brooks and Allen v. Holton, supra, were then cited and approved. Wynn v. Harman, 6 Gratt. (Va.) 157, was a very clear case. The con- veyance was of "all claims in and to the Curran Place, which was conveyed to Curran by Daniel Harman, senior," and the covenant was "the said Har- man and wife, for themselves and their heirs, the said right as it was invested 528 IMPLIED COVENANTS, AND HOW COVENANTS It may, however, be observed of these cases, that inasmuch as all conveyances taking effect under the statute of Uses transfer no more than the estate of the party, such a course of decision, if too strictly carried out, would restrain all general covenants for title, in such conveyances, to the acts of the vendor, which would of course utterly change the nature of such covenants. It is conceived therefore that this class of cases should be limited in their appli- cation to those where the intention to convey and receive but a limited plainly appears on the face of the instrument.^ And in a case in Massachusetts, where the conveyance was of " the follow- ing described water-lots," and, appended to the description by metes and bounds, the words, " meaning and intending by this deed to convey all my right, title and interest in and to lots num- bered three and six, and my undivided portion of the aforementioned flats," it was held that the general covenants for title which the deed contained were not restricted merely to the interest of the grantor.^ So in a late case in Vermont, where the grant was of 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 Wynian and heirs is to have no recourse, he knowing the whole circumstance." The difference, in an executory contract, between an agreement to convey a good title, and such a title as the party has, is well expressed by Strong, J., in Herrod v. Blackburn, 6 P. F. Smith (Pa.), 105. ' See Jackson v. Hoffman, 9 Cow. (N. Y.) 271. That case decided that ■where a deed contained a recital of the premises being incumbered by a mort- gage, followed by unlimited covenants, the mortgage was excepted from their operation. Such a doctrine seems very questionable (see Keith v. Day, 15 Vt. 660, and supra, p. 116 etseq.}, as it is always in the power of the vendor to except the mortgage from the operation of the covenants, as in Potter v. Taylor, 6 Vt. 676, where, after a covenant against incumbrances, there was inserted ' ' except the amount of a mortgage held by B. K., on which is due about eighteen tons of hay," and it was held that the covenant was broken only as to any excess there might be due over the eighteen tons. ^ Hubbard v. Apthorp, 3 Cash. (Mass.) 419. " The effect of covenants of warranty," said Dewey, J., who delivered the opinion, "attached to a con- veyance merely of the right, title and interest of the grantor, was somewhat considered in the cases of Blanchard v. Brooks, 12 Pick. 47, and Allen v. Holton, 20 id. 468 ; and the cases cited for the plaintiffs do, to some extent, sanction the views contended for by their counsel as to the limitation of the covenants in such cases. It seems to us, however, that it is unnecessary to consider particularly the effect of a covenant of warranty in a deed, where the only thing described in the premises as the subject of the grant is ' the right, title and interest ' of the grantor, as was the case of Allen v. Holton, above cited. The construction of a FOE TITLE MAT BE LIMITED OR QUALIFIED. 529 " the following described land in Colchester, all the land which I own by virtue of a deed, being all my right and title to the land comprising fifty acres off of the east of lot No. 75 in said town," it was held that the covenants were not qualified by the grantor's interest.^ So in a recent case in England,^ a testator having a deed is to be such, if possible, as to give effect to the intention of the parties, and therefore where it is a mere conveyance ' of all the title of the grantor,' it may be held that the covenants have no application beyond the words of the grant itself. But the present deed is one purporting to convey by particular and definite boundaries various tracts of land described in the premises of the deed, adding, however, to the description of the lands the words ' meaning and intend- ing by this deed to convey all my right, title and interest in and to lots numbered three and six, &c., and my undivided portion of the aforementioned flats ; ' — ' the same being subject to each and all the conditions, covenants and restrictions contained in the deed of Jabez Hatch, J. P. Davis, and the division deed.' As it seems to us, this second description was added rather for fulness and certainty than with the view of any limitations as to the tracts of land conveyed ; the first description setting forth lots numbered three and six, and the parcel of flats by their boundaries ; and the second being adapted to embrace all the interest of the grantor in lots numbered three and six, and the flats, however bounded. There might have been also the further purpose of introducing the limitation upon the conveyance of the conditions and restrictions contained in the deeds therein referred to, which restrictions or conditions do not, however, affect the question, whether the covenants are applicable solely to the actual title of the grantor. It is true, as was suggested by the counsel for the plaintiflF, 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 con- sistent with the general words, and not apparently restricted, but added rather for greater caution and to guard against any misrecital, we give effect to the gen- eral description rather than to the explanatory words, if there be any discrepancy, and the general description be perfect in itself and easily susceptible of a prac- tical application." In Whiting v. Dewey, 16 Pick. (Mass.) 434, it seems to have been thought that if the words " being all the same lands which the said Benedict Dewey, de- ceased, lately owned," had been the only words of description used, they would have limited the general covenants which followed ; but as the premises were in the grant particularly described by metes and bounds, the description was held not to limit the covenants. ' Mills V. Catlin, 22 Vt. 98. " Upon the principle that the construction is to be upon the entire deed, and that one part is to help expound another, and that every word if possible is to have effect and none be rejected, and all the parts thereof agree and stand together, we think it must be held to have been the intention of the parties to grant the land, and that the habendum in the deed is to ' Calvert v. Sebright, 16 Beav. 166, and see this case cited as to another point, supra, p. 625, n 2. 34 530 IMPLIED COVENANTS, AND HOW COVENANTS power to lease for three lives, demised " as far as in his power lay or he lawfully might or could " part of the premises, covenanting for quiet enjoyment during the same, without interruption by him- self or his heirs or any one claiming under him. There had, how- ever, been a prior appointment by himself and his father, and, after the testator's death, the lessee was evicted by the eldest son of the testator, and the Master to whom it was referred to determine the liability of his estate under the covenant reported that it was not liable, but this was set aside by the Master of the EoUs, who said, " it is urged that the lessee is not entitled to any compensation for her eviction, and that for two reasons : first, because it is clear on the face of the deed itself that the testator did not mean to assert that he was entitled to grant such an interest as he purported to give. This made me inquire whether there was any evidence of the lessee's having notice that the lessor had no title to grant this lease. If she had, a different consideration would arise ; ^ and it hold tlie land, and the covenants are, as they import to be, unlimited, and relate to the land and insure title to it. But if, after all, we consider the intention of the parties ambiguous, the rule would be interposed that the construction in such case is to be most strongly against the grantor and in favor of the grantee, and this to prevent an evasion by the grantor by his use of obscure and equivocal words." Steiner v. Baughman, 2 Jones (Pa.), 106, and Peck v. Hensley, 20 Tex. 677, are to the same effect. In Cooke v. Fownds, 1 Lev. 40; s. c. 1 Keb. 95, the vendor covenanted that he was seised of a good estate in fee, according to the indenture made to him by W., of whom he had purchased, and pleaded in an action, in which it was assigned for breach that he was not seised of a good estate in fee, that he was seised of as good an estate as W. conveyed to him, this was held bad on demurrer, " for the covenant is absolute, and reference to the conveyance by W. serves only to denote the limitation and quality of the estate, and not the defeasibleness or indefeasibleness of the title." This case was sought to be distinguished in Delmer v. McCabe, 14 Irish Law R. N. S. 377 ; supra, ^. 525, where the court said : "It does not occur to us that this case has any application to the case before us, in which the statement or recital is not that the party is seised in fee, but that he is seised and possessed ; where the con- tract is not for the purchase of an estate in fee or freehold, but of the estate and interest of the defendant under the deed of 1841, and where the covenant is not that he has power to convey a fee, but to make this conveyance of his estate and interest under the deed of 1841, followed by a covenant for quiet enjoyment against acts by the defendant himself." The distinction between the cases is rather finely drawn. ' It is, however, well settled that mere notice of an incumbrance will not ex- cept it from the eifect of the covenants for title so as to constitute a defence, for if the parties mean so to except it, the intention should be expressed by apt words in the deed ; see supra, p. 116. But to this rule, which is a universal FOR TITLE MAT BE LIMITED OR QUALIFIED. 531 might then be properly said that she could only take such title as slie knew could be granted to her. On the one hand, we know that, in practice, a lessee is never allowed to look into the lessor's title ; and, on the other hand, a person granting a term must be taken to know his own title, and to assert that he has power to grant that which he purports to grant. The words, ' as far as he lawfully can,' are implied without their being used. A man can only be taken to grant that which he lawfully can ; and by such words as these he cannot mean to assert that he is not entitled lawfully to grant such a lease. To induce me to construe these words to be an intimation to the lessee that the lessor is not en- titled to do what he professes to do, I should require either some ex- press authority, or some expression of doubt, upon the face of the lease, that there was a defect as to the title. In the absence of any such authority or expression, I am of opinion that the defect was not disclosed by these words ; " and in a recent case in Illinois,^ the cor- rectness of the conclusion arrived at by some of the cases cited ^ was doubted, though the case itself was decided upon another ground. rule as to purchases, there are exceptions arising in cases of leases ; see supra, p. 251. ■ Lull V. Stone, 87 111. 228. ' Allen V. Holton, Sweet v. Brown, &c., supra, p. 526. 532 THE PARTIES BOUND AND BENEFITED CHAPTER XIII. f THE PARTIES BOUND AND BENEFITED BY COVENANTS FOR TITLE. It is proposed here to consider, first, who are bound by cove- nants for title ; that is to say, the liabilities of the covenantor, the heir, the devisee and the executor or administrator ; and, secondly, who may take advantage of them, or the rights of the covenantee, the heir, the devisee, the executor or administrator and the assignee. 1. Of t'he]Covenantor. — The liability of a covenantor obviously depends so much on the nature of the covenant and the circum- stance of its breach, that the subject has to a great extent received consideration in preceding chapters.^ ' The liability created by covenants for title is often a material cii-oumstance in determining the rights of parties in the marshalling of assets. It is a general and familiar principle of equity that where a creditor has a right to elect between two funds, out of either of which he can satisfy his claim, he shall not be permitted so to exercise that right as to disappoint another cred- itor who has recourse to but one of them. In England this principle was for- merly perhaps most frequently called into operation as between creditors of the real and personal estate of a decedent. But as on this side of the Atlantic lands are in most of the States, as they are now in England, made assets for the pay- ment of all debts whether due by specialty or simple contract, this class of cases is comparatively a small one, and the doctrine is applied in favor of sureties, purchasers, devisees and legatees, &c. It is only as respects purchasers that the subject needs consideration here. Where a vendor sells land which is covered by an incumbrance for whose pay- ment he is personally liable, and the contract between himself and the purchaser has been that the latter is not to take the land cum onere, it is sufBciently obvious that the purchaser is not only entitled to an indemnity upon payment of the in- cumbrance by him but also to a substitution to all the rights of the holder of the incumbrance ; and if the incumbrance bind other land of the vendor, the pur- chaser 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 incum- brance. Thus in Eddy o. Traver, 6 Paige (N. Y.), 621, where one of four BY COVENANTS FOR TITLE. 633 Whenever the action of covenant is founded on privity of con- tract, it is of course transitory, and tlie covenantor is liable to suit heirs sold to the complainant his undivided fourth part of hia ancestor's estate with a covenant of warranty, which part was afterwards sold by the surrogate for payment of the debts of the decedent, it was held that the complainant had an equitable lien upon the unsold portion of the estate, and had a right to come in upon the fund raised by the sale of that portion under proceedings in parti- tion. As this right on the part of the purchaser depends, however, wholly on the nature of the contract between his vendor and himself, the presence of cove- nants for title in the conveyance to him is deemed a material circumstance as evidence of this. Thus in Averall v. Wade, Lloyd & Goold (temp. Sugd.), 269, Sir E. Sugden, then Chancellor of Ireland, said, " A man seised of estates A and B, both subject to a judgment debt, settles A for valuable consideration without noticing the judgment, the judgment creditor would be compelled to go against estate B, and the persons claiming under the settlement would be entitled to have the settled estate exonerated, at the expense of the unsettled estate ; the judgment binds both, and where there is a settlement of part of an estate as if free from incumbrance, equity will throw the whole on the unsettled part which still belongs to the original owner. Here there is a covenant that the estate is free from incumbrances ; assuming that there was no such covenant but a mere declaration that the estate was free from incumbrances, there can be no doubt that that declaration would throw the incumbrance on the unsettled estates." In this case it will be observed that the conveyance was for a valuable consideration and contained a covenant against incumbrances ; where, however, the convey- ance is voluntary and contains no other covenant than that for further assurance, the grantee will not be exonerated from the payment of a paramount charge ; Ker V. Ker, Irish Rep. 4 Eq. 14 ; and see infra, Ch. XV. In Guion v. Knapp, 6 Paige, (N. Y.) 35, it was said, " If a mortgage is a lien upon two hundred acres of land, and the mortgagor conveys one hundred acres thereof to A, the one hundred acres which remains in the hands of the mortgagor is to be first charged with the payment of the debt, and, if that is not sufficient, the other one hundred acres is next to be resorted to. But if A has subsequently conveyed one-half of his one hundred acres to B with warranty, the fifty acres remaining in the hands of A is in equity first chargeable with the payment of the balance of the debt, which cannot be raised by a sale of the one hundred acres that still belong to the mortgagor or his subsequent grantee, before resort can be had to the fifty acres which A has con- veyed with warranty. And if A conveys his remaining fifty acres to C, either with or without warranty, that portion of the premises is still liable for the balance of the mortgage debt, and must first be sold before a resort can be had to the fifty acres previously conveyed with warranty to B ; " and in Gumming v. Gumming, 3 Kelly (Ga.), 482, these remarks were quoted with approval. But the presence of the covenant of warranty is, as has been before said, and as appears from the case of Averall v. Wade, material only by way of evidence of the original con- tract; Cooper V. Bigly, 13 Mich. 476; and the doctrine is equally susceptible of application in any case where, from other evidence than that afforded by the covenants, it can be seen that the purchaser was to take the land free from the particular incumbrance; Cowden's Estate, 1 Barr (Pa.), 266; notes to Aldrich 534 THE PARTIES BOUND AND BENEFITED wherever process may be served upon him. But whenever founded on privity of estate, as for example where the plaintiff, as assignee of the land, sues upon a covenant which runs with it, the action is of course local, and cannot be sustained unless the land be within the jurisdiction of the court in which the action is brought. This has long been settled,^ and in a rather late case in Massachusetts, where the plaintiff sued on a covenant of warranty upon the sale of land in Illinois to one under whom the plaintiff claimed through mesne conveyances, the plaintiff was nonsuited on the ground of want of jurisdiction, although both he and the defendant were residents of Massachusetts, and the former was, it was urged, without remedy unless the court should sustain the action.^ As a general rule, the liability of a covenantor will not of coui'se be discharged by his bankruptcy, with respect to such covenants as were not broken at that time, inasmuch as, upon general principles, a creditor who has no present debt or claim to prove in bankruptcy should not be deprived of future recovery against his debtor. But whether damages arising from the breach of the covenants for title are so provable, depends naturally to a great extent upon the words of the statute of bankruptcy. In England, before the statute of 1861, bankruptcy was no defence to an action for breach of the covenants for title happening before the bankruptcy, the demand not being considered a liquidated debt,^ but under that statute,* damages may be assessed upon any demand, arising upon contract, in the nature of unliquidated V. Cooper, 2 Leading Cases in Equity, where the doctrine of marshalling of assets is carefully considered. In Massachusetts, however, it would seem to be considered that the doctrine depends upon the presence of covenants of warranty ; Chase V. Woodbury, 6 Cush. 148 ; Bradley v. George, 2 Allen, 392 ; George v. Wood, 11 id. 41 ; 3 Washb. on Keal Prop. (3d ed.) 192. 1 1 Chitty's Pleading, 270; Mostyn v. Fabrigas, Cowp. 161 ; 1 Smith's Lead. Cas. ; Lienow v. Ellis, 6 Mass. 331 ; White v. Sanborn, 6 N. H. 220 ; Birney v. Haim, 2 Littell (Ky.), 262. ' Clark V. Scudder, 6 Gray (Mass.), 122. It is obvious, moreover, that a judgment once recovered upon one of the covenants for title may be pleaded in bar of any subsequent suit brought upon the same cause of action ; Osborne v. Atkins, 6 Gray (Mass.), 423 ; and see supra, p. 290, et seq. ^ Hammond v. Toulmin, 7 Term, 612 (where the defendant sold a ship and covenanted that he had full power to sell the same free of all incumbrances) • and see the notes to Mills v. Auriol, 1 Smith's Lead. Cas. ' 24 & 25 Vict. c. 184. Br COVENANTS FOB TITLE. 635 damages. It has, however, been held that the act only applies to cases where the cause of action is complete before the adjudication.^ The United States statute of 1841, as also that of 1867, allowed " uncertain and contingent demands " to be proved in bankruptcy, and the authorities have not been uniform as to the effect of bank- ruptcy upon demands arising under covenants for title. On the one hand, it was held in New York that the object of the act was to bar all existing claims, even when the liability imposed is uncertain and contingent and their admission to proof must necessarily pro- tract the settlement of the estate indefinitely, and hence that bank- ruptcy might be pleaded in bar of an action on a covenant of quiet enjoyment although no breach occurred till after the petition in bankruptcy had been filed ,^ and the same view has been taken in other cases, which have even gone farther, and held the cove- nants discharged by bankruptcy even when the final breach did not occur till long after the discharge.^ On the other hand, it is considered that if the right to damages is dependent upon eviction, no " demand," in the proper sense of that word, can, before that event, arise, and hence that the remedy against the covenantor survives the discharge in bankruptcy, when the latter precedes the eviction,* and this would seem to be the juster view of the law.^ But where the right to damages depends upon ' Ex parte Mendel, 1 De Gex, Jones & Smith, 330. ^ Jemison v. Blowers, 6 Barb. (N. Y.) 686. The inconvenience arising from delay, and the provision of the 10th section of the act which required that all proceedings in bankruptcy should be brought to a close within two years, were pressed upon the court in this case. And yet notwithstanding some of the rea- soning in the opinion, it may be doubted whether the case was not rightly decided, as the eviction (which took from the demand its elements of uncertainty and contingency) happened eight months before the covenantor's discharge in bank- ruptcy, and could clearly have been proved before the commissioner. ^ Shelton V. Pease, 10 Mo. 473 (but see Magwire v. Kiggin, 44 id. 614, infra, p. 636) ; Bates v. West, 19 111. 135 (though reluctantly, and yielding only to authority, the point being considered to have been substantially ruled in Mace v. Wells, 7 How. (U. S.) 272, overruling s. c. in 17 Vt. 603) ; Bailey ». Moore, 21 111. 169. " Bush V. Cooper, 26 Miss. 699 ; affirmed, 18 How. (U. S.) 82 ; Burrus v. Wilkinson, 31 Miss. 637 ; and see Bennett v. Bartlett, 6 Cush. (Mass.) 226. ' As, of course, upon an action on a covenant of quiet enjoyment or of war- ranty, if there has been no eviction, actual or constructive, there is no breach, no right to even nominal damages, — no claim whatever has arisen upon the cov- enant. In Shelton u. Pease and Jemison u. Blowers, supra, the court referred to a passage by Coke, that a release of all demands releases " all mixed actions, a warranty which is a covenant real, and all other covenants, real and personal 636 THE PAETIES BOUND AND BENEFITED a covenant which may have, as it were, a technical and a substantial breach, more difficulty has been felt, and when the covenant is one in prcesenti, as for example a covenant against incumbrances, the " demand " has been held provable, even though no more than nominal damages (by reason of the absolute uncertainty whether loss will thereafter happen) can be awarded out of the bankrupt's estate, and his discharge may be pleaded in bar of the action brought after the real damage has been sustained.^ Whether the liability created by covenants for title be joint, or several, or joint and several, obviously depends upon the terms in which they are expressed. Where an obligation is created by two or more, the general presumption is that it is joint,^ and words of conditions before they are broken, or performed, or after," &c. ; Co. Litt. 291 &. But Coke wrote long before bankrupt laws, and there is the widest difference between a release of an unbroken covenant or condition, and an attempt to en- force a demand upon an unbroken covenant or condition. ' Reed v. Pierce, 36 Me. 460 ; Magwire ». Riggin, 44 Mo. 614. In both these cases, as in others, the distinction was noticed between a contingent de- mand and a contingency whether there ever would be a demand. In Magwire v. Riggin it was held that an inchoate right of dower (the wife being living) was not a contingent demand, and the claim was not barred by the bankruptcy, while in Reed v. Pierce, where the incumbrance was a mortgage which was foreclosed after the bankruptcy, and the covenants were against incumbrances and of war- ranty, it was held that the claim under the former covenant was barred, while that under the latter was not. And in Chamberlain v. Meeder, 16 N. H. 382, and Stewart v. Anderson, 10 Ala. 504, it was held that a mortgagor's discharge in bankruptcy did not aiFect the covenant of warranty contained in the mortgage so far as it operated to pass an after-acquired estate by estoppel ; see these cases supra, p. 408. = Touchstone, 375 ; Carleton b. Tyler, 16 Me. 392 ; Donohoe v. Emery, 9 Met. (Mass.) 67 ; Piatt on Covenants, 117. Thus in Comings v. Little, 24 Pick. (Mass.) 266, one of two tenants in common mortgaged his moiety thereof, and subsequently both joined in a conveyance of the whole estate to the plaintiff, with a covenant that it was free from all incumbrances, and the plaintiff having redeemed the mortgage it was held that he could maintain his action against both covenantors. " It is objected," said the court, "that the covenants of the de- fendants are to be taken distributively, and that the action should have been brought against the mortgagor alone. But this objection cannot be sustained. The distinction is this. Where a man covenants with two or more jointly, and the interest and cause of action of the covenantees is several, each of the cove- nantees may bring an action for his particular damage, notwithstanding the words of the covenant are joint. But where two persons covenant jointly with another, a joint action lies for the covenantee on a breach of the covenant by one of the covenantors only, because they are sureties for each other for the due perform- ance of the covenant; 1 Wms. Saund. 164, note." BY COVENANTS FOK TITLE. 537 severance are required in order to confine the liability of the cove- nantor to his own acts.^ Covenants implied by operation of law, as from the word demiserunt, are co-extensive with the interest granted, that is, joint if a joint estate, and several if a several interest.^ Questions have at times arisen as to the liability of a married woman under covenants for title entered into by her, jointly with her husband, in a conveyance of her estate. The general principle undoubtedly is, that a woman shall not be bound to answer in damages for any contracts made by her during coverture. But there was, it would appear, a distinction observed as to her cove- nants for title in a fine, it having been held in an early case that if a husband and wife grant land belonging to the wife, by fine, with a covenant of warranty, an action will lie against her after the husband's death in case of the grantee's eviction.^ This decision may perhaps be accounted for by the high and solemn nature of a fine, being a proceeding of record, in the face of ' Quoted and approved in the recent case of Fields v. Squires, 1 Deady (C. C. U. S.), 366, 373. Thus in Evans v. Sanders, 10 B. Mon. (Ky.) 291, where four heirs, "in consideration of $60, that is, $15 per share," conveyed certain land with a covenant " that each for his separate and undivided share warrants and will each separately for his own share defend," it was held proper to sue the four separately. ^ Coleman v. Sherwin, 1 Show. 79 ; s. c. 1 Salk. 137. Piatt, in his treatise on Covenants, p. 117, remarks, "very few questions have been agitated whether covenants on the part of the covenantors have been joint, several, or joint and several ; the language has generally been sufficient to indicate the intention of the parties and the nature of the covenant in this respect." The question as to the rights of joint covenantees is, however, considered infra. ^ Wotton V. Hele, 2 Saund. 180 ; 1 Mod. 291. Although the case was stated to be one of the first impression, the judges ' ' all thought that the action will lay against the defendant on her warranty in the fine, although she was covert baron and they did not make any scruple of it." In Greenwood v. Tiber, Cro. Jac. 563, " all the reservations, covenants and warranties " comprised in a lease made by husband and 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 by them ; " 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, and this point was, in the argument in Wotton v. Hele, " agreed by the counsel on both sides," so that this case can hardly be said to be an authority for the broad assertion that a wife will be bound by her covenants for title. 538 THE PARTIES BOUND AND BENEFITED a court whose judges were supposed to watch over the rights of the wife.i But on this side of the Atlantic, where the wife's interest was always passed by a less solemn form of assurance,^ and even in England, since a modern statute has abolished fines, and substi- tuted the acknowledgment upon private examination which is usual in this country,^ the opinion seems to prevail that a married woman cannot be bound to answer in damages by reason of the covenants for title entered into by her jointly with her husband, although her estate may have passed by a proper acknowledgment.^ ' The modern acknowledgments contain nearly all the requirements to a valid fiae ; the wife must be of full age, examined " solely and secretly " as to whether she levied the fine " without any menace or threat," and " every thing distinctly contained in the writ so as she perfectly understand what she doth," and "if the woman doth not speak any language that the jndge doth under- stand," there should be an interpreter under oath ; 2 Inst. 516. » 3 & 4 Wm. IV. c. 74. ' "The doctrine," says Chancellor Kent (2 Com. 167), "that a wife can be held bound to answer in damages after her husband's death on her covenant of warranty entered into during ^overture, is not considered by the courts in this country to be law, and it is certainly contrary to the settled principle of the com- mon law that the wife was incapable of binding herself by contract ; " Sumner V. Wentworth, 1 Tyler (Vt.), 43 ; Sawyer v. Little, 4 Vt. 414 ; Wadleigh v. Glines, 6 N. H. 17 ; Fowler v. Shearer, 7 Mass. 21 ; Colcord v. Swann, id. 291 ; Chambers v. Spencer, 5 Watts (Pa.), 406 ; Dean v. Shelly, 7 P. F. Smith (Pa.), 427 ; Whitbeck v. Cook, 15 Johns. (N. Y.) 646 ; Nash v. Spofiford, 10 Met. (Mass.) 192 ; Aldridge v. Burlison, 3 Blackf. (Ind.) 201 ; Falmouth v. Tibbatts, 16 B. Hon. (Ky.) 641 (quoting the text) ; Hobbs v. King, 2 Met. (id.) 141 ; Nunnally v. White, 3 id. 693 ; Curd v. Dodds, 6 Bush (Ky.), 686 ; Porter v. Bradley, 7 R. I. 641; Fletcher v. Coleman, 2 Head (Tena.), 388; Strawn v. Strawn, 60 111. 37. " She may be influenced or persuaded," said the court in Fowler V. Shearer, " by her husband to execute the deed with him, knowing its effect as an alienation, but she may not know the nature or effect of the cove- nants contained in it ; and to hold her liable on the covenants cannot be neces- sary to the .conveyance nor be beneficial to her family, but may be greatly to her prejudice." The rule, therefore, has never extended to make her liable on the covenants in the deed, except perhaps so far as they may operate by way of estoppel, and even this latter effect has been frequently denied ; Wadleigh v. Glines, 6 N. H. 18 ; Lowell v. Daniels, 2 Gray (Mass.), 168 ; Jackson ».Vander- heyden, 17 Johns. (N. Y.) 167 ; Martin v. Dwelly, 6 Wend. (N. Y.) 9 ; Domi- nick V. Michael, 4 Sandf. S. C. (N. Y.) 374; Carpenter ». Schermerhorn, 2 Barb. Ch. (N. Y.) 314 ; Den v. Desmarest, 1 Zabr. (N. J.) 641 ; Schaffner v. Grutz- macher, 6 Clarke (Iowa), 137 ; Hempstead v. Easton, 33 Mo. 146 ; see supra, p. 401. In the early case in Virginia, however, of Nelson v. Harwood, 3 Call, 394, the specific performance of a wife's covenant for further assurance was decreed on the ground that as all objections arising from supposed want of freedom of BY COVENANTS FOR TITLE. 539 In Massachusetts, however, it is provided by statute that " any person capable in law of making a deed may convey to a married woman any estate in fee to be held by her to her sole and separate use, free from the interference and control of her husband, and whenever any estate is so conveyed to her, she shall be liable to be sued at law and in equity upon any contract made by her in respect to that estate," ^ and, under this statute, it has been held fliat where property has been so conveyed to her separate use, she will be liable for a breach of the covenants contained in a deed from her husband and herself to a purchaser,^ and the same decision has will on the part of the wife are removed by her private examination, her deed was as binding upon her as if she were a feme sole. But such seems not to have been generally considered to have been the eifect of the modern acknowledg- ments, and the eifect of this decision was soon after destroyed by a legislative enactment in that State to the efifect " that no covenant or warranty contained in any deed executed hereafter by any feme covert shall in any manner operate upon her or her heirs further than to convey elFectually from 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 deed ; " Act of Dec. 20, 1814 ; re-enacted in 1819, and in substance in 1849, c. 99, § 7 ; Code of Virginia, 514 ; and similar statu- tory provisions exist in the States of Illinois (Strawn v. Strawn, 50 111. 37) Indiana, Michigan and Missouri. In Delaware the statute of conveyances (Re- vised Laws of 1829) declared that " such deed shall not bind her to any war- ranty except a special warranty against herself and her heirs, and all persons claiming by or under her ; " and in the revision of 1852 these words have been re-enacted, with the addition, " and no covenant on her part of a more extensive or different eifect in such deed shall be valid against her." It may be proper that such covenants should enure by way of estoppel, and it is possible the Del- aware statute may have meant no more ; but by thus placing a restriction upon the covenants of a feme covert, the inference would seem to arise that the covenants were deemed of some validity, which seems to be denied in most of the States. ' Stat. 1845, c. 208, §§ 3-5. ' Basford v. Pearson, 7 Allen (Mass.), 604. This was an action brought against a married woman, to recover damages for the breach of the cove- nants for seisin and of good right to convey, contained in a deed by her husband and herself to the plaintiff. The premises had previously been conveyed to the sole and separate use of the defendant, and the breach assigned was that no such lands existed. It was held that the defendant was liable. " The de- fendant," said the court, " lawfully assumed the obligations resulting from the covenants in the deed of herself and husband which was given by them and accepted by the plaintiff. It makes no difference, and did not defeat or diminish her liability, that her husband joined with her in the deed and made himself jointly liable with her upon the covenant. They cannot contract with each 540 THE PARTIES BOUND AND BENEFITED more recently been made in Iowa, where, by statute,' " contracts made by a wife in relation to her separate property, or those pur- porting to bind herself only, do not bind the husband," and^ " a married woman may convey her interest in real estate in the same manner as other persons." ^ These cases proceed upon the ground that when a power to con- tract is given by statute, the burdens, as well as the benefits thereby incurred, are assumed by the contracting parties, and it has accordingly been held in a case at law in New York that a married woman is not liable, under the acts of 1848 and 1849,* for the breach of her covenants for title in a conveyance of her estate, as those statutes did not confer any greater authority upon married women than previously existed, and did not remove their legal incapacities.^ It is familiar that, in England, if a married woman have a sep- arate estate, a court of chancery will bind her to the extent of making that estate liable to her contracts,^ and it has been decided in New York that in equity the property of a married woman can be charged with the damages caused by a breach of the covenants for title contained in a conveyance of her other. But in any case in which each of them is competent to enter into an agreement and assume the responsibilities resulting from it, there is no reason why they should not bind themselves by a joint obligation to a third person." ' Rev. Stat. 1860, p. 426, c. 101, § 2505 ; Rev. Code, c. 84, § 1454. " Rev. Stat. 1861, p. 890, c. 95, § 2215 ; Rev. Code, c. 78, § 1207. ^ Richmond v. Tibbies, 26 Iowa, 474. " If the wife is not liable," said the court, " then the law presents the anomaly of giving or conferring the power to contract without danger of liability thereon for damages resulting from its breach, and this no court would allow. The wife was not liable at common law, because she had no power to contract. She can contract now, however, and therefore she is liable.'' * " The real and personal property, and the rents, issues and profits of 'any female now married, shall not be subject to the disposal of her husband, but shall be her sole and separate property as if she were a single female ; " Acts of 1848, c. 200, § 2 ; Rev. Stat. 1858, pt. 2, c. 8, § 76. " Any married female may take by inheritance or by gift and hold to her sole and separate use, and convey and devise real and personal property, and any interest or estate therein, and the rents, issues and profits thereof, in the same manner and with like effect as if she were unmarried, and the same shall not be subject to the disposal of her husband nor be liable for his debts;" Acts of 1849, c. 375, § 1; Rev. Stat. 1858, pt. 2, u. 8, § 77. ' Coakley ». Chamberlain, 38 How. Prao. R. 483. ° Hulme V. Tenant, 1 Lead. Cas. in Eq. 894, supra, p. 31. BY COVENANTS FOR TITLE. 541 separate estate,^ and the same view of the law is taken in Ala- bama.2 2. Of the Heir. — The liability (whether immediate or ulti- mate) of the heir by reason of his ancestor's covenants for title depends, in this country, to a great extent upon the statutory pro- visions adopted in the different States for making the real estate of a decedent liable for the payment of his debts, although as respects the source of this liability, there is no difference either in England or here between the covenants for title and any other specialty contracts. In order that an heir should be liable upon the obligations of the ancestor, there were two requisites necessary at common law. First, that he be expressly named ; ^ so that in an action against him as heir the averment was necessary that he was named in and bound by the obligation, and this, as has been seen, was the rule as to the ancient warranty.^ In the second place, it was necessary > Kolls V. De Leyer, 41 Barb. S. C. 208 ; s. c. 26 How. Prac. E. 468. ^ Gunter v. Williams, 40 Ala. (N. S.) 561. " A married woman is regarded in equity," said the court (p. 572), " so far as her separate estate created by contract is concerned, as a, feme sole, and she may bind her separate estate by any contract by which she could bind herself if sole and unmarried. The power of the wife to bind her separate estate by the covenants of a deed is evidently asserted in this general principle, and we know of no case or doctrine upon which such power could be excepted from the general rule." " Co. Litt. -209 a; infra. In Rufner v. M'Counel, 14 111. 169 (which was approved in the late case of Baker v. Hunt, 40 id. 264), the vendors covenanted that their heirs and executors would warrant and defend the premises, and it was held that no action of covenant would lie against the covenantors themselves. The covenant, it was said, exempted the grantors from personal liability, but bound their descendants in respect of the estate that might be cast upon them. It postponed the remedy for a failure of the title until the decease of the grantors or one of them, and until such an event transpired there was no party in esse who could be called on to avouch the title. It was an unusual covenant, but that could not help the plaintiff. The presumption was that the grantors refused to become personally responsible for the failure of the title, but were willing to charge their estates in the hands of their legal representatives, and that the grantee preferred to accept such a covenant rather than have none at all. It might be, however, that it was the real intention of the parties that the grantors should warrant and defend the title, and that a mistake was made in the preparation of the deed, but that could only be verified in a court of equity (supra, p. 118), which being done, the action might be brought against the grantors, and breaches assigned on the covenant. In Baker v. Hunt, supra, it was held that where the covenantor bound himself, it was not necessary, under the local statutes, that the heir should be named in order that he be bound. * Bro. Abr. " Garranties," pi. 89 ; supra, p. 461. 542 THE PARTIES BOUND AND BENEFITED that the heir should have assets by descent sufficient to meet the demand, and he was bound by the warranties, covenants or other specialties of his ancestor only to the extent of these assets.^ A specialty creditor acquired, however, additional means of recom- pense by the death of his debtor, for although, by the common law, during his lifetime no recourse whatever could be had to his lands by means of execution, and the statute of Westminster the Second ^ gjive but a right to have one-half of them extended or delivered under a writ of elegit, yet after the death of the debtor an action would lie against the heir upon the specialty debts, by means of which all the assets by descent were liable to be taken in execution.^ ' Buckley v. Nightingale, 1 Strange, 665 ; 2 Black. Com. 243 ; for the doctrine of lineal and collateral warranty, see supra, p. 4 et seq. In Hall v. Martin, 46 N. H. 337, it was held that although by the common law the heir was liable on the covenants of his ancestor just so far only as he had assets by descent, and that as real estate alone descended to him, his liability was limited to that, irre- epective of any personal estate which he might have received as next of kin, yet ■where by local statute the personal estate was made to descend to him substan- tially in the same way, it should be treated as assets in his hands equally with the real estate ; per Bellows, J., Perley, C. J., and Bartlett, J., dissenting. Under a statute of Indiana, abolishing " lineal and collateral warranties, with all their incidents,", it has been held that the warranty of a tenant by the curtesy does not bar the heirs of the mother, even though they received assets by descent from the covenantor (see supra, p. 382, n 2), but that the personal representatives of the latter were liable for the damages caused by a breach of his covenant ; Hartman v. Lee, 30 Ind. 281. It was obviously held in Hart v. Thompson, 3 B. Mon. (Ky.) 485, that heirs of their mother's estate could not be made to pay, out of it, damages caused by a breach of their father's covenants for title, and the law was held the same way in Urquhart v. Clarke, 2 Rand. (Va.) 549. See also Piatt on Covenants, 450, and supra, p. 376 et seq. In Dickinson v. Hooraes, 8 Gratt. (Va.) 410 (noticed as to another point, supra, p. 510, n 1) , the court admitted that assets which had descended to the heir in Kentucky could not be noticed in an action against that heir in Virginia, on a bond of his ancestor, but decided (on the authority of that familiar class of eases of which Penn v. Lord Baltimore, 1 Ves. 444, is the leading one) that a court of equity would, upon proof of such assets, in the exercise of his jurisdiction in personam, 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 Gratt. (Va.) 532, it was held that a judgment against heirs in another State, where there were no assets, did not merge the covenants, and that the plaintiff might sue the heirs in Virginia, where the assets were. ' 13 Edw. L c. 18. ' Sir Wm. Harbert's case, 3 Coke, 12 a ; Davy v. Pepys, Plowd. 441. BY COVENANTS FOR TITLE. 643 The result was that the bond creditor had, after his debtor's death, a greater security than the judgment creditor ; for the latter, by reason of his judgment, charged the heir only as tenant of the land. No personal action would lie against the heir on such judg- ment, and the only remedy of the creditor was by scire facias to have execution of the lands, which, as has been seen, iinder the statute of Westminster he could have but to a limited extent,^ as the death of the ancestor did not alter the nature of the execution any more than it did the nature of the debt,^ while on the bond debts the creditor could at his election, by a special judgment, have execution upon all the lands in the possession of the heir. A warrantia chartce or a voucher being essentially real actions, could of course be brought only against the heir, but upon cove- nants as upon other specialties, the creditor might sue either heir or executor at his option, or bring separate actions against them at the same time,^ so that an heir could not plead in an action brought against him that there was an executor who had assets.* Nor was there at common law any distinction between bond debts and covenants, either as to the liability of the heir to be sued upon them or the right of the covenantee to come in upon the assets as a specialty creditor ; ^ nor, consequently, between covenants for title and other specialties,^ nor was it material whether the cove- ' Harbert's case, supra ; Bowyer v. Rivitt, W. Jones, 87. = Stileman v. Ashdown, 2 Atk. 608. ' Bro. Abr. "Assets per Descent," pi. 33; Com. Dig. Pleader, 2, E. 8; Quarles v. Capell, Benl. 96 ; 8. o. 2 Dyer, 204 6. * Galtou V. Hancock, 2 Atk. 426 ; Davy v. Pepys, Plowd. 441 ; Quarles v. Capell, supra ; Davies ». Churchman, 3 Lev. 189. ^ Plumer v. Marchant, 3 Burr. 1384; Godolph. Orph. Leg. pt. 2, c. 28; Went. Ex. 146 ; Dyke v. Sweeting, Willes, 58.5 ; Benson v. Benson, 1 P. Wms. 131 ; Musson v. May, 3 Ves. & Beames, 197 ; Jenkins v. Bryant, 6 Simons, 603 ; Watson v. Parker, 6 Beav. 283 ; Frazer v. Tunis, 1 Binney (Pa.), 264. « Cruise, c. 20, § 66 ; Higgingbothara v. Cornwell, 8 Gratt. (Va.) 86 ; Gan- nard v. Eslava, 20 Ala. 732. In the case of Earl of Bath v. Earl of Bradford, 2 Ves. 687, one who had received a covenant for quiet enjoyment, and whose damages were liquidated by a recovery against the executor, was held by Lord Hardwicke to be a specialty creditor. In Giles v. Roe, 2 Dickens, 570, the same was applied to a covenant for seisin, and in Parker v. Harvey, 2 Eq. Ca. Ab. 460, and Fergus v. Gore, 1 Sch. & Lef. 107, to a covenant against incum- brances ; and in the very recent case of In re Dickson, Law R. 12 Eq. 164 (infra, Ch. XV.), to a covenant for further assurance. In Lovell v. Sherwin, 2 Eq. R. 329 (23 E. Law & Eq. 534), the deed contained all the covenants for title. 544 THE PARTIES BOUND AND BENEFITED nant was broken before or after the covenantor's death, provided the amount of the damages was liquidated.^ But although the heir was thus bound by his ancestor's bonds and covenants when named in them, and to the extent of the assets, yet if, before suit brought, he had aliened the lands which he had inherited, the creditor was without remedy.^ The " statute of fraudulent devises " ^ was intended to remedy this mischief, doubtless not only with respect to the ancestor's specialty debts, but perhaps also as to his covenants, as the fifth section of that statute, after reciting that many heirs-at-law, to avoid the payment of such just debts as in regard to the lands descending to them they had become 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 bona fide aliened before suit brought.* But however this section may have been intended to protect as well a covenantee as a specialty creditor, it seems to have failed of its object, for, first, the cases of Wilson v. Knubley ^ and Parley V. Briant,^ though based upon another section of this statute to be presently referred to, held that its provisions, which are very similar to that just cited, applied to debts and actions of debt, ' Cox V. King, 9 Beav. 533 ; Hervey v. Audland, 14 Sim. 531 ; Lomas v. Wright, 2 Mylne & Keen, 769 ; Eardley v. Owen, 10 Beav. 572 ; see infra, Ch. XV ; Davis v. Smith, 5 Ga. 285 ; Stulzfoos's Appeal, 3 Pa. 265. = Plunket V. Penson, 2 Atk. 290 ; Davy v. Pepys, Plowd. 439. = 3 & 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 heir. But that statute provided that if any cestui que trust should die, leaving a trust in fee-simple to descend to his heir, the trust should be taken to be assets by descent, and the heir liable, by reason of such assets, as fully and amply as he might have been if the estate in law had descended to him by possession in like manner as the trust descended. Piatt, in his work on Covenants, p. 451, remarks, "A right of action against the heir, in respect of such assets by descent, cannot, it is apprehended, be de- feated by his alienation of the estates prior to the commencement of, or pending legal proceedings ; the charge once attaching will, it is supposed, continue in operation against him and his personal representatives, for the benefit of the covenantee or his representatives, until compensation be made for any breach of the covenant committed during the lifetime, or even after the decease of the ancestor." ' 7 East, 128. « 3 Ad. & Ell. 839. BY COVENANTS FOR TITLE. 545 and could not receive so liberal a construction as to include covenants; secondly, it was quite usual to find in English con- veyancing a bond to secure the performance of covenants, on which, as is seen in many of the cases, actions of debt will lie,^ which practice has been supposed to have been introduced in order to bring the case within the letter of the statute ; and thirdly, in a recent statute,^ intended to amend and supply the defects in the statute of fraudulent devises, after the words " liable to pay the debts " is inserted " or perform the covenants," and the word " covenants " is introduced after " debt or debts " wherever it occurs.^ The peculiar difference which appears to exist between the Eng- lish and American law as to the liability of an heir on his ancestor's covenants for title, is that while in England the covenant is of course no lien upon his real estate during his life, so it does not become one after his death until action brought ; and in case no action is brought, or if, before such action, the heir bona fide alien the land, the purchaser will take it clear of liability, whetlier the covenant be broken before or after the covenantor's death.* If the ' It may be supposed that there are also reasons which, in this country, seem to point out the propriety of taking a bond for the performance of covenants ; on the ground that although a covenant itself, if unbroken at the death of the covenantor, would not be a lien upon his real estate, that a bond for the perform- ance of such a covenant might be a lien. Such an opinion, however, seems not tenable. In Godolph. Orph. Leg. pt. 2, c. 28, it is said : " But executors (under pretence or color of recognizances for the peace or good behavior, or the like, or under pretence of statutes for performing covenants touching the enjoying of lands not forfeited, nor any sums of money possibly ever thereupon becom- ing payable) are not to withhold payment of debts by specialty, and thereby defraud the creditors ; so that if the statute or recognizance be only for per- formance of covenants, and no covenant be broken, an obligation for the payment of present money shall be discharged before it," but the passage merely refers to the duty of the executor as to not withholding payment on such pretences. 2 1 Will. IV. c. 47, known as Sir E. Sugden's act. ' These statutes will be found in Ram on Assets, 213 ; in the notes to Jeffer- son V. Morton, 2 Saund. 7, and to Silk v. Prime, 2 Lead. Cas. in Eq. ' ■* The law is thus stated in the note to Silk v. Prime, 2 Lead. Cas. in Eq. : " Neither debts by specialty in which the heirs are bound, nor simple contract debts, even Since the 3 & 4 Will. IV. c. 104 (infra, p. 548), constitute a lien or charge upon the land, either in the hands of the debtor or of his heir or devisee. Notwithstanding the existence of such debts, the debtor himself may 36 546 THE PARTIES BOUND AND BENEFITED alienation be a fraudulent one, though the purchaser's title will still be secured to him, yet the heir will be liable out of his own estate to the value of the lands thus aliened ; and if the lands have not been aliened at all, but still remain in the heir's possession, he will be liable to the extent of their value, both by common law and by statute, and the covenantee may sue the heir or the execu- tor, at his election. But in the United States, it may be said that, as a general rule, lands are liable for the debts of a decedent, whether due by matter of record,^ by specialty or simple contract. In the two latter cases, the existence of the debt, unless it be reduced to judgment, creates no lien during the debtor's life. By his death, however, its quality is changed, and it becomes a lien upon his real estate, which de- scends to the heir or passes to the devisee subject to the payment of the debts of the ancestor according to the laws of the State in which it lies,^ and the rights of the creditor can, in most of the States, be enforced against the lands in the hands of a bona fide purchaser,^ within certain statutory limitations as to time. alienate tlie land. By taking proper proceedings, the creditors, both by specialty and proper contract, may obtain payment out of the descended or devised real estate in the hands of the heir or devisee ; but if such proceedings are not taken, the heir or devisee may alienate, and in the hands of the alienee, whether upon a common purchase or on a settlement, even with notice that there are debts unpaid, the land is not liable, though the heir or devisee remains personally liable, to the extent of the value of the land alienated ; Richardson v. Horton, 7 Beav. 112, 123; i Mylne & Cr. 268, 269; Sugden on Vendors, 834, 835; Spackman v. Timbell, 8 Sim. 259, 260 ; but see Pimm v. Insall, 7 Hare, 193, where it was held that creditors would not be defeated by the marriage articles of an infant heir-at-law." Pimm v. Insall 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 descended to her heir discharged from the articles, and subject to their original liability to pay the debts of the ancestor ; s. c. on appeal, 1 Mac. & Gord. 449 ; and see Peachy on Marriage Settlements, 29. ' The words "matter of record " here include not only such things which appear on the records of a court, such as judgments, recognizances and the like, but those which are recorded or registered under local statutes, such as mort- gages, &c. I " Watkins v. Holman, 16 Peters (U. S.), 63 ; 4 Kent's Com. 424 ; 2 HiDiard's Abr. 539. ' Gore V. Brazier, 3 Mass. 623 ; Graff v. Smith, 1 Dall. (Pa.) 481 ; Morris V. Smith, 1 Yeates (Pa.), 244; Ricard v. Williams, 7 Wheat. (U. S.) 59 ; Gris- wold V. Bigelow, 6 Conn. 268. BY COVENANTS FOB TITLE. 547 But while this is the general principle, yet in its application it is of course modified by the various local laws of the States. By the common law, as we have seen, a covenantee might sue either the executor or the heir at his election, but this has been altered by statute in many States, and in them the liability of an heir on the covenants of his ancestor is a contingent one, depend- ing upon the inability of the covenantee to procure satisfaction out of the personal estate.-' • Webber v. Webber, 6 Greenl. (Me.) 136 ; Hutchinson v. Stiles, 3 N. H. 404 ; and see the later case of Tieknor v. Harris, 14 id. 272, for a review of the common law and the English and New Hampshire legislation, and the very recent case of Hall jj. Martin, 46 id. 337 (supra, p. 543, n. 1) ; Roe v. Swezey, 10 Barb. S. C. (N. Y.) 247 ; Stuart v. Kissam, 11 id. 271 (see Haynes v. Colvin, 19 Ohio, 396) ; Boyd v. Armstrong, 1 Yerg. (Tenn.) 40 ; Hartman v. Lee, 30 Ind. 283 ; and in Royce v. Burrell, 12 Mass. 399, -where the heir was sued on the ancestor's covenant for title, the plaintiff was nonsuited on the ground that appli- cation had not been first made to the personal estate through the administrator. The remark of Gibson, C. J., in Fritz v. Evans, 13 Serg. & Rawle, 14, that " in Pennsylvania, lands being in all cases assets for the payment of debts, only the executor can be sued," -would seem to apply to all other States -where lands are thus made assets in the hands of the executor, and in them the immediate lia- bility of the heir by an action of covenant against himself would seem to be taken away. As to his ultimate liability, the statutory provisions are, in different parts of the country, widely different. In many States the land can be summa- rily taken in execution in the hands of the heir or devisee, upon a judgment thus obtained against the personal representative. This was formerly the law in Pennsylvania (Payne v. Craft, 7 Watts & Serg. 465 ; Benner v. Phillips, 9 id. 13; Keenan u. Gibson, 9 Barr, 250), but has since been altered in that State, and a scire facias quare executio non is now directed to the heirs and devisees, ■with notice to the terre-tenants, -who, notwithstanding the judgment against the personal representative, will, in some oases, be let in to contest the claim on its original grounds ; Murphy's Appeal, 8 Watts & Serg. 165 ; Atherton v. Ather- ton, 2 Barr, 113; Butler v. Slam, 14 Wright (Pa.), 456. In the recent case of Sturgeon v. Schaumburg [Chambers v. Wright], 40 Mo. 482, certain tenants in common having made partition, covenanted with each other for themselves, their heirs and personal representatives, that in the event of any suits being brought against either of them respecting the title, the expenses should be equally borne between them. After the death of all of them, such suits were brought against the estate of one of them, -whose administrator then sued the heirs and devisees of one of the others for contribution, but it was held that this was " purely a per- sonal and collateral covenant, and does not belong to the class of covenants which run -with the land and concern the tenure and enjoyment of the property conveyed," and a demurrer to the petition was sustained. The case may have been correctly decided on one of the grounds taken, viz., that the suit could not be brought by the administrator, who had nothing to do with the real estate. Otherwise it would 548 THE PARTIES BOUND AND BENEFITED It is not however proposed to discuss the interesting subject of the liability of real estate for the debts of a decedent. It is one almost exclusively local in its application, and it may be sufficient to have briefly referred to the common law, and pointed out the sources whence fuller information may be derived with respect to its alteration.! certainly seem that the purpose for which the covenant had been entered into was . defeated. In Coakley v. Chamberlain, 38 How. Pract. R. (N. Y.) 483, a tenant for life, under her husband's will, with remainder to her children, married again and leased for a term of years, covenanting for quiet enjoyment, and died before the expiration of the term, when the tenant, being evicted by the children under proceedings in partition, brought covenant against them and the executor of their mother the covenantor. As against the former it was held that the plaintiff could not recover, although they had received the rent of the premises from their mother's death to the partition, as it was said that this receipt was no ratification of the covenant and that the rent was assets, not of their mother's, but of their father's estate, and as against her executor the plaintiff could not recover because the covenant was that of a married woman. ^ It may however be observed, that in tracing the course of legislation in the different States, they will be found greatly in advance of English legislation on the subject. The old feudal doctrines, which to prevent the alienation of real estate cumbered it with restraints, gave place, when a new state of society de- manded that the right of alienation should be less fettered, 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, for it was not until the year 1833 that by the statute 3 & 4 Will. IV. c. 104, freehold estates were made assets for the payment of simple contract debts, and all will remember the anxious and untir- ing efforts of Sir S. Romilly to bring about such provisions sixteen years before that time, and the clamor which was raised in opposition to it, to the effect that " the heir's right to the real property of his ancestor ought not to be disappointed by the claims of creditors," which was said by so good a lawyer as Sir William Grant. See the remarks of Sir S. Romilly in his Autobiography, vol. ii. 389, and also Campbell's Lives of the Chancellors, vol. vii. p. 266. On the other hand, from the earliest settlement of some of the American colonies, the doctrine of the liability of a decedent's lands to the 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 his debts into liens, and a purchaser or a devisee stood in those States, as in Pennsylvania, in no better position than the vendor or the testator ; Morris v. Smith, 1 Yeates, 244. In a few only of the colonies is this believed to have been otherwise. It has been assumed by authority entitled to respect that real estate is, in general, and has been from the earliest settlement of the colonies, liable for the debts of the ancestor in the hands of his devisees, his heirs and bona fide purchasers from them ; 4 Kent's Com. 420 ; 2 Hilliard's BY COVENANTS FOB TITLE. 549 3. Of the Devisee. — Much of what has been said as to the lia- bility of the heir will equally apply to that of the devisee. At com- Abr. 659; Watkins v. Holman, 16 Peters (U. S.), 63; Bergin ». McFarland, 6 Post. (N. H.) 636 ; but in fact the statute 6 Geo. II. c. 7, expressly declared that lands, &c., in all the American colonies, should be assets for the payment of debts. In Pennsylvania, there were many statutes to this effect prior to the year 1705, to which a reference may be found in the note to 1 Smith's Laws, 9, and the Appendix to Miller's edition of Acts of Assembly, published in 1762, and the dissenting opinion of Kennedy, J., in Bellas v. McCarthy, 10 Watts, 31. 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, otherwise such creditor should be forever barred ; and the opinion had been more than once expressed in interpreting this statute, that its words, being without any saving or exception whatever in favor of any incapacity, were so express as even to exclude claims on which the cause of action did not arise until after that time had expired; M'Lellan ». Hill, Conference Rep. 479 ; Jones 11. Brodie, 3 Murph. 594 ; Rayner v. Watford, 2 Dev. 339. But in Godley v. Taylor, 3 id. 178, the question presented was whether a covenantee, evicted after the expiration of seven years from the death of the covenantor, was deprived of his claim against his estate, and it was held that he was not ; that the legislature could not have meant to exclude a claim that might arise in futuro, and which could not be enforced until it did arise or accrue. In connection with this subject the case of Booth v. Starr, 5 Day (Conn.), 276, 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 receive the claims of creditors, which were to be presented within six months. The estate turned out to be solvent, and the commissioners reported a balance in the hands of the administrators after payment of all presented debts and claims, which was paid to the guardian of the intestate's heir. Two years after this, the covenantee was evicted, and sued the administrators, who pleaded the above facts in bar, to which the plaintiff demurred. It was held by the court that the limitation for exhibition of claims of creditors was conclusive as to the extent and amount of the administrator's liability, and this, whether the estate was solvent or not — that the administrators, having then lawfully divested them- selves of every part of the estate, could not be made liable for future claims, and that it was immaterial whether the claim did or did not exist within the specified time. "My reasoning is," said Brainard, J., who delivered the opinion of the court, "that as the claim was not exhibited until after the time limited, and as it was within no saving, therefore it is barred. . . . The claim therefore, if it exists, must be against the heir, who must also be the proper person to 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 liable in regard to assets real by descent. The daughter, in one sense, is heir to the covenant of warranty ; a covenant real, on which as such, as she has received no estate or inheritance she cannot be liable, for the heirs intended by the deed are heirs at common law, but under our statute of distribution she has 550 THE PARTIES BOUND AND BENEFITED mon law, he was not bound by the covenants of his testator, nor could the lands be followed in his hands.^ In this respect he en- joyed an even greater immunity than the heir ; for the latter, when named in his ancestor's covenants, was liable to the amount of the assets which had descended to him, but a devisee took the land received tlie surplus estate of the covenantor. [But see as to this the case of Hall V. Martin, 46 N. H. 337.] To this, in her bands, the equity of the claim seems to point. But to reach it may be difficult." The very able dissenting opinion of Mitchell, C. J., renders any other comment on this decision unneces- sary. One holding an unbroken covenant of warranty could not, he said, be designated in the statute as a creditor neglecting to present his claim, and the court could not have allowed it, if he had presented it. The statute of Connec- ticut, he showed, created a joint fund of the real and personal estates, and made both assets in the hands of the administrator — they also required a refunding bond to be given to him by the heirs, for the purpose of a security for all claims against such estates to the amount of all the assets, real and personal. "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 to the Court of Probate has been fulfilled by a distribution of the estate, and the acceptance of this bond for the heir ; and as no other bond or security for such creditors is required from the heirs, the property which the law intended to guard and preserve for the heir's benefit may be squandered with impunity, and with- out any remedy." Subsequently however a petition in chancery was filed in the same case (5 Day, 419) , on the hearing of which the court held that although the claim against the administrator might be barred, yet the petitioner's right was not extinguished, and the assets were held liable in equity in the hands of the heir or his guardian. In the subsequent case of Griswold v. Bigelow, 6 Conn. 259, a covenantee who was evicted thirty-four years after the estate of his covenantor was distributed after the usual proceedings and limitations of time for the exhibition ot claims, raised an administration de bonis non, exhibited the claim to the Court of Probate, which was allowed, and the personal assets being exhausted an order was granted for the sale of the real estate, which was accord- ingly sold in the hands of a hona fide purchaser, and these proceedings were confirmed by the Supreme Court of that State, in an able opinion by Hosmer, C. J., and there seems to have been no question made of the jurisdiction of the Court of Probate in the appointment of the administrator, and no 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 question then was whether the lien on the land of the decedent still continued ; the court had no doubt that it did, and that the distribution or alienation of the estate could not affect it in any way. From a defect in the administrator's deed, how- ever, his vendee was held not entitled to recover in ejectment. And see also Hall V. Martin, 46 N. H. 337, supra, p. 542, n. 1, where the subject of the lia- bility of the heir was elaborately considered. ' Plunkett V. Penson, 2 Atk. 290 ; Flasket v. Beeby, 4 East, 491. BY COVENANTS FOR TITLE. 551 clear of all liability. It will 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 as he would do as his heir by operation of law, is adjudged to talce by descent 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 fraud- ulent devises,! reciting that many persons, after having bound themselves and their heirs, had died seised of lands, and to the de- frauding their creditors had devised the same, so that the creditors had lost their debts, declared that all wills, &c., should be taken, as against such creditoi's and their executors, &c., to be void and of no effect ; and the third section gave the creditors a right of action upon their specialties against the heir and devisee jointly, and the devisees were made liable in the same manner as heirs, notwithstandin.g alienation by them. But in Wilson v. Knubley,^ although it was said by Lord Ellen- borough that the grievance recited in the preamble of 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, tliough it was agreed that the case came within the mischief intended to be remedied by the statute. The point that there being no heir the case did not come within the letter of the statute, which gave a remedy against the heir and devisee jointly, though mentioned in the argument, did not form a basis of the decision ; but in a later case,^ it was ex- pressly held that a specialty creditor could not maintain an action against the devisee alone, there being no heir. So it has been fur- ther held, in the construction of this statute, that it applied only where a debt in the ordinary sense of the word existed between the parties in tlie lifetime of the debtor, and therefore that an action of debt did not lie against the heirs and devisees of a surety for breaches of covenant which did not occur in his lifetime, even ' 3 & 4 William & Mary, c. 14 ; supra, p. 644. 2 7 East, 134. =" Hunting v. Sheldrake, 9 Mees. & Welsh. 256. 552 THE PARTIES BOUND AND BENEFITED though the damages upon the occurrence of such breach were liquidated, so that in form they might be sued for in an action of debt.i In consequence of these decisions the statute of fraudulent devises was amended by more recent legislation.^ But these decisions were based upon very technical grounds, and however possibly correct as construing a statute which gave a new remedy against devisees, they have not been applied to cases not strictly falling within them. Thus where a testator covenanted to pay an annuity which after his death fell in arrear, it was held that the devisees were liable, on the ground that the sums to be recovered were fixed and certain .3 Later cases have however gone farther, and extended the mean- ing of the word debt to unliquidated damages accruing after a testa- tor's death. Thus in a case in Ireland, where a testator devised lands to trustees to pay off by sale thereof all such just debts as he should happen to owe at his death, it was held that damages accruing after his death from a breach of his covenant for quiet enjoyment were a debt within the meaning of the will.* A similar case came up within a few months after, in the Vice- Chancellor's court, and was similarly decided. A testator cove- nanted with his lessee for quiet enjoyment, and afterwards devised his real estate, subject to and charged with the payment of his debts. After the death of the lessor the lessee was evicted, and brought his action against the executors of the lessor, who having ' Farley ». Briant, 3 Ad. & Ell. 839. " Act of II Geo. IV. c. 47, soon after supplied by that of 1 Will. IV. c. 47, which expressly includes covenants as well as debts, and also gives an action against the devisee alone where there is no heir ; and see the notes to Silk v. Prime, 2 Lead. Cas. in Eq., and to Jeffreson v. Morton, 2 Saund. 8 a. 3 Jenkins v. Briant, 6 Sim. 603, per Shadwell, V. C. The case was distin- guished from Wilson v. Knubley, inasmuch as there the covenant was said to be contingent, and unascertained damages only could be recovered for a breach of it ; here the covenants were absolute and the sums to be recovered were certain. " Bermingbam v. Burke, 2 Jones & La Touche, 699, per Sir E. Sugden, Ch., who had argued and gained Jenkins ». Briant. " Before,'' said he, " the legisla- tion bound all the assets of a testator by debts of the present description, a man was said to sin in his grave who did not sufficiently provide for his debts. It could not be disputed that this claim must have been admitted, had the testator simply said ' all my just debts.' It appears to me that is what he intended, and the supposed words of restriction are introduced only not to confine the trust to the debts which he then, that is at the time of making his will, owed.'' BT COVENANTS FOE TITLE. 553 pleaded plene administravit, the plaintiff took judgment of assets quando acciderunt, and had his damages assessed upon writ of in- quiry, and then filed a bill against the devisees of the lessor for satisfaction of these damages out of the real estate devised. It was contended on behalf of the devisees that as the damages were unli- quidated at the death of the testator, they could not constitute a debt within the meaning of the will,^ but Vice-Chancellor Wigram declared that he would be inclined, in the absence of authority, strongly to lean against that construction of the will which would exclude the claim in question. He did not agree in the observation made at the bar, that claims such as these were, in a moral point of view, distinguishable from debts due at the death of the testator, for if, he said, 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 prop- erty by will so as to make his guarantee valueless, though the title to the property should turn out good for nothing,^ and he referred the case to a Master to inquire upon the question of damages.^ ' And in a very recent case, where one assigned to the trustees of his marriage settlement an equitable interest in certain copy- holds, with a covenant for further assurance, and afterwards got himself admitted, and sold the copyholds and appropriated the purchase-money, it was objected by his simple contract creditors ' Under the decision in Wilson v. Knubley and Farley v. Briant, supra ; as also in Jenkins v. Briant, 6 Sim. 603. ^ The Vice-Chancellor, moreover, was glad to conceive that the case was ruled by the decision in Earl of Bath v. Earl of Bradford, 2 Ves. 589, and Lomas v. Wright, 2 Mylne & Keen, 775, in neither of which, however, was the point argued or very distinctly made, in the first case, because Wilson v. Knub- ley was not decided till nearly fifty years afterwards, and in the second the plaintiifs being volunteers (claiming under a voluntary settlement for illegitimate children, see infra, Ch. XV.), were held not entitled to compete with simple contract creditors for valuable consideration, but, as against the devisees of the debtor, they were held entitled to stand in the place of mortgagees who had ex- hausted the fund provided by the testator for the payment of debts. The Vice- Chancellor was doubtless riot then aware of Bermingham v. Burke, which was much more in point. ' Morse v. Tucker, 5 Hare, 79. See as to the power of the court of chan- cery to award damages, Lord Cairns' Act, infra, Ch. XV. 554 THE PARTIES BOUND AND BENEFITED in a suit for the administration of his estate after his death, that the covenant was not broken, as there had been no demand made under it by the trustees, and that there could be no specialty debt unless there were a covenant to pay, or something equivalent, which here there was not, but the court held that the trustees were entitled to prove against the estates as for a specialty debt.^ 4. Of the Executor of^Admimstrator. — %ef" liability of an executor differs from that of the heir, in that while the latter is not bound by his ancestor's covenants unless named in them, a contrary rule prevails as to the former.^ Nor does any distinction prevail between the liability of an executor upon covenants broken after the testator's death, and those broken before that event.^ ' In re Dickson, Law R. 12 Eq. 156, per Romilly, M. R. "It is argued that as a deed reciting a debt does not create a specialty debt unless it contains a covenant to pay it, so the recitals here can create no debt, which I assent to ; but this is not that case. Then it is contended that a covenant for further assur- ance is merely a covenant to pay when called upon, and that the settlor was never called upon to pay ; and no doubt this is true, but I think that this cir- cumstance cannot avail him, or rather his estate in this case, inasmuch as it was the duty of the settlor, without being applied to, to transfer this sum of money to the trustees of his marriage settlement ; and if I were to hold that an appli- cation is necessary to create the obligation, I should be giving advantage to a man and allow him to avoid paying a debt by fraudulently concealing an act of misconduct on his part. I think also that the cases generally tend to this result, either that the covenant is nothing or that it created a specialty debt." ^ " And therefore if a man bind himself by obligation or covenant to pay money, or to do any such like thing, and do not bind his executors or adminis- trators by name, in this case the executor or administrator may be sued and may be charged as far forth as if they were named ; " Touchstone, 482 ; Bro. Abr. Covenant, pi. 12 ; Went. Ex. c. 11, pp. 239, 243, &o. Nor is this liability of the executor confined, as the above quotation might seem to imply, to mere obli- gations to pay money, but it extends to any " obligation, contract, debt, cove- nant or other duty," Wheatley ». Lane, 1 Saund. 216, note ; Com. Dig. Covenant, C. 1 ; Plumer v. Marchant, 3 Burr. 1380; Siboni v. Kirkman, 1 Mees. & Welsb. 419, except such as are of a particular personal character, of which instances may be found in 2 Williams on Executors, 1469, and Wentworth ». Cock, 10 Ad. & Ell. 42. It is sufficient to say that covenants for title are not included in these exceptions; but see Chambers v. Wright, 40 Mo. 482, supra, p. 547. ■■' In Perrot v. Austin, Cro. Eliz. 232, it is said to have been resolved that if one covenant that his executors shall pay ten pounds, no action will lie against them, for it was no debt of the testator, and therefore could not survive. But Lord Mansfield said, in Plumer v. Marchant, 3 Burr. 1380, that this was an ex- traordinary case, and the contrary has been recently held, Randall v. Rigby, 4 BY COVENANTS FOR TITLE. 555 5. Of the Assignee. — The liability of an assignee upon cove- nants for title entered into by his assignor is one which can never Meea. & Welsb. 130 ; ex parte Tindall, 8 Bing. 402. So with respect to the cove- nants for title ; in Wells v. Fydell, 10 East, 816, one who had received a covenant for quiet enjoyment was evicted after the death of the covenantor, and no ques- tion seems to have been made of the liability of his executor, although the covenant had not been broken in the lifetime of the testator. The cases of Swan V. Stranshan, Dyer, 257 a ; Proctor u. Johnson, 2 Brownl. 214 ; Adams v. Gibney, 6 Bing. 656 ; and Andrew v. Pierce, 1 Bos. & Pull. 158, which might be thought authorities against this position, will on examination be found to have been decided upon another ground ; supra, p. 364, 469. In Williams v. Burrell, 1 C. B. 401, which was elaborately argued, covenant was brought against executors for a breach, after the testator's death, of a warranty entered into by him, and no question was made on the argument of the liability of the executor depending upon the breach happening before or after the testator's death; and from a remark made by Maule, J., in the course of the argument, the point seems not to have been overlooked, as he said: " Here the heir being named and the executors not, it may be contended that the latter were in- tended to be excluded." The case however was argued and decided upon other grounds, and Tindal, C. J., said, " Upon principle and authority we think this an express covenant for quiet enjoyment, and consequently that the de- fendants are liable thereon as executors of the covenantor ; " see this case, supra, p. 470, n. 2. In McClure v. Gamble, 3 Casey (Pa.), 290, the court said : " This is an action on a covenant of warranty in which the grantor covenanted ' for himself and his heirs,' and it is argued that under such a covenant the executors are not bound, but the heir only. It is thought because the grantor expressly included his heirs in the yovenant, he has impliedly excluded his executors, but this does not follow, for by binding himself he binds his estate, so far as it is represented by his executors, whereas the heir could not be bound without express terms, and this accords with Williams v. Burrell, 1 C. B. 402. And if the heir at common law is the only one found [bound] as heir by such a covenant, the law would lean in favor of equality of contribution by preferring the action against the executors or administrators." In Hovey v. Newton, 11 Pick. (Mass.) 421, it was held that damages for a breach of the covenant for quiet enjoyment, which had accrued both before and after the covenantor's death, could be recovered in one and the same action against his administrator, the court saying, " The whole damage sustained by the plaintiffs from the breach of the covenant of the intestate becomes a debt against his estate, for which the defendant is answerable." And it is well settled that, in the absence of local statutes to the contrary, a covenant for quiet enjoyment, for further assurance, or of warranty, is in no respect different, as to the liability which it imposes on the executor, from any other specialty debt, as for instance a cove- nant to pay a certain sum of money, which though the time of payment might be subsequent to the death of the covenantor, yet would create a valid claim against his executor. Where however, in Collins v. Crouch, 13 Q. B. 542, an action was brought against an executrix of an assignee upon a covenant to perform certain cove- 556 THE PARTIES BOUND AND BENEFITED arise where the deed which contains the covenants conveys an estate in fee-simple ; as in such case the land passes at once and entirely from the possession of the vendor, who has therefore no estate to transfer to a subsequent purchaser. But the question of an assignee's liability may arise where the conveyance is of a lease- hold estate, and the covenants are then held binding upon the assignee of tlie reversion.^ Having thus considered the liabilities, we . next approach the subject of the rights arising under the covenants for title. 1. Of the Covenantee. — As the covenants for seisin, for right to convey and against incumbrances, are in this country, as a gene- ral rule, held to be broken as soon as they are made,^ it follows that immediately upon the execution of the deed which purports to con- vey the estate, a right of action upon these covenants enures to the party wlio has received them, upon which his damages will be real or nominal, according to the injury which the defective title has visited upon him.^ nants in a lease and indemnify the assignor for the breach of any of them, the defendant pleaded plene adminisiravit, and showed at the trial that the entire assets, including the consideration-money, had, before the breach complained of, been applied to the payment of simple contract debts, and it was held that the executrix was not bound to retain the proceeds of such sale for the purpose of indemnifying against future breaches of covenant. See also Wyse v. Snow, 5 Irish Jur. 87 ; Wildridge v. McKane, 1 Molloy, 122. As upon general princi- ples it would seem unjust to postpone the distribution of a decedent's estate because of possible future breaches of covenants for title made by him (a course which would obviously make impossible the settlement of the estate of any one ■vyho had dealt largely in real estate), it is in many States provided by statute, as it is in Pennsylvania (see Musser v. Oliver, 9 Harris, 362), that an executor distributing the estate under order of the court, and taking refunding bonds from the distributees, is protected from any future claims. ' See Thursby v. Plant, 1 Saund. 237, and notes. It has been held other- wise, however, where the covenant is one of indemnity merely, and assigns not named in it ; Doughty u. Bowman, 11 Q. B. 452. In Buck v. Binninger, 3 Barb. (N. Y.) 403, it was obviously held that the purchaser of a remainder expectant upon the determination of a lease for life, in which was a covenant for quiet en- joyment, could do nothing to interfere with the enjoyment of the life-estate by the tenant, and the case seems to have been put on the ground of preventing circuity of action ; but the more natural reason would seem to be that the pur- chaser simply took the estate subject to the tenancy. ' See supra, p. 320, 334 et seq. ' Supra, p. 263 et seq. BY COVENANTS FOE TITLE. 557 It would also seem to follow that after the lapse of twenty years from the execution of the deed, the common-law presumption that these covenants had been satisfied or released would arise,^ even if they should not come within any local statutory enactment upon the subject.^ With respect, however, to the covenants for quiet enjoyment, for further assurance and of warranty, a statute of limi- tation, expressed as such statutes usually are, would not begin to run until there had been an actual breach, and of course the pre- sumption would not arise until twenty years from that period.^ The questions arising as to covenants being joint or several, have already been noticed as respects the liabilities of the covenantors.* It remains to consider them with respect to the rights of the covenantees. It has been settled from an early day that all covenants, including of course covenants for title, are to be construed as joint or several, according to the interest taken by the parties to whom they are made, or in whom the right to take advantage of them has vested. Thus in Slingsby's case, which is generally cited as the leading authority, where the defendant granted to four, although he cove- nanted " with each and every of them " that he was seised in fee, yet it was held that all must join iu an action on the covenant," and ' Stewart v. West, 2 Harris (Pa.), 338; Heath v. Whidden, 24 Me. 383; Jenkins v. Hopkins, 9 Pick. (Mass.) 544, iu which last case it was held that accord and satisfaction was the proper plea upon which to rest the defence. ' Clark V. Swift, 3 Met. (Mass.) 890 ; Rev. Stats, of Massachusetts, c. 120, § 7 ; Bird v. Smith, 3 Eng. (Ark.) 368 ; Webber v. Webber, 6 Greenl. (Me.) 138 ; Pierce v. Johnson, 4 Vt. 255. In the late case in Missouri, however, of Chambers v. Smith, 23 Mo. 174, it was held that the statutory covenant for seisin 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 to run with the land. See supra, p. 647 n. " Heath v. Whidden, 24 Me. 383; Stewart «. West, 2 Harris (Pa.), 338; 9 Jarm. Conv. 402 ; Crisfield v. Storr, 36 Ind. 129. * Supra, p. 636. ' 5 Coke, 18. " It appeared by the plaintiiF's own showing in his declara- tion, that the plaintiffs only cannot maintain an action of covenant, but the other covenantees ought to have joined iu the action with them, notwithstanding these words et ad et cum quolibet et qualibet eorum, for as to these words this differ- ence was agreed, when it appears by the declaration that every of the cove- nantees hath, or is to have a several interest or estate, there, when the covenant is made with the covenantees, et cum quolibet eorum, these words, cum quolibet 558 THE PARTIES BOUND AND BENEFITED this principle has been since recognized in many other cases.^ Mr. Preston however expressed the opinion that by express words clearly showing the intention, a covenant might be joint or several, notwithstanding tlie nature of the interest,^ and some dicta in re- cent cases in the Exchequer in approval of this ^ have been some- times considered as causing a difference of decision between that eorum, make the covenant several in respect of their several interests. As if a man by indenture demises to A blackacre, to B whiteacre, to C greenacre, and covenants with them et quoUbet eorum that he is lawful owner of all the said acres, in that case, in respect of the said several interests, by the said words et cum guolibet eorwn, the covenant is made several ; but if he demises to them the acres jointly, then these words cum quoUbet eorum are void, for a man by his covenant (unless in respect of several interests) cannot make it first joint and then to make it several by the same or the like words cum quoUbet eorum, for although sundry persons may bind themselves et quemlibet eorum, and so the obligation shall be joint or several at the election of the obligee, yet a man cannot bind him- self to three and to each of them to make it joint or several at the election of several persons for one and the same cause, for the court would be in doubt for which of them to give judgment, which the law would not suffer." ' Eccleston v. Clipsam, 1 Saund. 153 ; Spencer v. Durant, Comb. 116 ; Saun- ders V. Johnson, Skin. 401 ; Scott ». Godwin, 1 Bos. & Pull. 67 ; Anderson v. Martindale, 1 East, 497 ; Lane v. Drinkwater, 1 Cromp. Mees. & Rose. 599 ; Bradburne v. Botfield, 14 Mees. & Welsh. 559 ; Foley v. Addenbrooke, 4 Q. B. 197; Hopkinson v. Lee, 6 id. 964; Carthrae v. Browne, 3 Leigh (Va.), 98; Comings v. Little, 24 Pick. (Mass.) 266 ; supra, p. 536. * Touchstone, 166 (Preston's ed.). The opinion thus expressed is as follows : " On the subject of joint and several covenants that eminent lawyer, Sir Vicary Gibbs, assumed that covenants must necessarily be joint or several, according to the interests. The language was, ' Wherever the interest of parties is separate the action may be several, notwithstanding the terms of the covenants on which it is founded may be joint ; and where the interest is joint the action must be joint, although the covenant in language purport to be joint and several.' With great deference, however, the correct rule is that, by express words clearly in- dicative of the intention, a covenant may be joint or joint and several, to or with the covenantors or covenantees, notwithstanding the interest is several ; so they may be several although the interests are joint. But the implication or con- struction of law when the words are ambiguous or are left to the interpretation of law, will be, that the words have an import corresponding to the interest, so as to be joint when the interest is joint and several when the interest is several, notwithstanding language which, under different circumstances, would give to the covenant a different effect. The general rule proposed by Sir Vicary Gibbs, and to be found in several books, would establish that there was a rule of law too powerful to be controlled by any intention, however express." ' Sorsbie «. Park, 12 Mees. & Welsh. 146 ; Keightley v. Watson, 3 Exoh. 716. BY COVENANTS FOR TITLE. 559 tribunal and the Queen's Bench.^ An examination of the cases themselves will however show that there is no real conflict of authority,^ and the result of all the cases may perhaps be thus ' 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 Hopkinson, his heirs, &o., "and also a distinct covenant with and to Ann Caroline Hogg, her heirs," &o., and Lord Denman, after refer- ring to the often-affirmed case of Anderson v. Martindale, 1 East, 497 (where there was a covenant with J. Anderson to pay him an annuity, and also to and with E. Wyatt to pay the said annuity to Anderson, which Lord Kenyon held on the authority of Slingsby's case to be a joint covenant, saying, " the covenant to both was for the same thing, and though the benefit was only to one of them, yet both had a legal interest in the performance of it, and therefore the legal interest being joint during the lives of both, on the death of one it survived to the other"), said, " The language in Anderson v. Martindale as entirely confines the covenant to the plaintiff and makes another separate covenant with E. Wyatt as any words not directly exclusive can make it. In Slingsby's case the covenant was with certain persons named ' et ad et cum quoUbet et qualibet eorum.^ No words can be stronger to give the plaintiff an option to sue all jointly or each separately. Yet in both the court held that by reason of the joint interest in the subject-matter of the suit, as disclosed in the deed itself, the action must be joint. We think it would be waste of time to argue that the words ' as a distinct cove- nant ' do not furnish any stronger inference of the intention to exclude than those just cited from those well-known cases. If they are still law the present case must be decided against the plaintiff. We see no ground for doubting whether they are." " Indeed, in the case of Bradbume v. Botfield, 14 Mees. & Welsh. 559, Baron Parke thus refers to the strictures by Lord Denman in Hopkinson v. Lee, supra, of the remarks made by Lord Abinger and himself in Sorsbie v. Park : " The Court of Queen's Bench," said the learned baron, " in the case of Hop- kinson V. Lee, have supposed that Lord Abinger and myself had sanctioned some doctrine at variance with the case of Anderson v. Martindale and Slingsby's case, which it was far from mj' intention, and I have no doubt from Lord Abinger's, to do, it being fully established I conceive by those cases that one and the same covenant cannot be made both joint and several with the covenantees. It may be fit to observe that a part of Mr. Preston's explanation that, by express words, a covenant may be joint and several with the covenantors and covenantees, not- withstanding the interests are several, is inaccurately expressed ; it is true only of covenantors, and the cases cited from Salkeld, p. 393, relates to ihem; prob- ably Mr. Preston intended no more, and never meant to assent to the doctrine that the same covenant might be made by any words, however strong, joint and several, where the interest was joint ; and it is this part, I apprehend, of Mr. Preston's doctrine to which the Court of Queen's Bench objects. I think it right to give this explanation, that it may not be supposed that there is any difference on this point with the Court of Queen's Bench." In Keightley v. Watson, supra, moreover, it expressly appeared on the face of the instrument that the parties had a separate interest, so that the court decided it to be a separate covenant, both in accordance with the words and the interest. 560 THE PARTIES BOUND AND BKNEPITBD stated : where the interest is joint, the covenant can never be joint and several, that is, the covenantees can never have the option whether they shall sue jointly or severally, but they must sue jointly if they can ; where, however, the deed shows an interest in the covenantees which is several, a covenant which is joint in form may be sued upon by one covenantee alone. ^ Where the benefit of covenants for title has descended upon co- parceners, all must join in suing upon it ; ^ if it has vested in tenants in common, all may join in respect of their joint possession,^ or each may, it seems, sue separately, at his election.* ' James v. Emery, 8 Taunt. 245 ; Withers v. Bircham, 3 Barn. & Cress. 254 ; Servante v. James, 10 id. 410 ; Story v. Richardson, 6 Bing. N. C. 129 ; Poole V. Hill, 6 Mees. & Welsb. 835 ; Palmer v. Sparshott, 4 Scott's New R. 743 ; Mills V. Ladbroke, 7 Man. & Grang. 218 ; Harrold v. Whittaker, 11 Q. B. 161 ; Sharp v. Conkling, 16 Vt. 355. ^ Becharms v . Horwood, 10 Bing. 526 ; Tapscott v. Williams, 10 Ohio, 443. ^ Midgley v. Lovelace, Carthew, 289 ; Fowls v. Smith, 5 Barn. & Aid. 850 ; Henniker v. Turner, 4 Barn. & Cress. 157 ; Paul v. Witman, 3 Watts & Serg. (Pa.) 407. ^ Midgley v. Lovelace, supra; Swett v. Patrick, 2 Fairf. (Me.) 181; Lamb v. Danforth, 69 Me. 324; Hammond on Parties, 29; Walford on Parties to Actions, 423; Broom on Parties to Actions, 27. The right of tenants in common in gen- eral to sue jointly or severally, depends upon the subject of the action and the interest they have in it, and the student must distinguish between cases where it is said that tenants in common may, and where they must join or sever. InPaul v. Witman, 3 Watts & Serg. (Pa.) 409, covenant was brought by two devisees of a testator and the heirs of a deceased devisee, and it was said, " Whether the plain- tiffs can sustain a joint suit is a point not without difficulty. The contract was made with the testator, and it was unreasonable that he should be at liberty by devising the land in separate parcels to subject the warrantor to as many actions as there were devisees. Suppose the warrantor on eviction of the warrantee is ready and willing to pay, how is he to ascertain the proportion to which each of the devisees is entitled when the portions of the real estate devised are of unequal value ? Is the warrantor to be liable to as many suits as there are heirs ? Al- though as between themselves their interests are several, yet as respects the war- rantor they hold a joint interest, and as such may sue jointly. Of this, as it is for his benefit, the warrantor could not complain. When a joint interest is cre- ated, either by the parties or by act of law, the covenantees cannot sever in the action. And the reason assigned is, that if several were permitted to bring dis- tinct actions for one and the same cause when the interest is joint, the court would be in doubt for which of them to give judgment ; Slingsby's case, 5 Co. 19 ; 1 East, 500. That all the heirs should join in the suit is but justice to them as well as the covenantor, for they are equally entitled to the money. Devisees may apportion the money between themselves, and why compel them to bring separate suits when it is to their advantage as well as the warrantors that the suit BY COVENANTS FOR TITLE. 561 2 and 3. Of the Heir and Devisee. — It has been seen that the liability of an heir depended, among other things, upon his being named in the covenant. ^ In the case of the ancient warranty, the same rule was applied as respects the right of the heir to sue. Unless named in the warranty, he could not take advantage of it.^ But with respect to covenants, this rule has been sought to be altered, and the conclusion seems to have been arrived at, that where from the instrument the intention appears that a covenant in its nature capable of running with land, should continue in oper- ation longer than for the life of the covenantee, advantage may be taken of it by the heir, although not named in terms ; ^ and it has been further suggested that such covenants might, in general, be construed to run with an estate of inheritance to the heir, unless should be joint? Whether separate suits will not lie may perhaps be doubtful, since the decision of Twynam v. Pickard, 2 Barn. & Aid. 105. In that case it is ruled that covenant will lie by the assignee of the reversion of part of the de- mised premises against the lessor for not repairing." In the subsequent case of McClure v. Gamble, 3 Casey (Pa.), 288, the title which the covenant was intended to assure became vested in a tenant for life, with remainder over, and the tenant for life, being evicted, brought covenant. It was objected that the title and the covenant were single, and that all those entitled to the remedy upon it must join in the action. "We regard this objection as sound," said the court, " and as receiving support from the reasoning of Mr. Justice Rogers in the case of Paul V. Witman, though in that case it was decided only that different owners may properly join. Regarding the tenant for life and the remainder-men as entitled, as against the covenantor, to one seisin and property divided as among themselves into different periods, we think that the action on the covenant given to secure that seisin ought to be single, otherwise the covenantor, not being able to set up the judgment of one against the other claimants, might have to pay to all much more than is required by his covenant, might be subjected to innumerable actions for a single breach of the same covenant. It may be, however, that alienors of different parcels of the land would be allowed to sue severally for the parts from which they have been respectively evicted." "There is much force in this reasoning," it was said in the very recent case of Crisfield v. Storr, 36 Md. 148, " and the decision lays down the correct rule of law by which such a case as this ought to be governed." In Lawrence v. Montgomery, 37 Cal. 183, one con- veyed to tenants in common, with a covenant that he had not sold nor incum- bered the land, which was held to be broken as soon as made, and therefore did not pass with the release by one of them to the other ; the cause of action accrued jointly. ' Supra, p. 660. '^ Co. Litt. 384 6; supra, p. 551. ^ Lougher v. Williams, 2 Lev. 92 ; Sacheverell ». Froggatt, 2 Saund. 867 ; Piatt on Covenants, 517 ; and see the able argument of Mr. Gilford in Kingdon V. Nottle, 1 Maule & Selw. 357 ; 4 id. 63. 36 562 THE PARTIES BOUND AND BENEFITED • an evident intention be manifested to confine them to the cove- nantee. ^ The right, however, of an heir to take advantage of the covenants for title wliich his ancestor has received, depends, throughout the greater part of this country, upon the nature of those covenants, as it has been seen in a former chapter that the covenants for seisin, for riglit to convey and against incumbrances, are held to be broken as soon as made, and thereby turned into choses in action, incapable of transmission or assignment.^ A suit upon these covenants can therefore only be maintained by the personal representative of the covenantee. Hence it has been somewhat generally said that these covenants do not run with the land ; but as thus stated the propo- sition is scarcely accurate, as all the covenants for title run with the land until breach, and the difference between the American and the English authorities is, that according to the former, the covenants for seisin, for right to convey and against incumbrances are held to be broken as soon as made ; while according 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 until eviction.^ 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 occiir in the lifetime of the ancestor or testator. Although from some expressions in the cases of Kingdom;. Nottle* and King v. Jones,^ it would seem to have been thought that the modern covenants for title, like the ancient warranty, descended as to their benefit upon the heir, irrespective of the time at which the breach took place, yet such a doctrine has been since corrected,^ ' Eoe V. Hayley, 12 East, 464. = Supra, p. 813 et seq. ^ Supra, p. 334. As to what may constitute an eviction see supra, p. 144 et seq. ^ 1 Maule & Selw. 355 ; see supra, p. 324. ° 5 Taunt. 418 ; supra, p. 324. ° See Raymond v. Fitch, 2 Cromp. Mees. & Rose. 588 ; Ricketts v. Weaver, 12 Mees. & Welsh. 718 ; Walford on Parties to Actions, 368. In Young v. Raincock, 7 C. B. 810, which was elaborately argued, the eviction having taken place during the lifetime of the purchaser, no objection was taken to the action having been brought by his executor. If the point had been considered as at all an open one, of course the objection would have been made ; see this case, supra, p. 612. BY COVENANTS FOR TITLE. 563 and it is now well settled that where the breach occurs in the life- time of the ancestor or testator, the right to recover the consequent damages vests in his personal representative ; and where a cove- nant of warranty was made to two tenants in common, both of whom were evicted, and one of them afterwards died, it was held that the right survived, and that the action was rightly brought by the other covenantee for the whole damage sustained.^ Where, however, the breach occurs after the death of the ancestor or testa- tor, the right of action must be exercised by the heir or devisee, on whom the damage has fallen.^ If, however, the heir or devisee be at that time dead, the right of action vests in his personal repre- sentatives, the damages being, of course, personal estate.^ 4. The foregoing remarks, and those that have been made in a former chapter, may be also referred to in considering the rights of the executor or administrator. They are entitled to the benefit of the covenants for title which could have been taken ad- vantage of by the testator or intestate during his lifetime, and which were broken before his death.* 5. As respects the rights .of the assignee, a distinction always existed between warranty and the covenants for title. Thus, the warranty implied by the word dedi could not be taken advantage of by the assignee of him who had received it ; ^ but " if a man make a lease for years by the word conoessi or demisi (which implies a covenant), if the assignee of the lessee be evicted, he shall have a writ of covenant." ^ 1 Townsend v. Morris, 6 Cow. (N. Y.) 123. ^ Tapscott V. Williams, 10 Ohio, 442; Grist v. Hodges, 3 Dev. (N. C.) 201; South h. Hoy, 3 Monr. (Ky.) 95 ; Pence v. Duvall, 9 B. Mon. (Ky.) 48 ; Williams V. Hogan, Meigs (Tenn.), 187. •" Beddoe v. Wadsworth, 21 Wend. (N. Y.) 120. * Unless in such a case as that of Townsend v. Morris, supra. 6 " If a man make a feoffment by this word dedi, which implies a warranty, the assignee of the feoffee shall not vouch ; " Spencer's case, 5 Coke, 16 ; and see supra, Ch. X. * 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 an annual rent ; and therefore it is reasonable when he hath applied his labor and employed his cost upon the land and be evicted (whereby he loses all) , that he shall take such benefit of the demise and grant as the first lessee might, and the lessor hath no other prejudice than what his especial contract with the first lessee hath bound him to." 564 PARTIES BOUND AND BENEFITED BY COVENANTS FOE TITLE. So with respect to the warranty and the covenant when expressed in words : " Regularly," says Coke,i " if a man warrant land to another and his heirs without naming assigns, his assignee shall not vouch ; " but with respect to a covenant the rule was different, and the assignee could take advantage of it though not named.^ The right however of an assignee to take advantage of covenants entered into with one prior to himself in the chain of title, depends upon many circumstances, which have been attempted to be ex- plained in a former chapter.^ ' Co. Litt. 384 6. ' Spencer's case, 5 Coke, 16. ^ See supra, Ch. X. THE purchaser's RIGHT TO RECOVER, ETC. 565 CHAPTER XIV. THE purchaser's RIGHT AT LAW TO RECOVER BACK OR DETAIN THE PURCHASE-MONET AFTER THE EXECUTION OP THE DEED, The distinction between the rules which govern the relation of vendor and purchaser before and after the execution of the deed — while the contract is still executory, and after it is executed — is a broad and familiar one. Although the general principles of the contract of sale of real estate, both in this country and in England, exact less from the vendor than the rules of the civil law demand,^ yet, while the contract is still executory, they recognize and enforce the right of the purchaser to a title clear of defects and incumbrances, and this right does not depend upon the terms of the contract, but is given by the law ; ^ nor, except in particular cases, is it affected by the nature and extent of the covenants for title which the pur- chaser is to receive.^ ' Much objection is made by the admirers of the ciTil law to the doctrine of caveat emptor, as applied to real estate (Cooper's Justinian, 610, 620, &c.), but, as was well remarked by Lord Eldon, " no one in his senses would take an offer of a purchase from a man merely because he stood upon the ground ; " Hiern v. Mill, 13 Ves. 114. "In contracts of purchase," as has been well expressed, " the vendor and vendee, in the absence of special circumstances, are to be con- sidered as acting at arm's length ; and hence, although the vendor will not be allowed to practise any artifice for the purpose of concealing defects, or to make such representations as may have the effect of throwing the purchaser off his guard, yet, on the other hand, where the means of information as to the facts and circumstances affecting the value of the subject of sale are equally accessible to both parties, and neither of them does or says any thing to impose upon the other, the disclosure of any superior knowledge which one party may have over the other is not requisite to the validity of the contract ; there being no breach of any implied confidence that either party will not avail himself of his superior knowledge, because neither party reposes such confidence, unless specially ten- dered or required ; " Atkinson on Marketable Titles, 134. " See supra, p. 42. ' The exceptions to this proposition are perhaps peculiar ones, as where a purchaser makes a chancing bargain and relies on the covenants he is to receive 566 THE puhchaser's right at law But when the contract has been consummated by the execution and delivery of the deed, a different rule comes in.^ Being thus consummated, any inconsistencies between the terms of the con- tract and the terms of the deed are, in general, to be governed solely by the latter, into which the former are merged,^ and the purchaser's only right to relief from defects or incumbrances, whether at law or in equity, depends, in the absence of fraud, solely upon the covenants for title which he has received. The connection therefore between the covenants for title and the purchaser's right to relief is, on both sides of the Atlantic, a neces- sary and intimate one.^ This has been settled by a series of deci- sions from an early period. In the first case which Lord Coke reports, it was held that if one seised in fee convey without war- ranty, " the title papers pass to the grantee, because he has to defend the land at his peril." * The early leading authority is however Maynard's case,^ where Lord Nottingham said, " He that purchases lands without any covenants or warranties against prior for his protection ; Sugden says, " If a purchaser before executing the articles has notice of an incumbrance which is contingent, and it is by the articles agreed that the vendor shall covenant against incumbrances, the purchaser has entered into them with his eyes open, has chosen his own remedy, and equity will not assist him ; and he cannot therefore detain any part of the purchase-money ; " Sugden on Vendors. Vane v. Lord Barnard, Gilbert's Eq. R. 5 (supra, p. 91, n.), which is the authority cited, was not strictly a case of vendor and purchaser ; it arose under a marriage settlement; and see Clarke v. Faux, 3 Russ. 320. ' The distinction is a familiar one, that there are many oases in which equity would have refused to decree a specific performance of the contract, yet which, being executed, it will refuse to disturb ; Dart on Vendors (4th ed.), 734 ; Story's Eq. Jur. §§ 206, 693. * Howes V. Barker, 3 Johns. (N. Y.) 506 ; Houghtaling t). Lewis, 10 id. 297 ; Griffith V. Kempshall, 1 Clark's Ch. (N. Y.) 571 ; Bull v. Willard, 9 Barb. S. C. (N. Y.) 642; Seitzinger u. Weaver, 1 Rawle (Pa.), 377; Ludwick v. Huntzin- ger, 5 Watts & Serg. (Pa.) 61; Shontz v. Brown, 3 Casey (Pa.), 131; Cole- man V. Hart, 25 Ind. 256, except in some cases, certain collateral and incidental covenants which are not merged in the deed; Colvin v. Schell, 1 Grant (Pa.), 226 ; Cox v. Henry, 8 Casey (Pa.), 20 ; Carr v. Roach, 2 Duer (N. Y.), 25. ^ Except in Pennsylvania, where, as will be hereafter shown, even after the execution of the deed, the contract is still executory as to such part of the pur- chase-money as is unpaid, and the absence or presence of covenants which include the defect is immaterial. * Buckhurst's case, 1 Coke, 1 ; see also Hodges v. Saunders, 17 Pick. (Mass.) 476 ; Redwine v. Brown, 10 Ga. 311. ' 2 Freem. 1 ; s. c. Rep. temp. Finch, 288, and Appendix to 3 Swanst. 651. TO DETAIN PURCHASE-MONEY, ETC. 567 titles if the lands be afterwards evicted by an eigne title, can never exhibit a bill in equity to have his purchase-money again upon that account ; possibly there may be equity to stop the payment of such purchase-money as is behind, but never to recover what is paid ; for the chancery mends no man's bargain, though it sometimes mends his assurance." ^ But even this suggested right of the purchaser to detain the pur- chase-money has long since been denied ; and it is one of the most settled principles of this branch of the law, 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, accident or mistake, he is absolutely without relief against his vendor, either at law or in equity.^ • On the first hearing of the case, the Chancellor said, " Shall the loss fall upon the defendant when he hath sold without any covenants or warrantees, and without any other conditions than what are performed ? Caveat emptor is a very needless advice, if the chancery case establish another rule instead of it, by declaring that equity must suffer no man to have an ill bargain ; " 3 Swanst. 653. ^ Urmston v. Pate (1794), reported in 4 Cruise, 394 (4th ed.), and Sugden on Vendors, cited by Lord Loughborough in Wakeman v. Duchess of Rutland, 3 Ves. 235 ; Craig ». Hopkins, 2 Coll. of Decis. 517 ; Co. Litt. 384 a, note ; Thomas -v. Powell, 2 Cox's Ch. 394 ; Bree v. Holbech, Doug. 655. (This was a strong case. An administrator with the will annexed found a mortgage among the papers of his testator, and assigned it for full value, covenanting that neither the testator nor himself had done any act to incumber the mortgaged estate. The mortgage turned out to have been forged (but not by the testator) ; but as there was no evidence that the administrator knew of the forgery. Lord Mansfield held that the purchaser could not recover back what he had paid. The admin- istrator " did not covenant for the goodness of the title, but only that neither he nor the testator had incumbered the estate. It was incumbent on the plaintiff to look to the goodness of it." This case, though recognized as correct in this application, must be considered as confined to this application alone ; see Price V. Neale, 3 Burr. 1355 ; Cripps v. Read, 6 Term, 606 ; Jones v. Ryde, 6 Taunt. 488 ; Smith v. Mercer, 6 id. 76 ; Young v. Adams, 6 Mass. 182 ; U. S. Bank v. Bank of Georgia, 10 Wheat. 333); Johnson v. Johnson, 3 Bos. & Pull. 162; Soper ». Stevens, 14 Me. 133 ; Butman v. Hussey, 30 id. 266 ; Peabody m. Phelps, 9 Cal. 213; Reese v. Gordon, 19 id. 147; Frost v. Raymond, 2 Caines (N. Y.), 192; Abbot v. Allen, 2 Johns. Ch. 619; Governeur v. Elmendorf, 5 id. 79; Carr v. Roach, 2 Duer (N. Y.), 20; Burwell ». Jackson, 5 Seld. (N. Y.) 535; Miles v. Williamson, 12 Harris (Pa.), 142; Middlekauff v. Barrick, 4 Gill (Md.), 300; Falconer «. Clark, 3 Md. Ch. Dec. 151; s. c. 7 Md. 178 ; Harris v. Morris, 4 Md. Ch. Dec. 530 ; Earle v. Earle, Spencer (N. J.), 363; Doyle v. Knapp, 3 Scam. (111.) 334; Condrey v. West, 11 111. 568 THE purchaser's bight at law To this rule there is a single exception, where there has been concealment or misrepresentation amounting to fraud. In such 146; Beale v. Sieveley, 8 Leigh (Va.), 658; Commonwealth v. McClanaohan, 4 Rand. (Va.) 482 ; Sutton v. Sutton, 7 Gratt. (Va.) 238 ; Butler v. Miller, 15 B. Mod. (Ky.) 627; Williamson v. Raney, 1 Freem. Ch. (Miss.) 114; Allen u. Hopson, id. 276 ; Nance v. Elliot, 3 Ired. Eq. (N. C.) 408 ; Earle v. De Witt, 6 Allen (Mass.), 626; Laughery v. McLean, 14 Ind. 108; Small v. Reeves, id. 164; Johnson v. Houghton, 19 Ind. 361; Starkey v. Neese, 30 id. 224; Alexander v. McCauley, 22 Ark. 553; Maney v. Porter, 3 Humph. (Tenn.) 347; Lowry v. Brown, 1 Cold. (Tenn.) 4.27; Brandt v. Foster, 5 Clarke (Iowa), 293, where the text was cited; Allen v. Pegram, 16 Iowa, 172; Can- non V. White, 16 La. An. R. 89. "In the ordinary case of a sale of land," said Mason, J., in Piatt v. Gilchrist, 3 Sandf. S. C. (N. Y.) 118, " the possibility that the title may fail is a consider- ation 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 price. When the very thing occurs the hazard of which he has taken on himself, and for which he has received an equivalent, it would be any thing but equitable to restrain the collection of the unpaid purchase-money. It would be throwing upon the seller the very loss which he had declined to assume, and be making him, contrary to the intention of the parties, tlie guarantor of the title, at least to the extent of the sum due ; " see this case infra. There is a single case, said to have been decided by Lord Nottingham, which has laid down a different principle. In an anonymous case, in 2 Cas. in Ch. 19, the Chancellor is said to have relieved from payment of the purchase-money, when the purchaser was evicted by a title to which his covenants did not extend. But the case was not only not taken down by the reporter (nor included in the valuable MSS. cases preserved by the Chancellor himself; see Appendix to 3 Swanston), but he questions its accuracy and soundness in these pertinent notes : " 1. If declaration, at the time of the purchase treated on, that there was an agreement to extend against all incumbrances, not only special, it could not have been admitted. " 2. The affirmative covenant is negative to what is not affirmed, and all one as if expressly declared that the vendor was not to warrant but against himself, and the vendee to pay, because absolute without condition. " 3. Qumre. 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 bargain, or in other respects sets up a title to a stranger by collusion ? " Nota. In many cases it may easily be done," &c. "These remarks," says Sugden, " are unanswerable, and if the doctrine in this case were law, the consequences would be serious, for what vendor would permit part of the purchase-money to remain on mortgage of the estate, if he were liable to lose it, supposing the estate to be recovered by a person against whose acts he had not covenanted ? " Sugden on Vendors. TO DETAIN PURCHASE-MONET, ETC. 669 case, as fraud vitiates all it touches, the fact that the contract has been executed by the delivery of the deed does not deprive the purchaser of his right to relief, nor is it material whether the cove- nants for title do or do not extend to the particular defect or incumbrance. 1 But while this, as a general principle, is well settled, some diffi- culty has been experienced in England as to what degree of con- cealment or misrepresentation on the part of the seller will amount to fraud, and in a series of important cases the subject has received elaborate examination. The leading case in which the doctrine was distinctly laid down may be said to be Edwards v. McLeay,^ where the purchaser hav- ing discovered, after the receipt of his deed, that the ground of his stables and also of a driving way leading up to the house were part of a common, filed a bill to rescind the contract, and recover back the purchase-money with interest, and all the sums spent in repairs, and proved that the defendants were aware of these facts at the time of the contract, that they were not disclosed by the abstract or otherwise, and that the vendors represented themselves to be seised in fee of the whole estate. Sir W. Grant, M. E.., in deliver- ing his opinion, said : " This is a bill of rather an unusual descrip- tion. It is brought by the purchaser of an estate, who has had a conveyance made to him for the purpose of setting aside the sale and getting bacic his purchase-money, on the ground of an alleged misrepresentation with regard to the title of a part of such estate. It cannot certainly be contended that, by the law of this country, the insufficiency of a title, even when producing actual eviction, necessarily furnishes a ground for claiming restitution of the pur- chase-money. By the civil law it was otherwise. By our law a vendor is in general liable only to the extent of his covenants ; but it has never been laid down that on the subject of title there can be no such misrepresentation as will give the purchaser a right to claim a relief to which the covenants do not extend.^ .... ' And the refusal of the vendor to give covenants for title will not aflfect the right of recovery. " If the purchaser consents to waive the usual covenants, he is none the less entitled to the exercise of good faith and honesty on the part of the vendor ; " Haight v. Hayt, 19 N. Y. 474. 2 Coop. 308. ^ In the case of Urmston v. Pate, 4 Cruise on Keal Prop. 394, he went on to say, "there was no ingredient of fraud. Both parties misapprehended the law. 570 THE purchaser's right at law Whether it would be a fraud to offer, as good, a title whicli the vendor knows to be defective in point of law, it is not necessary to determine, but if he knows and conceals a fact material to the valid- ity of the title, I am not aware of any principle on which relief can be refused to the purchaser. . . . The only other objection wliich the defendants make to the relief sought by the bill is, that the purchaser is premature in his application, inasmuch as he has not yet been evicted, and may perhaps never be evicted. But I appre- hend that a court of equity has quite ground enough to act upon, and that it ought now to relieve the plaintiff from the conseqiiences of the fraud practised upon him." Upon an appeal,^ Lord Bldon said that the case resolved itself into the question whether the representation made to the plaintiff was not, in the sense in which we use the term, fraudulent. He was not apprised of any such decision,^ but he agreed with the Master of the Rolls that if one party make a representation which he knew to be false, but the falsehood of which the other party had no means of knowing, a court of equity will rescind the contract, and the decree was therefore affirmed.^ The vendor had no knowledge of any fact which he withheld from the purchaser. In the case of Bree v. Holbech, Doug. 654 {supra, p. 567, n. 2), it did not at all appear that the- administrator knew that the mortgage which he assigned was a forgery. Lord Mansfield says, ' if he had discovered the forgery, and had then got rid of the deed as a true security, the case would have been very different.' And the purchaser had leave to amend his replication if, upon inquiry, the case would support a charge of fraud." ' 2 Swanst. 308. " Lord Devon said of this remark in the great case of Small v. Attwood, when in the House of Lords (see infra, p. 571), " The expression of Lord Eldon, that he was not apprised 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 juris- diction had been practically applied, we may find an additional reason for the principle that nothing but the most clear and decisive proof of fraudulent repre- sentations, made under such circumstances as show that the contract was based upon them, — such a case indeed as Lord Eldon in his experience had not known to occur, — will justify the interference of a court of equity." ^ Though with some modification as to its extent, " as," said the Chancellor, " it seems to have gone too far on the subject of repairs and improvements. Its terms must be made conformable to the terms of the bill ■; striking out the word ' improvements,' and leaving the word ' repairs.' I give the plaintiff all that he asked by his bill, and I cannot give him less." In Sugden's "Law of Property as administered in the House of Lords," p. TO DETAIN PURCHASE-MONET, ETC. 571 This was followed by the great case of Small v. Attwood,^ origi- nally decided on the equity side of the Court of Exchequer, in 1832,^ and on appeal in theHouseof Lords, in 1838.^ There was little differ- ence in opinion as to the rule of law, either in the Exchequer or in the House of Lords, although the decree in the former rescinding the contract was reversed in the latter, the ficts * not being thought 653, he says, in speaking of this case, " Lord Eldon's statement of what he con- sidered to be the principle of the decree cannot alter the facts of the case, and his own previous observation shows that he did not consider it a case of moral fraud, but one where, in the sense in which a court of equity uses the terra, the representation was fraudulent. And such appears to be the real nature of the case. . . . The evidence of knowledge was, I think, quite sufficient to support the decree ; but it also proved that the sellers bona fide believed themselves to have a good title after so long a possession ; and indeed the title was one which it. was highly improbable would ever be impeached. Sir W. Grant's position was, that if a vendor knows and conceals a fact material to the validity of the title, relief is to be afforded to the purchaser. That is the true rule. If the title is fairly before the purchaser, he must rely on his covenants. This rule does not require any representation. If the seller knows a material fact and conceals it, that is, does not divulge it, he is responsible ; his motive is unimportant ; he is bound to give the purchaser the means of forming a judgment on the title, and is not to decide what he deems it necessary to disclose. Sir W. Grant did not, like the bill, put the case as one of gross fraud, although evidently, in the sense referred to by Lord Eldon, he declared the contract and conveyance to be fraud- ulent and void." This case of Edwards v. McLeay has been constantly cited as of the highest authority ; Attwood v. Small, infra ; Gibson v. D'Este, 2 Younge & Coll. (N. S.) 542; Wilde v. Gibson, 1 CI. & Finn. (N. S.) 605, where Lord Campbell said there was no case of higher authority in the books ; Young v. Harris, 2 Ala. Ill ; Van Lew v. Parr, 2 Rich. Eq. (N. C.) 338 ; Gans v. Ren- shaw, 2Barr (Pa.), 34. ' This case was, as Lord Brougham said of it in the House of Lords, "without any example within the experience of the oldest man in the profession, in point of length and of complexity of detail, or of the mass of matter with which it stands incumbered, and it is hardly exceeded by any cause of which there is any report in respect of the importance of the stake at issue." The amount of the purchase-money had been £600,000, and the costs before the appeal was heard in the Lords were £10,000. The leading counsel's brief was indorsed with a fee of 5000 guineas, and the hearing, first and last, occupied a greater number of hours than the trial of Warren Hastings. " 1 Younge, 461. 3 6 CI. & Finn. 232, 531. * The general features of the case were these : — Attwood was the owner of certain iron works, and Small and others repre- sented the British Iron Company. Upon a proposition of sale being made to the latter, Taylor, an agent and large shareholder, viewed the works while Attwood was there, and upon his report three of the directors wrote to Attwood proposing 572 THE purchaser's right at law sufficient to support the charge of fraud. Lord Brougham, in de- livering his judgment, said : " If two parties enter into a contract, and if one of them, for the purpose of inducing the other to con- tract with him, shall state that which is not true in point of fact, which he knew at the time that he stated it not to be true, and if upon that statement of what is not true, and what is known by the party making it to be false, the contract is entered into by the other party, then generally speaking, and unless there is more than that in the case, there will be at law an action open to the party entering into such contract — an action of damages grounded upon the de- ceit, and there will be a relief in equity to the same party to escape from the contract which he has so been inveigled into making by the false representation of the other contracting party. In one case, it is not necessary that all those three circumstances should concur in order to ground an action for damages at law, or a claim for relief in a court of equity ; I mean in the case of warranty given, in which the party undertakes that it shall in point of fact be so, and in which case, therefore, no question can be raised upon the scienter, upon the fraud or wilful misrepresentation. In this case that is clearly out of the question ; therefore all these circumstances must combine : first, that the representation was contrary to the to buy the property for £600,000, payable by instalments, upon the understand- ing that every facility should be given to Taylor to ascertain the correctness of the representations that had been made to him. These directors subsequently examined for themselves, and then reported to the company that they had con- cluded the treaty of purchase after the nature and capacity of the works had been fully investigated. Soon after, Taylor went there to reside as manager, and sent favorable reports to the company. Some negotiations ensued respecting the completion of the title, pending which the price of iron fell, and the company then proposed as a new term that a deputation should go to the works to examine whether certain data given by Attwood to Taylor were correct. The visit was paid ; and after communication with Taylor, who stated that although the calcu- lations submitted to him by Attwood were too close to estimate profits upon with safety, still that they proved the data given by Attwood to be more favorable to the buyer than the seller, the directors reported that Attwood had redeemed his pledge, and the contract was executed with some abatement in the price. Six months after, the company filed a biU to rescind the contract on the ground of false statements made in papers submitted to Taylor, misrepresentations to the deputation and concealment of faults. All these were denied by the answer, which declared that the representations were upon certain assumptions, and were general averages. The plaintiffs then amended their bill by striking out Taylor as a plaintiff and making him defendant, who in his answer denied all fraud and collusion with Attwood. ETC. 573 fact ; secondly, that tlie party making it knew it to be contrary to the fact ; ^ and thirdly and chiefly, in my view of the case, that it ' This proposition, though perfectly correct as stated in this application, must not be taken too broadly, or there will appear to be a conflict of authority which does not really exist. There can be no doubt that in most cases in which an action in the nature of a writ of deceit would lie at law, equity will lend its juris- diction to rescind the contract, but the converse by no means universally holds, for the heads of fraud and mistake are both in courts of law and equity as distinct as those of tort and contract. An innocent misrepresentation by mistake can never be made the ground of a personal action for fraud (which was cited ap- provingly in Fairbault v. Sater, 13 Minn. 231, and Brooks v. Hamilton, 15 id. 33), 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 sub- ject-matter of the contract destroys the consent necessary to its validity ; " 2 Kent's Com. 471 ; and this principle has been frequently applied in equity in the rescission of executed contracts for the sale of real estate ; 1 Story's Eq. § 142 ; Hitchcock V. Giddings, 4 Price, 135 ; Mead v. Johnson, 3 Conn. 597 ; Bradley V. Chase, 22 Me. 511 ; Davis v. Heard, 44 Miss. 51 ; Armstead v. Hundley, 7 Gratt. (Va.) 64 (see Sutton v. Sutton, id. 239) ; Smith v. Mitchell, 6 Ga. 458 ; Dale V. Eosevelt, 5 Johns. Ch. 182 ; Champlin v. Laytin, 6 Paige (N. Y.), 197 ; Daniel u. Mitchell, 1 Story (C. C. U. S.), 172 ; Mason v. Crosby, 1 Woodb. & Min. (C. C. U. S.) 342. After some difference of opinion between the Courts of Exchequer and Queen's Bench, it is now decisively settled in England that in order to support an action on the case for fraudulent representations it is not sufficient to show that a party made statements which he did not know to be true, and which were in fact false, — there must be fraud as distinguished from mere mistake ; Collins v. Evans, 5 Q. B. 804; Barley v. Walford, 9 id. 197; Moens v. Heyworth, 10 Mees. & Welsh. 147 ; Taylor v. Ashton, 11 id. 401 ; Ormrod v. Huth, 14 id. 651, and the weight of American authority is to the same effect ; Russell v. Clark, 7 Cranch (U. S.), 69 ; Young v. Covell, 8 Johns. (N. Y.) 26 ; Hammatt i). Emerson, 27 Me. 309 ; Weeks u. Burton, 7 Vt. 67 ; Ewins v. Calhoun, id. 79 ; Lord v. CoUey, 6 N. H.99; Aliens. Addington, 7 Wend. (N. Y.) 10; s.C. 11 id. 375; Tryonw. Whitmarsh, 1 Met. (Mass.) 1 ; Smith v. Babcock, 2 Woodb. & Min. (C. C. U. S.) 246; Lord v. Goddard, 13 How. (U. S.) 211. Without, however, the utterance of an actual falsehood, a party may still be liable in an action for deceit ; as where he states material facts as of his own knowledge (and not as mere matter of opinion or general assertion) about which he has no knowledge whatever ; as this direct wilful statement in ignorance of the truth is the same as the statement of a known falsehood, and will constitute a scienter; Kerr on Fraud, 19; Cabot v. Christie, 42 Vt. 121 ; Hazard v. Irwin, 18 Pick. (Mass.) 96 ; Lobdell u. Baker, 1 Met. (Mass.) 193; 8. c. 3 id. 469; Stone w. Denny, 4 id. 158; Medbury u. Watson, 6 id. 246 ; Hammatt v. Emerson, 27 Me. 309 ; Gough v. St. John, 16 Wend. (N. Y.) 646; Munroe o. Pritchett, 16 Ala. 785; Waters v. Mattingley, 1 Bibb (Ky.), 244; Thomas v. McCann, 4 B. Mon. (Ky.) 601; M'Ferran v. Taylor, 3 Cranch (U. S.), 281 ; and the same circumstances will, of course, induce equity to rescind the contract ; Joice «. Taylor, 6 Gill & Johns. (Md.) 58 ; Smith v. Babcock, 2 574 THE purchaser's right at law should be this false representation which gave rise to the contracting of the other party." ^ Woodb. & Min. (C. C. U. S.) 246 ; Tuthill v. Babcock, id. 298 ; Shackelford v. Handley, 1 Marsh. (Ky.) 500 ; Lookridge v. Foster, 4 Scam. (111.) 570 ; Turnbull V. Gadsden, 2 Strob. Eq. (S. C.) 14; Lanier v. Hill, 25 Ala. 558; Eimer v. Dugan, 39 Miss. 482; Smith v. Richards, 13 Pet. (U. S.) 26. ' This has been often recognized by American authority ; Concord Bank v. Gregg, 14 N. H. 331; Warner v. Daniels, 1 Woodb. & Min. (C. C. U. S.) 90; Mason v. Crosby, id. 342 ; Tuthill v. Babcock, 2 id. 298 ; Brown v. Manning, 3 Minn. 36; Turnbull u. Gadsden, 2 Strob. Eq. (S. C.) 14; Crittenden v. Craig, 2 Bibb (Ky.), 474; Shackelford v. Handley, 1 Marsh. (Ky.) 500; Winston v. Gwathmey, 8 B. Men. (Ky.) 23; Parham v. Randolph, 4 How. (Miss.) 435; English V. Benedict, 25 Miss. 167 ; Oswald v. McGehee, 28 id. 340 ; Davis v. Heard, 44 Miss. 54 ; Board of Commissioners v. Younger, 29 Cal. 177 ; Foster v. Kennedy, 38 Ala. 362; and see the remarks of Marshall, C. J., at the close of the decision in M'Ferran v. Taylor, 3 Cranch, 282. In the absence, however, of evidence on this point, it is presumed that a court of equity would be apt to con- clude that if the misrepresentation were made, it had its effect to lead on the purchaser to complete the contract. Lord Brougham added that the inference he drew from the authorities was that " general fraudulent conduct signifies nothing — that general dishonesty of purpose signifies nothing — that attempts to overreach go for nothing — that an intention and design to deceive may go for nothing ; — unless all this dishonesty of purpose, all this fraud, all this intention and design can be connected with the particular transaction, and not only connected with the particular transaction but must be made to be the very ground upon which this transaction took place, and must have given rise to this contract. If a mere general intention to overreach were enough, I hardly know a contract, even between persons of very strict morality, that could stand. [See the remarks of Lord Thurlow in the familiar case of Fox v. Mackreth, 2 Bro. Ch. 420, and of Lord Eldon in Turner v. Har- vey, 1 Jac. Ch. 178; Pothier de Vente, n. 295, 334.J We generally find the case to be that there has been an attempt of the one party to overreach the other, and of the other to overreach the first, but that does not make void the contract. It must be shown that the attempt was made, and made with success, cum fructu. The party must not only have been minded to overreach, but he must actually have overreached. He must not only have given instructions to the agent to de- ceive, but the agent must, in the fulfilment of his directions, have made a repre- sentation ; and, moreover, the representation so made must have had the effect of deceiving the purchaser ; and, moreover, the purchaser must have trusted to that representation and not to his own acumen, not to his own perspicuity, and not to inquiries of his own. I will not say that the two might not be mixed up together, — the false 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 fully borne out by decisions on this side of the Atlantic. Thus in Donelson v. Weakley, 8 Yerg. (Tenn.) 178, it was held that mere state- ments by the seller of what the property would thereafter be worth afforded no ground for rescission, it being no part of the contract, and the matter being one TO DETAIN PURCHASE-MONET, ETC. 575 Although the decision in this case in the conrt below was reversed,^ yet, as has been said, there was little or no difference of opinion fully within the purchaser's own calculation ; and the law was held the same way in Strong v. Peters, 2 Root (Conn.), 93 ; Bell v. Henderson, 6 How. (Miss.) 311 ; Tindall v. Harkinson, 19 Ga. 448. So of vague general representations as to matters open to the examination of all; Davis v. Sims, Hill & Denio (N. Y.), 234; Anderson v. Burnett, 5 How. (Miss.) 165; Bell v. Henderson, supra; An- derson w. Hill, 12 Sm. & Marsh. (Miss.) 683; Foley v. Cowgill, 5 Blaekf. (Ind.) 18 (see Dart on Vendors, 90, 4th ed.). It is, in fact, no more than the applica- tion of the maxim simplex commendatio non ohligat; Taylor v. Fleet, 4 Barb. S. C. (N. Y.) 95. It is obvious, however, that the maxim must meet with a strict construction where the land which is the subject of the purchase is at a distance, and the pur- chaser relies wholly upon its description as given by the vendor ; Bean v. Herrick, 12 Me. 262 ; Smith v. Richards, 13 Pet. (U. S.) 26 ; Sandford «. Handy, 23 Wend. (N. Y.) 260; Van Epps ». Harrison, 5 Hill (N. Y.), 63; Babcock v. Case, 11 P. F. Smith (Pa.), 430 ; see Clarke u. Baird, 7 Barb. S. C. (N. Y.) 66, where it was held that if the purchaser had the opportunity 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, and a similar de- cision was made in the recent case of Brooks v. Hamilton, 15 Minn. 26. ' Lord Lyndhurst defended the opinion which he had delivered in the Ex- chequer, which, according to Lord Campbell, had been "by all accounts the most wonderful judgment ever heard in Westminster Hall. It was entirely oral, and without even referring to any notes he employed a whole day in stating com- plicated facts, in entering into complex calculations, and in correcting the misrep- resentations of counsel on both sides. Never once did he falter or hesitate, and never once was he mistaken in a name, a figure or a date ; " Campbell's Lives of the Chancellors, vol. viii. p. 73. The defence of this opinion in the House of Lords was, according to the same authority, by " a speech which again astounded all who heard it by the unexampled power of memory and lucidness of arrangement by which it was distinguished." Sugden has more mildly termed it " a graceful and eloquent speech ; " Law of Property. Lord Lyndhurst considered the law to be clearly settled that where representations are made with respect to the nature and character of the property which is to become the subject of purchase affect- ing the value of that property, and those representations afterwards turn out to be incorrect and false to the knowledge of the party making them, a foundation is laid for maintaining an action in a court of common law to recover damages for the deceit so practised, and in a court of equity a foundation is laid for setting aside the contract which was founded upon a fraudulent basis. " I do not under- stand that that proposition is disputed by either of my noble and learned friends ; it was distinctly laid down and decided in the case referred to in the judgment below, and which has been referred to at your lordship's bar ; I mean Dobell v. Stevens, 3 Barn. & Cress. 623. That was one of those ordinary cases which frequently come before the courts of common law. It was a case of the purchase of a public house ; a false representation — false to the knowledge of the party making it — was made by the vendor with respect to the extent of the custom as 576 THE purchaser's right at law as to the law which should govern it, and Sugden has remarked,^ that to the rule of law, as thus qualified and explained, no ezcep- to the quantity of beer that was drawn during a certain period. The books were in the house ; it was part of the case that the purchaser might have had access to them if he thought proper ; but notwithstanding that circumstance, it being proved that the representation was false, the Court of King's Bench were of opinion that an action of damages might under such circumstances be sustained." This case, however, was much more distinguishable from Attwood v. Small than Lord Lyndhurst seemed to suppose, as the vendor made a definite statement which was intended to prevent the purchaser from making investigations which would have shown that statement to be false, and Dobell v. Stevens is fully sup- ported by American authority; Hunt v. Moore, 2 Barr (Pa.), 107 ; Napier v. Elam, 6 Yerg. (Tenn.) 108 ; Campbell v. Whittingham, 5 J. J. Marsh. (Ky.) 96 ; Parham v. Randolph, 4 How. (Miss.) 451 ; Burwell v. Jackson, 5 Seld. (N. Y.) 545 ; see, however, and consider Griffith u. Kempshall, Clark's Ch. (N. Y.) R. 671 ; Tallman v. Green, 3 Sandf. S. C. (N. Y.) 437 ; and Ward j.. Packard, 18 Cal. 391. The distinction between the allegatio falsi and the suppressio veri would seem to be that the non-disclosure, in order to constitute fraud, must be of facts which the seller was under an obligation to disclose. "I make no distinction," said Bayley, J., in Early v. Garret, 9 Barn. & Cress. 928, " between an active and a passive communication, for a fraudulent concealment is as bad as a wilful mis- representation. A fraudulent concealment by the seller of a fact which he ought to communicate would undoubtedly vitiate the sale ; " see also Pearson v. Morgan, 2 Bro. Ch. 390. So it is said by Story, that "the true definition of undue concealment which amounts to a fraud in the sense of a court of equity and from which it will grant relief, is the non-disclosure of those facts and circumstances which one party is under some legal or equitable obligation to communicate to the other ; " 1 Story's Eq. § 207 ; Young v. Bumpass, 1 Freem. Ch. (Miss.) 241 ; The State v. HoUoway, 8 Blackf (Ind.) 47 ; Salstonstall v. Gordon, 33 Ala. 151. The question, however, of what the vendor ought to inform the purchaser, and what he is under no such obligation to do, will sometimes be a difficult one, and as was well said in Bean v. Herrick, 12 Me. 262, " the maxim caveat emptor is a sufficient answer to mere silence in regard to defects open to observation, but the line which separates cases where this maxim applies from others which call for relief is not defined with precision ; each case rests upon its peculiar circum- stances." The question will often depend much upon the basis of dealing between the parties. " The court, in many cases," said Lord Eldon in Turner v. Harvey, Jacob, 178, " has been in the habit of saying that where parties deal for an estate they may put each other at arm's length, and where incumbrances are matter of record or are patent, and the purchaser views for himself, it is apprehended that equity will not rescind on the ground of mere silence on the part of the vendor." This distinction between the allegatio and the suppressio was observed in Rich- Sugden's Law of Property, 598. TO DETAIN PURCHASE-MONEY, ETC. 577 tion can be taken, and adds with great propriety, " there is no part of the jurisdiction of a court of equity which requires to be exe- cuted with more caution than that of rescinding a contract. This we shall see powerfully exemplified in this very case of Small v. Att- wood. If there be fraud, the remedy is clear of difficulty. But the court ought to be quite sure of the grounds upon which it decides, for by rescinding the contract it may do irreparable damage to one party, whilst by refusing to interfere, it does not deprive the other party of his remedy by an action of deceit if he really have been deceived." ^ ardson v. Boright, 9 Vt. 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, it was no fraud — he was not bound to inform him. See also GrifSth v. Kempshall, 1 Clark's Ch. (N. Y.) 576 ; Ward v. Packard, 18 Cal. 391. Of course, however, this rule will be much relaxed or entirely lose its appli- cation where any such confidential relation exists between the vendor and pur- chaser as to put them upon unequal terms ; Briee v. Brice, 5 Barb. (N. Y.) 540 ; Babcock v. Case, 11 P. F. Smith (Pa.), 430; notes to Fox v. Mackreth, 1 Lead. Cas. in Eq. The converse of the position stated above is equally true, for, as was said by Lord Eldon in the case just cited, in referring to the remarks of Lord Thurlow in Fox V. Mackreth, 2 Bro. Ch. 420, " If an estate is offered for sale, and I treat for it, knowing that there is a mine under it, and the other party makes no inquiry, I am not bound to give him anyinformation of it. [Harris u. Tyson, 12 Harris, (Pa.) 360. J He acts for himself and exercises his own senses and knowledge. But a very little' is sufficient to affect the application of the principle. If a single word is dropped which tends to mislead the vendor, that principle will not be allowed to operate ; " and, in general, it may be said that any course of dealing calculated to create a false impression on the purchaser will amount to a fraud ; Misner v. Granger, 4 Gilm. (111.) 69 ; Young v. Bumpass, 1 Freem. Ch. (Miss.) 241; Bean v. Herrick, 12 Me. 262; Early v. Garrett, 9 Barn. & Cress. 928, as where the seller should state facts which were true in themselves, but so expressed as to give the idea that they conveyed the whole trust, while a material fact is kept back ; Allen v. Addington, 7 Wend. (N. Y.) 10, s. c. 11 id. 375 ; Kidney v. Stod- dard, 7 Met. (Mass.) 252. ' After an able condensation and review of the facts in the case, Sugden con- tinues : " I thought at one time, from its complicated facts, that it could hardly perhaps be cited as an authority for any thing beyond the general principle ; but I felt bound to put the reader in possession of a general view of the case, and my present calm review of it has satisfied me that it is a precedent of much impor- tance. It affords an excellent commentary on the rule of law, and exemplifies the process by which we are to arrive at a just conclusion. The opposite views taken of the particular evidence is not important, but the principles by which the House of Lords were guided are indeed important. Previously to this case, the 37 578 THE purchaser's right at law In a subsequent case,^ the plaintiffs having filed a bill to compel payment of a residue of the purchase-money due on a lease of mines, which the defendants had entered upon and worked for three years, the defendants filed a cross-bill for relief on the ground of misrepresentation and fraud, which was dismissed in the Irish Chancery, and upon appeal taken to the House of Lords the decree was affirmed, the Chancellor observing, that in a case depending upon alleged misrepresentations as to the nature and value of the thing purchased, the defendant could not adduce more conclusive evidence or raise a more effectual bar to the plaintiff's case than by showing that the plaintiff was, from the beginning, cognizant of all the matters complained of, or, after full information concerning them, continued to deal with the property, and even to exhaust it in the enjoyment, as by working mines.^ instances were rare in which a purchaser, on the ground of misrepresentations prior to a written contract whicii was silent on that head, and after inquiry, and with means of knowledge and possession, had applied to a court of equity to re- scind the contract. 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 would have been made. But the decision of the lords placed the doctrine on the right foundation. Fraud is a sufficient ground for relief, but it is not to be made out from ambiguous papers where the parties investigated the books and accounts and inquired for themselves, and with possession and full means of knowledge, delayed for some months to apply for relief. Indeed, it is manifest that the same conclusion would have been arrived at if the application had been made at an earlier period. The danger of resting upon such evidence as was produced in this case to impeach the written contract is proved by the opposite views of the very learned persons who gave judicial opinions upon the force and effect of it ; but the lords in effect decided that where there are ample means of forming a judgment from written papers and correspondence, much credit is not to be attached to alleged conversations and exclamations, particularly if tbey are not distinctly charged in the bill, so as to enable the other party to meet them." In tbe last edition of the learned author's work on Vendors, he remarked that "it was not too much to expect that if, in a contract of such magnitude, in which of course there was previous inquiry, the purchasers bought on the representation of tbe seller as to the cost of producing pig iron, they should have required him to bind himself by the con- tract to those representations, and to agree to reduce the purchase-money if they proved to be incorrect. Such a simple precaution would have prevented the vast litigation in that case ; but it is clear that if such a demand had been made, it would not have been acceded to, and that if it had been refused the purchasers would have executed the contract without it." ' yigers V. Pike, 2 Drury & Walsh, 1 ; 8 CI. & Finn. 562. •° Colby V. Gadsden, 3i BeaT. 416, is to the same effect, and see accord. Pin- TO DETAIN PURCHASE-MONEY, ETC. 579 In a later case,^ the question was whether a purchaser was enti- tled to rescind an executed contract because of the omission to mention the existence of a right of way over part of tlie grounds in front of the house, though no charge of personal fraud was made against the defendant, nor was there any evidence that she Icnew of tlie deed creating the right of way, or of the payments of the rent for the same, except that they appeared in the accounts ren- dered to her by her agent.^ The Vice-Chancellor decreed that the sale should be rescinded with costs, being of opinion that the con- tract and its completion took place under concealment from the purchaser, and substantially under misrepresentation to him of material facts within the knowledge of the defendant or her agent, whose knowledge for the present purpose was to be held equivalent to her knowledge, but not within the knowledge of the plaintiff, he being without the means of knowing the true state of these facts. This decree, however, was reversed in the House of Lords,^ prin- cipally, it was said, on the ground that the doctrine of constructive notice to the defendant, from the knowledge of her solicitor, could not be applied to the case. " The effect of constructive notice," tard V. Martin, 1 Sm. & Marsh. Ch. (Miss.) 126 ; 1 Story's Eq. § 203 a ; Cun- ningham V. Fithian, 2 Gilm. (111.) 650; Masson v. Bovet, 1 Denio (N. Y.), 69; Tindall v. Harkinson, 19 Ga. 448 ; Glasscock v. Minor, 11 Mo. 655 ; Lockridge V. Foster, 4 Scam. (111.) 570. Length of time, however, will of course be no element to bar the plaintiff from relief if he has acted promptly upon the dis- covery of the fraud; McLean v. Barton, Harr. Ch. (Del.) 379; Concord Bank V. Gregg, 14 N. H. 331. In the much litigated case in New York of Whitney v. Allaire, 4 Denio, 554, 1 Comst. 310, it was held that although the purchaser would not be suffered to rescind the contract, if after the discovery of fraudu- lent representations as to its territorial extent he had gone on to affirm it, yet that such affirmance of the contract only made it binding as such, and did not destroy the right to recover damages for the tort as a distinct and separate transaction, " and it is obviously just that the vendee should be able to insist on the performance of a contract which may be essential to his interests without waiving his right of compensation to the full extent to which he has been led to make a worse bargain by the misrepresentations of the vendor ; " notes to Chan- delor V. Lopus, 1 Smith's Lead. Cas. ' Gibson V. D'Este, 2 Younge & Coll. (N. S.) 542 ; on appeal to the House of Lords, 1 CI. & Finn. (N. S.) 605; nom. Wilde v. Gibson. ' It should be observed that these payments did not so specifically appear in the accounts as to convey definite information to the owner as to the ground of their payment. ' Wilde V. Gibson, 1 CI. & Finn. (N. S.) 605. 580 THE purchaser's right at law said Lord Cottenham, in delivering his judgment, " in cases where it is applicable, as in contests between equities of innocent parties, is sufficiently severe, and is only resorted to from the necessity of finding some ground for giving preference between equities other- wise equal ; but this is the first time I ever knew it applied in sup- port of an imputation of direct personal fraud and misrepresentation. The two things cannot exist together — there can be no direct per- sonal fraud without intention, and there can be no intention with- out knowledge of tlie fact concealed or misrepresented ; and if there be knowledge, the case of constructive notice cannot arise ; it would be absorbed in the proof of knowledge." ^ With this opinion Lord Brougham entirely concurred, and Lord Campbell thought it was necessary to observe strictly the difference between the rules which apply to a contract still executory, and one actually exe- cuted. " If there be in any way whatever," said he, " misrepresen- tation or concealment, which is material to the purchaser, a court of equity will not compel him to complete the purchase ; but where the conveyance has been executed, I apprehend that a court of equity will set aside the conveyance only on the ground of actual fraud. And there would be no safety for the transactions of mankind, if upon a discovery being made at any distance of time, of a material fact not disclosed to the purchaser, of which the vendor had merely constructive notice, a conveyance which had been executed could be set aside." He entirely dissented from the position that an ac- tion of deceit could be maintained without positive fraud, and said that there was no evidence that the solicitor of the vendor received any knowledge of the deed in the course of his agency. " The knowledge, then, amounts to nothing. He had no knowledge which ' Lord Cottenham further said that the decree could not be supported on the authority of Edwards v. McLeay (supra, p. 569), " for in that case there was knowledge in the vendor and a false representation, both of which are wanting in the present case. A case much more in point is that of Legge v. Croker, 1 Ball & Beat. 506, in which the lessor had 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 before. It turned out that there was a foot-way, the presentment applying only to a carriage-way, and the lessee was convicted for obstructing it, whereupon he filed his bill to be re- lieved from the lease ; but Lord Manners dismissed his bill, saying, ' If there 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 misrepresentation.' That was a much stronger case against the lessor than the present is against the vendor." TO DETAIN PURCHASE-MONET, ETC. 581 would show that he was guilty of a fraudulent misrepresentation." But this decision seems to have been very generally disapproved by the profession. ^ 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 cove- nants for title which it contains,^ and hence the question arises, how far the purchaser is, either at law or in equity, allowed to detain the unpaid purchase-money, or recover it back, if already paid, where there is a defect or incumbrance which is covered by the covenants for title which he has received ; in other words, as, in the absence of covenants, the purchaser can have no relief as to the purchase-money, how far the presence of covenants entitles him to relief.^ ' The strictures of Sugden (Law of Property, 637) upon the reversal of the decree of the Vice-Chancellor are very severe, and in the course of them he says : " It is also worthy of notice, and seems to have escaped all attention, that the defendant covenanted that notwithstanding any act done by herself or her mother, the former owner, she was seised of (all and singular the lands, hereditaments, mansion-house and premises conveyed, of a perfect and- indefeasible estate of inheritance in fee-simple in possession, without any manner of condition, qualifi- cation, restriction, matter or thing whatsoever, expressed or implied, and which could revoke, determine, abridge, qualify, alter, charge, incumber or prejudicially affect the same in any manner aforesaid), with the other usual covenants following. Now, can a more distinct representation of a seisin in fee, not controlled by any deed executed by the mother of the vendor, be framed ? " But it is probable that instead of this fact having escaped the attention of the able counsel in this carefully argued case, it was not deemed a proper subject of attention, as cove- nants for title are not representations, in the sense in which that word is used in this connection. Dart fully shares Sugden's general disapprobation of the decision in the Lords (Vendors, 734), and Kerr says of it, " Though it was the decision of the highest tribunal, it cannot be said to be founded on sound princi- ples ; " Kerr on Fraud, 15. The foregoing eases in the House of Lords have been referred to at some length, both on account of their intrinsic importance as decisions in the court of last resort in England, and because they show, as conveniently as any other class of cases, the principles by which the rescission of executed contracts are to be governed in oases of concealment or misrepresentation. It will have been per- ceived that the difficulty of the cases consists not so much in the principles them- selves as in their application. ' Supra, p. 667. , ' It may be here permitted to recall the 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 582 THE puechasbr's eight at law The cases will naturally be found more numerous in this country than in England. The almost universal practice there of limiting the covenants for title to the acts of the vendor ^ of course confines such questions between fewer parties, than where, as in parts of this country, it is the practice to receive general covenants for the title. ^ Where the covenants are general, the whole previous ques- tion of title is thrown open, the vendor covenants that he is seised of an indefeasible estate — that it is free from all incumbrance — or that he will warrant and defend it to the purchaser against all persons whomsoever. Hence any defect or incumbrance, no mat- ter by whom caused, or how far back in the cliain 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.^ should be left to their legal remedies ; " Turner v. Harvey, Jacob, 169. And upon the subject of the purchaser's right to equitable relief in detaining the pur- chase-money (as to which, see the next chapter), Chancellor Kent has said, " the law does not seem to be clearly and precisely settled, and it is difficult to rec- oncile the cases or make the law harmonize on this vexatious question ; " 2 Kent's Com. 471. A very recent author has taken an even gloomier view of the subject: " Upon no branch of the jurisdiction of equity by injunction, save that of restraint of taxation, are the authorities more divergent and irreconcil- able than in cases where the relief has been invoked to restrain the collection of unpaid purchase-money of real estate. . . In the unsettled state of the author- ities, it is exceedingly difficult, if not impossible, by any process of generaliza- tion, to deduce from the decided cases principles of general application which shall serve as rules for the guidance of courts and practitioners. The most thal^can be attempted is to group together the adjudications both for and against the exercise of the jurisdiction, together with the reasoning upon which the decisions are based ; " High on Injunctions, § 278. But all this is saying no more than that in equity a precedent is regarded as of less binding authority than at common law, as each case is decided, in a greater or less degree, upon its particular facts, see infra, Ch. XV. '- Or his ancestor, or the last person claiming by purchase in the popular sense ; svpra, p. 32. 2 Supra, p. 38. ^ The cases in the English books as to payment of the purchase-money depend almost entirely on questions which arise before the execution of the deed, and usually arise on a bill for specific performance (as to which see Dart on Vendors, c. 18, and note to Seton v. Slade, 2 Lead. Cas. in Eq.), and ques- tions arising after its consummation are much more restricted than in American cases ; for in England, where the covenants are limited to the acts of the vendor, he is apt to be aware of any defects or incumbrances of his own creation, and hence the questions often turn, as has been just seen, upon the point of knowledge and TO DETAIN PURCHASE-MONEY, ETC. 583 Before considering particularly the cases which allow a pur- chaser to detain his purchase-money by reason of defects or incum- brances, it may be proper briefly to advert to the principles on which such a riglit is based. It is familiar that the system of the common law did not recog- nize the propriety of settling cross-demands in the same suit. The object of each action was to determine the rights of the plaintiff as to the particular subject of his demand, without regard to any claim which the defendant might have growing out of the transaction. Courts of chancery had, however, from at least the time of Lord Macclesfield, exercised what they called this " natural equity," ^ which was familiar to the civil law by the term " compensation," ^ and although it was once supposed that until the passage of the statute of bankruptcy the right to a set-off was never recognized in a court of law, yet it has been clearly shown,^ and is now everywhere ad- mitted, that the practice existed long before any statutory provision on the subject.* Of course with the passage of the statutes of bank- ruptcy,^ and somewhat later, of the statute of set-off,^ the jurisdic- tion became familiar. It was, however, some time before the spirit which led to these statutes infused itself into cases which did not come witliin the letter of their enactment. Thus with respect to personal estate, tiie purchaser of a chattel was not allowed, in an action for its price, to set up as a defence, a breach of warranty either as to quality or title, but was forced to pay the amount, and driven to a cross-action by which to establish his own claim." It is not neces- concealment by him, or the neglect of vigilance on the part of the purchaser. But where general covenants are given, and sometimes even regarded as a sub- stitute for examination of the title, many cases must arise where the question of concealment does not arise, as the vendor cannot be aware of every defect which a previous owner may have caused. ' Hawkins v. Freeman, 2 Eq. Cas. Ab. 10, decided five years before the statute of set-off; notes to Rose v. Hart, 2 Smith's Lead. Cas. ; Receivers v. Paterson Gas Co., 3 Zabr. (N. Y.) 283. ^ Story's Eq. Jur. c. 38 ; Freeman v. Lomas, 9 Hare, 109. ' By Mr. Christian, 1 Chr. Bankr. Law. 499. " Anon., 1 Mod. 215 (A.D. 1675) ; Chapman v. Derby, 2 Vern. 117 (1689) ; and see Gibson v. Bell, 1 Bing. N. C. 753 ; notes to Rose v. Hart, supra. ^ i Anne, c. 17 ; 5 Geo. L c. 11 ; 6 Geo. H. c. 80 ; -46 Geo. HI. c. 135 ; 6 Geo. IV. c. 16. • 2 Geo. n. c. 22 ; 8 Geo. II. c. 24. '■ See the cases cited in Basten v. Butter, 7 East, 479 ; and per Lord Ellen- 584 THE puechasbe's bight at law sary here to analyze the train of decisions which have departed from this severity of rule, and finally established the doctrine, both in England and in most parts of this country, that a purchaser may, in a suit brought for the purchase-money of a chattel, take advan- tage of the breach of warranty as a defence, not as a technical set- off, but as evidence of failure of consideration and in mitigation of damages. Such a doctrine was at first totally denied -'— then a dis- tinction was taken, as to its admissibility as a defence, between actions brought to recover the contract price and actions brought on securities given for that price ^ — then the defence was admitted when it went to the whole consideration, but rejected when it touched only a part ^ — until finally the doctrine as stated is well settled.3 It is difficult, however, to say under what precise head such a defence is to be classed. It could not, in strictness, come under the head of set-off, for the purchaser's rights, in general, sound in borough in Farnsworth v. Garrard, 1 Camp. 39 ; Crowninshield u. Robinson, 1 Mason, C. C, U. S., 93; Thornton v. Wynn, 12 Wheat. (U. S.) 188. In Moggridge v. Jones, 3 Camp. 88, and 14 East, 486, Lord EUenborough applied the old rule to a case where the consideration of a bill of exchange was the execution of a lease. The defendant was let into possession, and the plaintiff then refused to execute the lease. It was held that this was no defence to the bill — that the defendant had his remedy upon the agreement. ' Morgan v. Richardson, 1 Camp. 40 ; Tye v. Gwynne, 2 id. 346 ; per Deni- son, J., in Robinson v. Bland, 2 Burr. 1082 ; Mann v. Lent, 10 Barn. & Cress. 877 ; and it would seem that this distinction still exists in the Court of Ex- chequer; Warrick w. Nairn, 10 Exch. 761. ^ Templer v. McLachlan, 5 Bos. & Pull. 136, approved by Shaw ». Arden, 9 Bjng. 287; Day v. Nix, 9 Moore, 159; Pulsifer v. Hotchkiss, 12 Conn. 234; see McAlpin v, Lee, id. 129 ; Reese v. Gordon, 19 Cal. 149. ^ Allen V. Cameron, 3 Tyrw. 907 ; Poulton v. Lattimore, 9 Barn. & Cress. 259 ; Street v. Blay, 2 Barn. & Ad. 456 ; Mondell v. Steel, 8 Mees. & Welsb. 858; Herbert v. Ford, 29 Me. 546; Reed u. Prentiss, 1 N. H. 174; Shepherd v. Temple, 3 id. 458 ; Brittou v. Turner, 6 id. 481 ; Elliott v. Heath, 14 id. 131 ; Dodge u. Tileston, 12 Pick. (Mass.) 328; Harrington v. Stratton, 22 id. 510; Perley v. Balch, 23 id. 284 ; Goodwin v. Morse, 9 Met. (Mass.) 279 ; Dorr v. Fisher, 1 Cush. (Mass.) 272 ; McAllister ». Reab, 4 Wend. (N. Y.) 489 ; a. c. 8 id. 109 ; Batterman v. Pierce, 8 Hill (N. Y.), 171 ; Whitney v. Allaire, 4 Denio (N. y.), 557 ; s. c. 1 Comst. 306 ; Steigleman v. Jeffries, 1 Serg. & Rawle (Pa.), 478; Patterson v. Hulings, 10 Barr (Pa.), 507; Peden v. Moore, 1 Stew. & Port. (Ala.), 71; Robinson v. Wilson, 19 Ga. 507; Mercer v. Hall, 2 Tex. 284;- Desha u. Robinson, 17 Ark. 244; Brandt v. Foster, 5 Clarke (Iowa), 291; Withers v. Greene, 9 How. (U. S.) 214 ; Van Buren v. Digges, 11 id. 461, over- ruling Thornton v. Wynn, 12 Wheat. 188. ETC. 585 unliquidated damages, which do not come within the scope of the statutes of set-off. It has been admitted, moreover, in cases where failure of consideration was not in point,^ and in England, it has lately been held that such a defence is not by way of a cross-action^ but by showing how much less the subject-matter of the contract was worth, by reason of the breach of the warranty,^ while in New York it has received the name of recoupment.^ But by whatever technical term such a defence may be called — whether it be compensation, set-off, failure of consideration or re- coupment — the principle on which it is based is the same as that which led to the statutes of set-off, viz., that of preventing circuity of action ; and to whatever extent the common-law rules of pleading may have rejected defences which involved more than one issue, it has been found, in modern times, less inconvenient to de- termine, in the same action, as well tlie rights of the defendant as those of the plaintiff, than to oppress courts and parties with different suits springing from the same subject-matter. In considering the rights of the purchaser at law, it may also be remarked that according to the rules of the common law, if the purchase-money of real estate were secured by a bond or any other sealed instrument, no defence whatever could, in the absence of ille- gality of consideration,* be admitted to its payment, even where the title to the land had utterly failed and the purchaser been evicted from its possession. There could be no defence on the ground of failure of consideration, for the seal imported a consideration which the purchaser was estopped from gainsaying ; ^ and hence the purchaser's only remedy was by recourse to equity. But in some of the United States, the common-law rule as to specialties has been relaxed by statutory provisions, so far as to entitle the ' Ives V. Van Epps, 22 Wend. (N. Y.) 155. 2 Mondel v. Steel, 8 Mees. & Welsh. 858. ' The subject here so briefly and incidentally touched upon will be found fully and ably considered in the American notes to the cases of Chandelor v. Lopus and Cutter v. Powell, 1 and 2 Smith's Lead. Cas., and in a chapter on Recoup- ment, in Sedgwick on Damages ; see also 2 Kent's Com. 470, &o. ; Withers u. Green, 9 How. (U. S.) 214 ; Wheat i>. Dotson, 7 Eng. (Ark.) 699, and 7 Amer. Law Review, 389. " Fraud would be no defence, unless the fraud related to the execution of the instrument ; Rogers u. Colt, 1 Zabr. (N. J.) 704 ; see infra ; as to illegality of consideration, see the notes to Collins v. Blantern, 1 Smith's Lead. Cas. 5 Collins V. Blantern, 2 Wils. 347 ; Vrooman v. Phelps, 2 Johns. (N. Y.) 178 ; Rogers v. Co\t,'supra. 586 THE purchaser's right at law obligor of a bond, under some restrictions, to show by way of defence its failure, as he formerly could have done its illegality of consideration ; ^ and where such is the case it is of course imma- terial, so far as this question is concerned, whether the purchase- money be secured by a specialty or otherwise. Apart from the form in which the contract is expressed, it would at first sight seem immaterial whether the position of the purchaser be that of a defendant resisting payment of the purchase-money, or that of a plaintiff seeking to recover it back in an action for money had and received ; as there would seem to be no reason on principle, why, if the purchaser have a right to permanently de- tain unpaid purchase-money on the ground of a defect of title, he should be prevented from recovering back that for which he has received no value. But the position of the purchaser of real estate, as a plaintiff, 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 extent upon different principles and machinery from an action which seeks to rescind the contract, and recover back its consideration. Hence it may safely be said that, at law, a purchaser has no right, after the execution of his deed, to recover back his consideration-money on the ground of a defect or failure of title. His remedy in such case is by an action of covenant, and not by an action of assumpsit.^ But when the position of the purchaser is that of a defendant, although " the technical rule remits him back to his covenants in his deed," ^ yet, as has been said, it is now considered that ' Case V. Boughton, 11 Wend. (N. Y.) 107; Wilson v. Baptist Society, 10 Barb. S. C. (N. Y.) 312 ; McKnight v. Kellett, 9 Ga. 534. ^ Toussaint v. Martiimant, 2 Term, 104; Hunt v. Amidon, 4 Hill (K Y.), 345 ; Tillotson v. Grapes, 4 N. H. 448 ; Earle v. De Witt, 6 Allen (Mass.), 526 (see Lee v. Dean, 3 Whart. (Pa.) 329, which is not opposed to these eases). In Miller v. Watson, 5 Cow. (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 failed, but the court held that there having been no eviction of the plaintiff, the promise was without consideration, and that the plaintiff's only remedy was on the covenants in his deed. In Earle ». De Witt, supra, parol evidence to prove such a promise was held inad- missible. And in Moyer v. Shoemaker, 5 Barb. S. C. (N. Y.) 319, it was held that apart from this ground, before an action of assumpsit could be maintained by a purchaser, to recover the consideration paid by him for land sold with cove- nants, he must reconvey the land to the vendor. See supra, p. 282. 5 2 Kent's Com. 473. ETC. 587 he should not be compelled to pay over purchase-money, which he might the next day recover in the shape of damages for a breach of his covenants ; and hence, to prevent circuity of action, the de- fence at law of a failure of title has been in some cases allowed. It is not strange that where there has been no uniform doctrine under which such a defence has been classed, there should Iiave been some discrepancy in the various cases as to the grounds of their decision. As the authorities generally seem to treat the question in a court of law as one arising from failure of consider- ation, it becomes necessary to inquire what the consideration for the purchase-money of real estate really is. Altliough the mere re- ceipt of the deed, containing certain covenants for the title, does not, unless in peculiar cases, of itself form a consideration,^ yet, as has ^ In the early case in Maine of Lloyd v. Jewell, 1 Greenl. 352, it was said that the Supreme Court of Massachusetts had for a long series of years pro- ceeded upon the principle that the covenants in a, deed were a valuable considera- tion for a note given for the purchase-money (and such seems to have been thought in Gridley v. Tucker, 1 Freem. Ch. (Miss.) 211), and that the want or failure of title would be no legal defence ; and acting upon this supposed train of decision, which it was said laid down the true principle of law, it was held that the defendant, having received such covenants, had no defence to the pay- ment of his note. It was further said that whatever claim the defendant might have was upon his covenants, and that to allow him in that action of assumpsit thus to defend would be to give him a greater right as defendant than he could have as plaintiff; and also that a difficulty might arise in the way of such a de- fence from the measure of damages, which in that State were fixed, on a cove- nant of warranty, by the value of the land at the time of eviction, which might be much greater or less than the purchase-money; and lastly, that if such a de- fence were allowed in that action, not only would there be nothing on the record to prevent the recovery of damages upon the covenant for the very defects for which an allowance had thus been made, but nothing on which the payee of the note could found an action against his own warrantor. It has, however, been since denied in Massachusetts that any such course of decision as that referred to by the court in Lloyd v. Jewell ever prevailed in that State. Fowler v. Shearer, 7 Mass. 19, and Phelps v. Decker, 10 id. 279, merely contained loose dicta, and the doctrine that the covenants in a deed formed such a consideration as to preclude question as to the title is opposed to principle and ' authority ; Knapp v. Lee, 3 Pick. (Mass.) 459; Rice v. Goddard, 14 id. 293 ; Trask v. Vinson, 20 id. 110 ; Tillotson v. Grapes, 4 N. H. 448 ; Cook V. Mix, 11 Conn. 432 ; Deal v. Dodge, 26 111. 458. As to the other grounds suggested in Lloyd v. Jewell, it may be observed that the objection as to the measure of damages cannot apply, since it is as competent to assess the damages by the same standard in that action as in one in which the vendee is the plaintiff; Tillotson v. Grapes, 4 N. H. 448. The 588 THE purchaser's eight at law been mentioned, the absence or presence of these covenants or of some of them, has a very material bearing upon the question. Thus, where the deed contains no covenants, the purchaser is wholly without remedy ; for the consideration was the mere trans- fer to him of the estate of the vendor, who was to be in no way responsible for the title, and when the deed is delivered to the pur- chaser, he has received the entire consideration for which he bar- gained, entirely irrespective of any future events, and the question of good or bad title is irrelative. ^ Where the covenants are limited to the acts of the vendor, the consideration would seem to be the present transfer of his estate, in the same condition as that in which he himself received it, and the future performance by himself and his heirs, when necessary, of the undertaking that the purchaser and those claiming under him shall not suffer from any of his or their acts.^ The consideration is thus twofold : one which moves from the vendor at the time of the execution of the deed, and the other, which is executory, or, as it may be called, a continuing objection on the ground of there being nothing to prevent the defendant, after having received a reduction of damages by reason of the defect, from suing upon the covenants and thus obtaining a double compensation, would equally apply to every other case of set-off, especially where its subject was not embodied in a special plea, but, as is usual in American practice (and as was also not un- frequent in England before the new rules), contained in a notice and given in evidence under the general issue. It is obvious, as was said in Tallmadge v. Wallis, 25 Wend. (N. Y.) 116, that the effect of setting up such a defence would operate as an estoppel to the purchaser, if he should attempt to bring an action for a breach of warranty, after he had been once satisfied for his damages ; or if the jury found a verdict which, in terms, or by necessary implication, negatived the existence of the facts set up in this plea. The later cases in Maine do not support the reasoning adopted in Lloyd v. Jewell, but treat the case as having decided merely that a partial failure of consideration was no defence to an action on the contract price; Wentworth v. Goodwin, 21 Me. 154; Jenness v. Parker, 24 id. 294; Herbert v. Ford, 29 id. 554; and in the last of these cases the ten- dency of modern decisions to allow a broader latitude of defence for the purpose of avoiding circuity of action, was recognized with approbation, although with respect to real estate it was said to be the settled law of the State that a partial failure alone of title to land conveyed constituted no defence to a note given in payment of it; Morrison v. Jewell, 34 Me. 146; Thompson v. Mansfield, 43, 490. ' Supra, p. 567. ' The analogy between the sale of real estate with covenants and the sale of chattels with warranty, has already been noticed, and Lord Tenterden, in Street V. Blay, 2 Barn. & Ad. 456, said that the plaintiff's compliance with his warranty was part of the consideration for the contract price. TO DETAIN PURCHASE-MONET, ETC. 589 consideration. Where a defect has been caused by any one in the chain of title prior to the vendor, this can form no defence to the purchaser from payment of the purchase-money, for tlie considera- tion between himself and his vendor is not affected.^ Where the covenants are unlimited or general, the consideration seems to be the present transfer of the vendor's estate, and the future perform- ance by himself and his heirs, when necessary, of the undei-taking that the purchaser and those claiming under him shall not suffer from any of his or their acts, or from the acts of any one prior to him in the chain of title. Thus it may be possible for any defect or incumbrance whatever, whether caused by the vendor or his pre- decessors, to touch the consideration between himself and the purchaser. Hence 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 deter- mining whether there has or has not been an eviction, within the true meaning of the term.^ If there has, the purchaser would be at that time entitled to recover damages upon these covenants, and circuity of action is clearly prevented by permitting him, when sued for the purchase-money, to call upon the plaintiff to perform his covenant in that action ; in other words, by allowing the former to defend himself to the extent of the measure of damages ; or, if the opportunity to do so has not been presented in a court of law, he can have recourse to equity, which, in tlie 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 pm-chase-money, either temporarily or permanently, by awarding issues of quantum damnificatus, and by such other means and under such equitable conditions, &c., as the exigencies of the case may require.^ If, however, there has been no such eviction as would entitle the purchaser at that time to damages, it is apprehended that where the covenants of warranty or for quiet enjoyment are the only ones in the deed, no such defence can be permitted at law, and no ground exists on which to found an equitable jurisdiction. ' Starkey v. Neese, 30 Ind. 224. ^ Supra, p. 144, ' See generally as to the modes of administering relief; Morgan v. Smith, 11 111. 201 ; and infra, Ch. XV. 590 THE purchaser's right at law Where the deed contains a covenant for seisin, cases of difficulty may often arise, except in those States in whicli this covenant is held to be fully satisfied by the transfer to the purchaser of a present possession. ^ It has been said in a former chapter, that in suing upon this covenant, cases may occur in which, although the purchaser may have paid nothing to buy in the paramount title, and may still be in possession, yet the failure of title is so complete as to authorize the assessment of the damages by the consideration- money or a proportionate part of it, and that in such cases it might be proper and even necessary for the plaintiff to offer to re-convey the interest or title actually vested in him, and that although it would be no bar to his recovery tliat he had not done so, yet that the court might stay the execution, or reserve the actual entry of the judgment till such conveyance were made.^ It is difficult to say how far this doctrine can b? made to apply to actions where the defendant seeks to detain purchase-money under similar circum- stances. On the one hand, there are reasons 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 in- solvency, to which the purchaser may be put by turning him round to his action on the covenant. On the otlier, the temptation offered to purchasers, when pressed for the contract price, to ferret out defects in the title of their vendor, is such as may induce a leaning in favor of the rule that unless there has been a lona fide eviction, actual or constructive, the parties must be left to pursue the remedies which tliey originally provided for themselves. It is hoped that these introductory remarks may to some ex- tent simplify the arrangement of the numerous cases upon this branch of law, which seems a perplexed and intricate one, rather from the fact that the grounds of the decisions have not always been referred to tlie same principles, than from any difficulty as to the principles themselves. It is proposed to consider here, the rights of the purchaser as they have been enforced in courts of law, and, in the subsequent chapter, in courts of equity. The earliest prominent casein this country, as to the purchaser's ' See supra, p. 56 et seq. ^ Supra, p. 281. 591 right ill a court of law to detain the purchase-money of real estate by reason of a defect of title, was Frisbee v. Hoffnagle,^ decided in New York in 1814, wliere in 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 been sold under a judgment against the plaintiff, and a sheriff's deed made to the purchaser, and although it was also in evidence that the defendant had not been evicted or disturbed in his possession, tlie court ordered a nonsuit. On a motion for a new trial, the case was submitted without argument, and in refusing the new trial, it was held, per curiam, " The consideration for the note has entirely failed, for the defendant has no title, it having been extinguished by the sale under the judgment. Here is a total, not a partial, failure of consideration ; for although the defendant has not yet been evicted by the purchaser under the sheriff's sale, he is liable to be so, and will be responsible for the mesne profits.^ To allow a re- covery in this case would lead to a circuity of action ; for the defendant, on this failure of title, would be entitled' immediately to recover back the money. The motion to set aside the nonsuit must therefore be denied." The objection to the soundness of this decision (which has since been repeatedly overruled)^ is, that as the only covenant was that of warranty, there had been no eviction whatever, either actual or ' 11 Johns. 50. ^ Citing Morgan v. Richardson, 1 Camp. 40, note ; Tye u. Gwynne, 2 id. 346 ; Barber «. Backus, Peake, 61 ; Phoenix Ins. Co. v. Fiquet, 7 Johns. (N.Y.) 383 ; but these cases can hardly be said to be authority for the length to which this decision goes; see Lamerson u. Marvin, 8 Barb. (N. Y.) 9, infra. 3 Vibbard v. Johnson, 19 Johns. 77 ; Lattin v. Vail, 17 Wend. (IST. Y.) 188 ; Whitney v. Lewis, 21 id. 131 ; Tallmadge u. Wallis, 25 id. 116 ; Batterman v. Pierce, 3 Hill (N. Y.), 171; 2 Kent's Com. 472; Lamerson u. Marvin, 8 Barb. S. C. (N. Y.) 14. "Few cases," said Sharkey, C. J., in Hoy v. Taliferro, 8 Sm. & Marsh. (Miss.) 739, " have been more frequently referred to, and but few have been less regarded than the case of Frisbee v. HofFnagle." It was how- ever approvingly referred to in James v. Lawrencebuvg Ins. Co., 6 Blackf. (Ind.) 525 (though the decision itself was based upon another ground) , and in Cook D. Mix, 11 Conn. 438, which decided that the fact of the deed to the defendant being void, by reason of being made by administrators who had no power of sale, was a sufficient defence without more (see accord, in equity. Woods V. North, 6 Humph. (Tenn.) 309 ; cited and commented on, infra, Ch. XV.), though the decision seems to have been directed principally to con- troverting the doctrine in Lloyd v. Jewell, supra, p. 587, that the covenants themselves were a sufficient consideration. 592 THE purchaser's right at law constructive, so as to give to the purchaser a right at that time to call upon the vendor to perforna the covenant, and so prevent cir- cuity of action. Hence the consideration was not touched. In Greenleaf v. Cook,i decided in the Supreme Court of the United States, in 1817, the defence to a note given for the pur- chase-money of land, of the failure of its title, 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,2 it is possible that the absence of covenants was referred to. There was a prior mortgage on the premises, under which a decree of foreclosure had been pronounced, but the possession had never been disturbed. " It has been argued," said Marshall, C. J., who delivered the opinion of the court, " that there is a failure of con- sideration which constitutes a good defence in this action. With- out deciding vehether, after receiving a deed, the defendant could avail himself of even a total failure of consideration, the court is of opinion, that to make it a good defence in any case, the failure must be total. The prior mortgage of the premises, and the decree of foreclosure, do not produce a total failure of consideration. The eq\iity of redemption may be worth something, the court cannot say how much ; nor is the inquiry a proper one in a court of law, in an action on the note. If the defendant be entitled to any relief, it is not in this action." It may be observed of this case (which upon its facts was most correctly decided ^) that at that time the law was far from being settled as to the right of the purchaser thus to defend himself,* ' 2 Wheat. 13. ^ " It has also been said that the deed is defective. If it be, the defendant may require a proper deed ; and it is not impossible but there may be circum- stances which would induce a court of equity to enjoin the judgment until a proper deed be made. But the objection to the deed cannot be examined in this action.'' ^ Hassam v. Dompier, 2 Wms. (Vt.) 32, is to the same effect. * Thus ten years after the decision in Greenleaf v. Cook, it was held by the same tribunal, in Thornton v. Wynn, 12 Wheat. 183, that a breach of warranty of a chattel was no defence to payment of its price if the sale 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 Withers v. Green, 9 How. (U. S.) 213, and Van Buren v. Digges, 11 id. 461, this doctrine has been much modified, if not overruled. TO DETAIN PURCHASE-MONET, ETC. 593 and the true basis of the decision seems to rest not so much upon any distinction between a total and a partial failure of consider- ation, 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 bargained for, viz., the mere transfer of the vendor's title, sucli as it was, without any re- course to him in the event of its turning out defective, and hence the question of consideration was not touched — nor if the deed had contained a covenant of warranty or for quiet enjoyment, could the result have been different, for as there had been no eviction, the purchaser would not have been entitled at that time to damages. 1 ' In Scudder v. Andrews (C. C. N. S.), 2 McLean, 46i, n., the facts were very- similar to those presented in Greenleaf !). Cook, but the decision was the other way. In an action brought on a note given for the purchase-money of land in Wisconsin, the defendant pleaded that the land was part of the public domain, and had never been parted with by the United States. To this there was a de- murrer. There was no evidence whatever of any covenants in the deed, but this seems to have been treated by the court as being of no consequence. " Nor is it perceived," said BI'Lean, J., "in such a case, that it can be important whether the instrument given by the plaintiff to the defendant as evidence o'f title was a deed of conveyance or an agreement to convey. If the plaintiff had no title or claim to the land, which is asserted by the plea and admitted by the demurrer, the defendant has a right to set up that fact as a defence for an action on the note. Why should he be driven to his action on the warranty, if a warranty deed were given, of which however there is no evidence? . . . If the 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 con- sideration, which would not be a matter of defence." The demurrer was there- fore overruled. In this case, the court, after reviewing the authorities, held that their weight inclined in favor of the position that a partial failure of con- sideration could not be set up as a defence. The cases cited however, to prove this (Morgan v. Richardson, 1 Camp. 40 ; Solomon v. Turner, 1 Stark. 51 ; Tye V, Gwynne, 2 Camp. 346 ; Basten v. Butter, 7 East, 479 ; Obbard «. Betbam, Mood. & Malk. 483 ; Gray u. Cox, 4 Barn. & Cress. 108 ; Laing v. Fidgeon, 6 Taunt. 108; Washburn v. Picot, 3 Dev. (N. C.) 390), were by no means modern ones, relatively to this doctrine; and see the later cases, supra, p. 584, note. It may be further observed of this case that in a court of law the presump- tion, from the absence of covenants, must be that the purchaser was to run the risk of the title, and (as in Greenleaf v. Cook) the question of consideration could not afterwards arise in an action for the purchase-money. The expres- sion, too, that it was immaterial whether the instrument was a deed of convey- ance or an agreement to convey, is at variance with the well-settled distinction 38 594 THE purchasee's right at law But Prisbee v. Hoffnagle was substantially overruled in New York, in the first case in which the opportunity occurred. ^ A de- fendant being sued for the purcliase-money of real estate which had been conveyed with a general covenant against incumbrances, pleaded the existence of a prior mortgage, wliich lie averred was a lien upon the property, and on demurrer it was lield 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 damages,^ and judgment was entered for the plaintiff. So in a subsequent case,^ in an action of debt on a bond* given for the purchase-money of real estate which had been conveyed to the defendants with a covenant to warrant and defend them in its quiet and peaceable enjoyment, they pleaded tliat the plaintiff was not seised in fee, but that another was the real owner, and was then claiming adversely.^ On demun-er, judgment was given for the plaintiff, principally on the ground that the plea, being in bar, did not go to the whole consideration.^ between the respective rights of the parties while the contract is still executory, and after it has been executed ; see supra, p. 565. ' Lattin v. Vail, 17 Weud. (N. Y.) 188. ' See supra, p. 288. ' Whitney v. Lewis, 21 id. 131. ■* It is hardly necessary to mention that by statute in New York, as in many other States, the consideration of a bond can, under some restrictions as to pleading, be inquired into to the same extent as the consideration of a simple contract; 2 Rev. Stats. 406, § 77. At common law, such a defence was of course inadmissible against a specialty, even in case of fraudulent representa- tions ; Edwards v. Brown, 1 Tyrw. 196; Wyche v. Macklin, 2 Rand. (Va.) 426 ; Franchot v. Leach, 6 Cow. (N. Y.) 506. The only remedy was in equity. In Pennsylvania, the equitable principles administered in that State, throun-h the medium of common-law forms, establi^hed a dilfercnt rule ; Swift v. Hawkins, 1 Dall. (Pa.) 17; Stubbs v. King, 14 Serg. & Rawle (Pa.), 208; Rawle's Equity in Pennsylvania, passim. ^ The plea also averred that the plaintiff knew of his want of title, and con- cluded "and so the defendants say they have been defrauded." There were, however, no distinct allegations of any false representations, and the conclusion of the plea did not, as the court held, follow from the facts alleged in it. * Frisbee v. Hoffnagle was in this case cited and rehed on for the defendants but its authority was rejected by, Bronson, J., who, in delivering the opinion, further said that the plea furnished no ground for saying that the consideration of the bond had failed ; the plea did not go to the wliole consideration as it alleged that the plaintiff had not a fee, whereas it might be that he had a life- estate or a term for years. It was not alleged that there had been an eviction TO DETAIN PUECHASE-MONET, ETC. 595 Soon after, came a case ^ where in an action of debt on a bond, the defendant pleaded that it was executed in consideration of the conveyance by the plaintiff to himself of certain town lots, hy a deed in which the former covenanted that he was lawfully seised of an absolute and indefeasible estate of inheritance in fee-simple, and had good right to convey them ; the plea then averred that the plain- tiff was not thus seised and had not a good right to convey, and therefore that the consideration had wholly failed. ^ On demurrer, judgment was entered for the plaintiff, and this was affirmed by the Supreme Court,^ as also by the Court of Errors, in whicli it was held that the plea was bad upon two grounds : first, if it was to be con- sidered as going to the whole consideration, it was bad, as not aver- ring that the grantor had no estate or interest whatever, as the consideration had not wholly failed if the defendant had acquired any estate or interest under the deed, however small ; and, secondly, if intended as a plea of partial failure of consideration, it was bad, because such a defence could not be pleaded in bar,* but should, under the Revised Statutes, be embodied in a notice, and given in evidence under the general issue.^ from the land, or indeed that any thing whatever had happened since the con- tract was made. This made the case fall short of Frisbee v. HofFnagle, where the title had been defeated by a sale under a judgment against the vendor, though even then it was thought that that case had gone too far. The thi'rd ground of the decision was, hke that taken in Lloyd v. Jewell (supra, p. 587, note), that the covenant was a sufficient consideration for the purchase-money. ' Tallmadge v. Wallis, 25 Wend. 113. ° There was also a plea of non est factum, upon which the issue was found for the plaintiff, and damages assessed to depend upon the issue of law. ^ The report of the case in 25 Wend, says, " The Supreme Court, on writ of error, affirmed the judgment, and in deciding the case adverted to the opinion delivered in Whitney v. Lewis." ^ s. P. McCullough V. Cox, 6 Barb. (N. Y.) 391. ^ "If there is a total want of consideration," said Chancellor Walworth, who delivered the opinion of the majority of the court, " the defendant may either plead that defence in bar of the action or give it in evidence under a notice, upon a plea denying the execution of the instrument declared on. A partial failure of consideration, however, cannot 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 instrument declared on was not sealed. The defendant, therefore, instead of pleading in bar of the action, should have pleaded the general issue of non est factum, and given notice with said plea of the partial failure of title, for the purpose of reducing the amount to be recovered upon the bond." 596 THE purchaser's right at law If it be objected to this decision that the plea followed the usual form of a declaration on a covenant for seisin, and that the breach of that covenant being admitted by the demurrer, the defendant had a right to set off the damages against the contract price, it may be answered that it is by no means true that the damages for a breach of the covenant for seisin are, as a matter of course, neces- sarily measured by the consideration-money. In those States in which the recovery of the consideration-money is held to reinvest the grantor with the estate conveyed, such a rule may work no injustice,^ but when this result does not follow, and the purchaser, having paid nothing to extinguish the paramount title, is still in possession, the amount of the consideration-money is not always the measure of damages,^ and however this may be, it seems well settled that where the failure is partial, although the purchaser may recover damages pro tanto, yet he cannot make use of the action on the covenant to rescind the entire contract.^ Heifte such a defence is bad, if set up in a plea which is intended to be in bar of the action, and, moreover, the technical rule which allows the breach of a covenant for seisin to be assigned by negativing its words generally, cannot, it is apprehended, for obvious reasons, apply to cases where the breach is to be used as a defence in another action.* In a later case,^ the defendant, being sued on his bond given for purchase-money, proved that the premises had, before the execu- ' See supra, p. 280, 282. ' See supra, p. 262 et seq. ^ See supra, p. 283. * It is, in general, said that a plea of set-off should be as particular as a dec- laration in another action, and where notice of special matter is given under a general issue plea, as a substitute for a regular plea of set-oflF, courts are, in general, very particular in requiring that it shall be full and precise. Although, therefore, the rules of pleading allow the breach of a covenant for seisin to be assigned in a declarationhy merely negativing its words, and with no averment of special damage (as is required in suing in the other covenants for title), it is apprehended that it would be held, as was substantially the case in Tallmadge v. Wallis, that in a. plea the breach of the covenant and the damage which had been sustained thereby should be set forth particularly (and this was the decision in Furness v. Williams, 11 111. 238) ; and the more so, because such a defence is not admissible, in general, under the statutes of set-off, but is admitted either to show how much the contract price should be reduced by reason of the non-com- pliance with the covenant, as in Mondel v. Steel, 8 Mees. & Welsb. 858, or, as in New York, by way of recoupment. ■ Lamerson v. Marvin, 8 Barb. S. C. (N. Y.) 11. TO DETAIN P0ECHA8E-M0NEY, ETC. 597 tion of the deed, which contained general covenants of warranty and for quiet enjoyment, been sold under a foreclosure of a mortgage given by a prior grantor, though the possession still remained with the defendant, and the court held that the defendant having received the possession from his grantor, and still retaining it, should not be permitted to draw in question the title of the latter, until he had been evicted or compelled in some way to i-ecognize the title of the mortgagee.^ So in a very recent case in that State, in an action to foreclose a purchase-money mortgage, the defence was the failure of title to a portion of the premises which had been conveyed to the defendant with covenants for seisin and of warranty, but the court held that as there had been no eviction or disturbance of the defendant's possession, the defence was inadmissible, and, moreover, that as to this, there was no difference between the breach of a covenant for seisin and of warranty.^ It would hence seem to be settled in New York, that unless there has been an eviction, actual or constructive, of the whole subject of the contract, no defence to payment of the purchase-money price can be set up in a plea in bar,^ and that such defence must be by ' The right of the defendant to recoup as for a partial failure of considera- tion, or for damages for fraud, or breach of the covenants in the deed, was not, the court observed, claimed in the answer, and was expressly disclaimed on the trial ; and the defence rested upon the ground that the facts established a flat bar to the action, the case of Frisbee v. Hoffnagle (which, it was contended, had never been directly overruled in New York) being relied on in support of this position ; but the court, after looking at all the authorities in that State, was of opinion that a failure of consideration had not been shown. If Frisbee v. Hoffnagle had never beeivquestioned or doubted, the court would feel bound to follow it without question. But it had not been regarded as good authority, or at least as unquestionable, either in their own courts or those of other States, 2 Farnham u. Hotchkiss, 2 Keyes (N. Y.), 9. ' So in the case of Boone v. Eyre, 1 H. Black. 273, note, the plaintiff con- veyed to the defendant the equity of redemption of a plantation in the West Indies, together with the stock of negroes thereon, in consideration of £500, and an annuity of £160, and covenanted that he had a good title to the planta- tion, was lawfully possessed of the negroes, and that the defendant should quietly enjoy ; and the defendant covenanted that the plaintiff well and truly performing all and every thing therein contained on his part to be performed, he, the defend- ant, would pay the annuity. The plaintiff having declared in covenant for its non-payment, the defendant pleaded that the plaintiff was not, at the time of making the deed, legally possessed of the negroes, and so had not a good title to convey, and, on demurrer, Lord Mansfield, in giving judgment for the plain- 598 THE purchaser's right at law way of recoupment or in mitigation of damages, the circumstances themselves being contained in a notice of special matter, and given under a general issue plea.^ What will be sufficient to entitle the defendant thus to recoup his damages, will of course depend upon circumstances. Where the only covenants are for quiet enjoyment or of vrarranty, nothing short of an eviction, actual or constructive, will entitle him to do so.^ If the eviction be from a specific part of the subject of the purchase, it is apprehended that the damages pro tanto can be successfully set off or recouped against the con- tract 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 plaintiff's recovery to the amount thus paid by him^ will, it is conceived, be equally applied where the position of the purchaser is that of a defendant. The general principle established by this class of cases in New York, that the mere absence of title will not, of itself, constitute a valid defence to the payment of securities given for the purchase- money, has been very generally recognized throughout the United States. Thus in a case in Maine, where the defendant offered to prove that the premises which had been conveyed to him with covenants for seisin and of warranty were levied upon under judg- ments previously obtained against his grantor, it was held that the evidence was rightly excluded.* So where in the same State the land, which had been conveyed with " the usual covenants of warranty," was subject to a mortgage which the mortgagee 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 that any actual^entry had ever been tiff, said, " The distinction is very clear, where mutual covenants go to the whole of the consideration on both sides, they are mutual conditions, the one prece- dent to the other. But where they go only to a part, where a breach may be paid for in damages, there the defendant has a remedy on his covenant, and shall not plead it as a condition precedent (see also M'Cnllough v. Cox, 6 Barb. (N. Y.) 390). If this plea were to be allowed, any one negro not being the property of the plaintiff would bar the action." See also Cutler v. Bower, 11 Q. B. 973. ' And where no notice is given, nothing short of a total failure of considera- tion is admissible under the general issue ; Tibbets v. Ayer, Hill & Denio (N. Y.), 176. ^ Lamerson v. Marvin, 8 Barb. S. C. (N. Y.) 11 ; Farnham v. Hotchkiss, 2 Keyes, 9, ubi supra. ^ See supra, pp. 158, 295. . * Wentworth v. Goodwin, 21 Me. 150. TO DETAIN PURCHASE-MONEY, ETC. 599 made by tlie mortgagee or the defendant been dispossessed of the premises. 1 So, where in Indiana, the defendant pleaded an out- standing right of dower, it was held that unless he had extinguished this right, he could not avail himself of it as a defence, and, even if he had, it would only be a defence pro tanto? So in other cases in the same State, where the defendant pleaded that the note in suit was given for the purchase-money of land sold to him by the plaintiff with a covenant against incumbrances, and that cer- tain incumbrances existed upon the property which were still out- standing, the pleas were held bad on general demurrer.^ And ' Jenness v. Parker, 24 i\Iu. 289. The case seems not to have been decided so much upon this ground as on (he ground that tlie failure of consideration was not total, there being no evidence that the delendant had not received the rents and profits of the land. This however is not in accordance with the more modern decisions ; Herbert v. Ford, 29 Me. 546. ' Whisleru. Hicks, 5 Blatkf. (Ind.) 100; see also, to the same effect, Smith d. Ackerraan, id. 541; liuell v. Tate, 7 id. 55; Poraeroy v. Burnett, 8 id. 142; Hooker v. Folsom, 4 Ind. 90; Major v. Brush, 7 id. 232; Small v. Reeves, 14 id. 164; Starkey v. Neese, 30 id. 222. In James v. Lawrensburg Insurance Co., 3 id. 525, the case of Fiisbee v. Hoffnagle was however cited and approved, though the decision itself was based upon different grounds. ' Clark ». Snelling, 1 Cart. 382; s. c. 1 Smith, 187; Streeter v. Henley, 1 Cart. 401 ; s. c. 1 Smith, 201. In the latter of these cases, the plea set forth that there were unpaid taxes on the land, unknown to the defendant ; that the land was afterwards sold for those taxes, and a certificate of the sale given to the purchaser; but the court said, " These pleas rely on a breach of the cove- nant against incumbrances, but they do not show the defendants to have been injured by the incuml)rances. No eviction under the incumbrance is shown. Had the defendant paid the taxes, he might have thus lessened the amount recoverable in the note, but no such payment is alleged. The demurrers were rightly sustained ; Whisler v. Hicks, 5 Blackf (Ind.) 100 ; Smith v. Ackerman, id. 541 ; Clark v. Snelling, supra. Besides, had these pleas been a defence the sustaining the demuirers to them would not have injured the defendant, as he might in that case have proved the facts stated in the pleas, under the genei-al issues; Shanklin u. Cooper, 8 Blackf. 41." See also, to the same effect. Old- field V. Stevenson, 1 Cart. (Ind.) 153. In Chase v. Weston, 12 N. H. 415, the defendant, after the execution of the deed to him, which contained " the usual covenants of warranty,'' mortgaged it " with the usual covenants" to one who foreclosed the mortgage, and then paid off a prior mortgage which had been executed by the vendor before his convey- ance to the defendant. The court seemed to think it very doubtful whether under the authorities (Lloyd v. Jewell, 1 Greenl. (Me.) 352 ; Howard u. Witham, 2 id. 390 ; Knapp v. Lee, 3 Pick. (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 600 THE purchaser's right at law decisions substantially to the same effect will be found in many cases throughout the United States.^ In a case in Mississippi, which strongly enforced the rights of the vendor, tlie defendants, who had purchased land with covenants of general warranty, proved a judgment recovered against their ven- dor in the Federal Court shortly before the execution of the deed, and a levy and sale under it by the marshal of the district about ten years after, when the property was 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 given for the contract price, as there having been no eviction, the covenants of warranty had not been broken,^ be deemed to have parted with his right to the benefit of the covenants, which he would be precluded from suing on until he had satisfied the damages recovered against him by his vendee. See supra, p. 338. But in Chaplain u. Briscoe, 11 Sm. & 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 suffi- cient title, provided that if the latter were unable to show a complete title to the whole of the premises at the maturity of the latest note given for the purchase- money, he would remit so much per acre for such portion to which he could show no title. Soon after, the defendant sold the land, without covenants, to a third party, and being sued on the last of the notes, the above facts were given in evi- dence, and also that there was a paramount owner in possession of part of the premises. The plaintiff argued that the defendant had assigned with the premises all his right under the covenants, but the court held that the assignment to the third party was not a waiver of the right reserved to the defendant. It was not a thing that could pass to a purchaser, and the defendant's right stood precisely as it did before his assignment. ' Lothrop fc. Snell, 11 Cush. (Mass.) 453; Bavtlett u. Tarbell, 12 Allen (Mass.), 12.5 (see as to the right of the vendee to recover back consideration- money, Earle v. De Witt, 6 id. 526, supra, p. 568, n. 2) ; Drew v. Towle, 7 Fost. (N. H.) 412 (where it was held that so far as the damages were liquidated they could under the local statutes of that State be set off, but not where their amount required to be assessed by a jury) ; Dix v. School District, 22 Vt. 316 ; Hill V. Butler, 6 Ohio St. R. 216 ; Stites v. Hobbs, 2 Disney Sup. Ct. Cinn. (Ohio) 571 ; Allen v. Pegram, 16 Iowa, 172 ; Nosier v. Hunt, 18 id. 212 ; Gifford V. Ferguson, 19 id. 166 ; Brown o. Manning, 3 Minn. 43 ; Brock v. Southwick, 10 Tex. 65 ; Connor v. Eddy, 25 Mo. 72 ; Wheat v. Dotson, 7 Eng. (Ark.) 699 ; Kobards v. Cooper, 16 Ark- 288 (where the text was cited) ; Key v. Henson, 17 id. 254 ; Martin v. Foreman, 18 id. 249 ; Salmon v. Hoffman, 2 Cal. 138 ; Norton V. Jackson, 5 id. 262 ; Peabody v. Phelps, 9 id. 213 ; Reese v. Gordon, 19 id. 147 (where, however, it is said there must be a total failure of consideration) . " Hoy V. Taliaferro, 8 Sm. & Marsh. (Miss.) 727. It was argued on behalf of the plaintiff that the title was divested by the marshal's sale as completely as it could have been by eviction, but the court said it had not been furnished with TO DETAIN PURCHASE-MONEY, ETC. 601 and in subsequent cases in that State the sanae doctrine has been followed.^ any authority to show that a sale either by a marshal or sheriff was equivalent to eviction. Manifestly, it was not so, since the original vendor might still protect his vendee by purchasing from the marshal's vendee, or it might happen that the title acquired from the marshal would not be sufficient to effect an eviction. The voluntary abandonment in this instance gave, it was said, no strength whatever to the defence. A court of Jaw, though the proper tribunal for the trial of titles to land, would not try such titles collaterally. The proceedings must be direct, otherwise the title cannot be questioned. Where there had been an eviction, the defence of failure of consideration might be let in, because the superiority of the outstanding title would (hen be established by a judicial determination. The inquiry would then be narrowed down to a single matter of fact, susceptible of being proved by record evidence, " and," continued Starkey, C. J., who delivered the opinion, " there was not a total failure for another reason ; the defendants held possession under their deed for nearly or perhaps quite two years before the marshal's sale. They were not accountable for the rents and profits during that time to any one. This brings the case completely within the reasoning of the Chancellor, in Tallmadge v. Wallis, 25 Wend. (N. Y.) 197 {supra, p. 695). On this ground, too, it falls within the decision in Greenleaf v. Cook, 2 Wheat. 13 (supra, p. 592), where it was said the failure was not total, because the equity of redemption might be worth something. The possession of the land for two years must have been worth something. This fact, however, in the present case, is not very material when the case is considered under the general warranty ; the absence of an eviction is conclusive upon the defendants." It is 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 covenants, but would merely have prevented the recovery of interest on the consideration-money. See supra, p. 300. It was further said, as in Duncan v. Lane, 8 Sm. & Marsh. 753, that the defendants could not avail themselves of the statutory covenants implied by the words "grant, bargain and sell," as the express covenants of warranty did away the effect of all implied covenants. This however, which is correct law as to the covenants arising from the words of leasing, never was applied, at common law, to the case of a freehold. See supra, p. 457, 461. ' Duncan v. Lane, 8 Sm. & Marsh. (Miss.) 744 ; Heath v. Newman, 11 id. 201; Dennis v. Heath, id. 206; Winstead v. Davis, 40 Miss. 785; Ware v. Houghton, 41 id. 382. In Duncan v. Lane, the defence relied on was that the vendor's title being derived under a sale made by himself as administrator, was invalid, while in Heath v. Newman the premises had been sold under a judgment against the vendor, but the defendant was still in possession. In both these cases, the covenants being of general warranty, the court held that there having been no eviction, the defence could not be set up. These cases were also cited and ap- proved in Feemster v. May, 13 id. 277, where it was considered to be settled that " a vendee who has been put in possession of land and who has accepted a deed with covenants of general warranty of title, cannot defend a suit brought for pur- chase-money, upon the ground of failure of consideration from defect of title, until he is actually evicted." The case itself was however one of an executory -contract. 602 THE purchaser's eight at law So, too, where the land which had been conveyed to the defendant with " full covenants of warranty," was levied upon and sold under a judgment obtained against the plaintiff, its vendor, and purchased by one who, having previously been tlie tenant of the vendor, had since the sale by him attorned to tlie father of the vendee, supposed by him to be tlie purchaser, and after the purchase at the sheriff's sale held the land as his own. In an action brought upon a note given for the purchase-money of the land* it was held that there had been no eviction. " To hold that tliese facts satisfied the re- quirements of the law would, in this, and in many other instances, cause the trial of titles to land in an action of debt or assumpsit. We are not disposed thus to change the established rules of law." ^ It may be observed that the objection to trying the title to land in an action for its contract price, must equally apply in every case where the paramount title had not been established by a judg- ment of a court of record. Yet to give to such a judgment a con- clusive effect would be, where the vendor had not been vouched or ' Dennis v. Heath, 11 Sm. & Marsh. (Miss.) 206. The note sued on was one of four, each for $1,500. The whole subject of the purchase seems to have been levied upon, and was sold for $325 to one Perkins, who was connected by mar- riage with the defendant. There was no direct proof of fraud or connivance in Dennis v. Heath, but the plaintiff's counsel urged that these circumstances savored strongly of it, and the court in delivering the opinion alluded to the price and the connection of the parties. In Wailes v. Cooper, 24 Miss. 232, the court, upon examination of the various decisions 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 : "First. Where a contract for the sale of real estate has been executed, and the vendee has re- ceived a deed with covenants of warranty and taken 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. Second. If there has been fraud or misrepre- sentation in relation to the validity of the title or the absence of incumbrance on it, a court of law or equity, if the title be defective or incumbered, will relieve from payment of the purchase-money without eviction, notwithstanding a party may have received a deed with covenants of general warranty, and gone into possession of the land. Third. Where the vendee at the time of his purchase knew of the defect of title, or the existence of incumbrances on the estate, and took a deed with covenants of warranty, he cannot at law avoid a recovery, even after eviction, but must rely upon the covenants. Nor will a court of chancery in such a case, as a general rule, grant any relief; but will remit the party to his covenants, such being the remedy provided for himself." See as to relief in equity, infra, Cfa. XV. TO DETAIN PUECHASE-MONET, ETC. 608 notified, contrary to well-established principle/ and it is appre- hended tliat in every such case the purchaser would be bound to make out the adverse title under wliich he had been evicted or to which he had yielded, with as much particularity as if suing on the covenants ; and there would seem to be no greater objection to the question of title being brought before the court in the one form of action than in the other. So in an early case" in Alabama,^ the Supreme Court, while approving the course of decision which suffered a partial failure of consideration of personal property to be given in evidence as a de- fence to the contract price, intimated a doubt whether the same principle could be applied to the sale of real estate so long as the contract remained unrescinded. In a subsequent case, where the premises which were the subject of the contract 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 properly rejected.* So in a later case, where the circumstances were similar, such a defence was refused on the ground that the damages, if any, being unliquidated, could not come within the statute of set-off,^ and that the failure of consideration was but partial. These decisions were followed by the case of Cullum v. Bank at Mobile,^ which seems to have gone to a greater length in restrict- ing the rights of a purchaser than any other modern decision in a ' Supra, pp. 227, 232. " Peden v. Moore, 1 Stew. & Port. (Ala.) 81. ' Wilson V. Jordan, 3 id. 92. " If," said the court, " a failure of consider- ation arise from the conveyance of a land title, -which is defective by reason of a paramount title in another, or other incumbrance, the invalidity of the title must be ascertained by an eviction, or something tantamount thereto, before the relief can be sought." The court also said that they took it for granted that this incumbrance was covered by covenants for title which the vendor had given, as otherwise the defence would of course be wholly inadmissible on familiar principles. The case of Frisbee ». Hoffnagle was commented upon in the decision in this case, and disapproved of, and the authorities in South Caro- lina and Pennsylvania were also referred to and correctly placed upon the ground of local practice in the former State and the absence of a court of equity in the latter. See infra. ■ ■" Dunn V. White, 1 Ala. 645. ' The Alabama statutes of set-off were, it was said, copied exactly from the statutes of Geo. II. « 4 Ala. 21. 604 court of law. In an action on a promissory note for a large sum, the defendant proved that it was one of several given for the pur- chase-money of a lot in Mobile, conveyed with a general covenant of warranty ; that after the sale the defendant discovered a mort- gage executed by the vendor a short time previously ; that the latter " had concealed the existence of the mortgage (though it was on record), and did not disclose its existence to the defendant when he purchased the lot," and that when the latter discovered it he offered to cancel the deed and notes ; that soon after the vendor became insolvent and absconded, having first transferred the note in suit, with the others, to the bank, as collateral security for antecedent debts ; that the lot was a vacant one, the defendant never having taken possession of it ; that the mortgagee " took the control of it, paid the taxes, and made the pavement in front of it ; " that the mortgage was then assigned to the bank, who obtained a decree of foreclosure, under which the lot was sold for less than the mortgage debt — purchased by the bank — and held by it at the time of their bringing suit on the note.^ The court, in deliver- ing their opinion, did not consider it 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 boundary which divided the jurisdiction between law and equity ; and that it was immaterial whether the defence went to the whole consideration or only a part ; and the broad proposition was laid down, that neither on the ground of fraud nor of eviction could a purchaser defend himself at law from payment of the purchase-money .^ ' It may here be observed that the note being held by the bank merely as col- lateral security for a pre-existing debt, was held to be subject, in their hands, to all the defences which could have been made to it by the original payee. ■' It is due to the court to state the reasons on which its decision was based. " Without now stopping to inquire," said Goldthwait, J., who delivered the opinion, " whether these circumstances afford a reason for equitable interposition and relief, we think it clear that they do not make out a legal defence, even in the case where the recovery on the covenant of warranty ought to be equal or larger than the sum sued for. The reasons which induce this conclusion are these : In the first place, the damages to be recovered on a covenant of warranty are, in their nature, unliquidated, and therefore are not the subject of a set-off, according to our judgment in the case of Dunn «. White, 1 Ala. 645. Sec- ETC. 605 The authority of this case has been repeatedly and recently affirmed in that State ; and it is there said to be settled that if a purchaser accept a deed with covenants for the title, he cannot, at law, set up either fraud or failure of consideration as a defence to the contract price.^ It thus sufficiently appears that the weight of authority unques- tionably is that, in cases free from fraud, the purchaser will not, ondly, the covenant of warranty would not be extinguished by this defence. Thirdly, the covenant itself operates as an estoppel to the grantor, and would have the effect to transfer to the purchaser or his assigns any subsequently acquired title which should be vested in the grantor. Fourthly, by the convey- ance, all covenants running with the land are ipso f ado assigned to the purchaser. This last reason, it is apparent, does not apply to this case, because the breach of the covenant is a consequence of the vendor's own act, but it must so frequently apply to the cases that it is decisive against the adoption of a practice which would be more like an exception than a general rule. There are many distinc- tions between the rules which affect real and personal estates, which are distinc- tive features of the common law, and their ramifications extend so far that no one can clearly foresee the consequences of overturning them. Among these not the least important are the different modes of succession after the death of the last possessor, and the different effect of covenants respecting each species of estate. If the defence of fraud was permitted in this case, to avoid a recovery at law, there is nothing in the record to show that the contract has ever been rescinded, and therefore the vendor hereafter might be liable to an action on his warranty, or, in the case of a title subsequently acquired by him, be estopped by his covenant from asserting it. Many other difficulties may be supposed which do not indeed apply to this particular case, as it is presented on the record, but which are conclusive against the admission of this defence as a general rule. Take for instance the case of an eviction after the receipt of large rents or profits, for which the purchaser is not responsible to the evictor : are these to remain un- accounted for, or must not the defence be denied under the inference of our pre- vious judgment in Dunn v. White ? " Again, a case may be stated which seems to furnish an absolute test of the unsoundness of this defence at law. In the event of the death of the purchaser before eviction and previous to payment of the purchase-money, the estate would descend to the heir, whilst the personal representative would be answerable for the debt. Which is entitled, the personal representative to defeat the action against him on the notes, or the heir to his action on the covenant of warranty i " but it was held that the defendant was entitled to relief in equity on account of the insolvency of the vendor ; infra, Ch. XV. ' Starke v. Hill, 6 Ala. 785 ; Tankersley v. Graham, id. 247 ; Cole v. Justice, 8 id. 793 ; Knight u. Turner, 11 id. 639 ; Patton v. England, 15 id. 71 ; McLemore V. Mabson, 20 id. 139 ; Homer ». Purser, id. 675 ; Thompson v. Christian, 28 id. 399 ; Helvenstein ». Higgason, 35 id. 262. The doctrines upon which courts of equity administer relief in that State seem to be the same as exist elsewhere ; infra, Ch. XV. 606 THE PaBCHASER'S RIGHT AT LAW ■when sued at law for tlie purchase-money, be allowed to detain the latter, tmless there has been an actual or constructive eviction, and CuUum v. Bank at Mobile may be deemed to have carried this doctrine to its extreme limit. ^ Some cases in Wisconsin and Minnesota might, at first sight, appear to assert a contrary doctrine, but upon examination they will be found to depend upon the statutory provisions in those States. Thus in Wisconsin, it is provided that in any action the defend- ant's answer may contain " a statement of any new matter consti- tuting a defence or counter claim," ^ and that the defendant may set off, first, " A cause of action arising out of the contract or trans- action set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action;" and, secondly, " In an action arising on contract, any other cause of action arising also on contract and existing at the commencement of the action," ^ and under these provisions it has been held that in an action to fore- close a purchase-money mortgage, the defendant may set off, as a counter claim, the damages arising from a breach of the covenant for seisin contained in the conveyance from the plaintiff to tlie de- fendant, although the latter has never been evicted and is still in undisturbed possession, and it is immaterial whether the damages are liquidated or unliquidated, legal or equitable,* and subsequent cases have maintained the same doctrine.^ ' Just as Frisbee v. Hoffnagle, supra, p. 591, went too far in the other extreme. " Rev. Stat. Wis. c. 125, § 10; Taylor's Stat. (1871) p. 1439. ' Id. § 11 ; Taylor's Stat. p. 1440. ' "Walker v. Wilson, 13 Wis. 522. "The claim set up in the answer in this case exists in favor of the appellants and against the respondent, and arises upon a contract and out of the transaction set forth in the complaint. The covenant was broken at the time the suit was brought, and the appellants had good cause of action upon their deed. They did not see fit to bring their suit, but now de- sire to detain the purchase-money to the extent to which they would be entitled to recover damages for a failure of title to part of the premises. We cannot see why this does not constitute a ' counter claim,' within the meaning of the code. The spirit of that enactment is to prevent circuity of action and multiplicity of suits. No matter whether the counter claim be for a breach of a covenant of seisin, or for unliquidated damages upon any other contract, so long as it comes within the requirements of the code it may be set up as a defence in the answer." 5 Hall V. Gale, 14 Wis. 54 ; Akerly ». Vilas, 21 id. 109 ; s. c. id. 377 ; Eaton TO DETAIN PURCHASE-MONET, ETC. 607 So in Minnesota, where the provisions of the Wisconsin statutes have been literally re-enacted,' the same decision has been made.^ But while on the one hand courts of law seem unwilling to allow the purcliaser to detain the purchase-money unless there has been an eviction, actual or constructive, of the subject of his purchase, they do not hesitate to allow the defence where such an eviction has taken place. Thus where, in Massachusetts,^ the defendant being sued on one of his notes given for the purchase-money of land which had been conveyed " with the usual covenants of seisin and warranty," proved that his vendor's title had been defeated by a judgment recovered against him, under which, shortly before the trial, the defendant had been evicted, the court allowed the defence, and said that the plaintiff might meet it by showing that the title was good, or that the land, at the time of the eviction, was worth less than the consideration, and thereby entitle himself to recover the difference, but without evidence to this effect he ought to be entirely barred of his action.* So in a later case in the same State,^ wliere the defendant in an action brought to recover un- V. Tallmadge, 22 id. 628. Thus in Akerly v. Vilas, the court said, " Before the code, it was well settled that in suits brought to foreclose mortgages for the pur- chase-money, in which the mortgagor, being in possession of the lands, set up a partial failure of title as a defence, without averring an actual eviction or an action of ejectment brought, or that he was in any way disturbed in his posses- sion, the court would not interfere, but leave him to his action at law. But the code allows a counter claim to be set up in an answer to a foreclosure action as ■well as in others. It is no objection to such counter claim or claims that the damages are unliquidated or that the claims are legal or equitable, or both ; for claims, legal or equitable, for liquidated and unliquidated damages on contract may be all set up in the same answer. The defendant, who sets up by way of counter claim a cause of action based upon the covenants in a deed, is entitled to recover the same damages as he would have recovered if he had brought a sep- arate action on those covenants. If he declares upon the covenant of seisin, and alleges breaches, it is no defence to his claim that he is in undisturbed possession of the premises. He has a right to recover his actual damages, whatever they may be, the same as in a suit at law before the code." ' Rev. Stat. Minn. 1866, c. 66, §§ 79, 80, p. 460. ' Lowry v. Hurd, 7 Minn. 362. ' Knapp V. Lee, 3 Pick. (Mass.) 459. ■* The decision in this case seems to have been to some extent based upon the insolvency of the party liable on the covenants ; see as to this, infra, Ch. XV. ' Rice V. Goddard, 14 Pick. (Mass.) 293. In this case, as in Knapp v. Lee, supra, the argument for the plaintiff was chiefly based upon the assumption that the covenants themselves were a sufficient consideration for the payment of the 608 THE purchaser's right at law paid purchase-money had been evicted under a title paramount to that of the plaintiff, it was held that the failure of title was total, and that the former was entitled to a verdict. So, too, in Mississippi,^ in au action on a promissory note for a balance of purchase-money of land sold to the defendant's testator with covenants of warranty, the defendant proved that soon after the purchase it was discovered that the vendor had no title what- ever to the land, (except to a very small extent by pre-emption right,) but that the land belonged to the United States, and the de- fendant, after a heavy loss had been sustained by the transaction, had succeeded in purchasing part of the land again from the govern- ment at the public sales, part from purchasers from the govern- ment, and pre-emption rights as to the remainder. A verdict was found for the defendant, which was sustained by the court, who held that apart from the fact that the act of Congress expressly invali- dated any transfer of a pre-emption riglit before the issuing of a patent, there was evidence in the case sufficient to justify the belief that the parties had, on discovering the defect, considered the con- tract as rescinded,^ and that, as to the eviction, as the government need not resort to a suit in order to establish its title, but could obtain the possession summarily, a sale of the land by the latter carried with it such a constructive possession as amounted to an purchase-money, but this the court repudiated, and denied the authority of Lloyd V. Jewell, 1 Greenl. (Me.) 363, ■which had been decided on that ground ; see supra, p. 641. Dickinson o. Hall, 14 Pick. (Mass.) 217, was a case of a sale of per- sonal property. In Trask v. Vinson, 20 Pick. (Mass.) 105 (which, however, was a case of an executory contract), it was said that the cases of Dickinson v. Hall and Kice v. Goddard held that where the consideration of a note was the convey- ance 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 consid- ered, and are founded on sound principles and supported by an irresistible cur- rent of authorities. With the exception of a few obiter dicta in our own reports, 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 the other American and English decisions upon the subject." 1 Glenn v. Thistle, 1 Gush. (Miss.) 42. = The land had been originally sold by Hyde to Leonard, the defendant's tes- tator, who had paid part of the purchase-money in cash, and given his note at twelve months for the balance. The note in suit had been also indorsed by Thistle, the defendant, who was afterwards Leonard's executor. When the defect of title was discovered, Hyde returned to Thistle (Leonard having died in the mean time) all the notes which he had not parted with, and afterwards exerted himself to procure for Thistle the title to as much of the land as could be bought TO DETAIN PURCHASE-MONET, ETC. 609 eviction/ and decisions to tiie same effect have been made in many other cases.^ So in cases where the purchaser has been obliged to buy in the outstanding title, courts have not hesitated to allow him to deduct from the purchase-money the amount paid for that purpose, pro- vided the covenants were such that he would be then entitled to to furnish him with a consideration for the payments received. It is presumed that the note on which suit was brought had been taken by the plaintiff after its maturity, as there was evidence of his having made inquiry whether any sot-off existed against its payment. ' " As the title has failed," said Sharkey, C. J., who delivered the opinion, "we come next to inquire whether the defence is made complete by eviction. The deed contains but a general covenant of warranty, and it has often been de- cided that there is not a total failure of consideration without eviction, or some- thing equivalent ; Hoy v. Taliaferro, 8 Sm. & Marsh. 727 ; Heath v. Newman, 11 id. 201 ; Dennis v. Heath, id. 206 ; Duvall v. Craig, 2 Wheat. (LT. S.) 4,5, and notes. But this is a rule which may be subject to exceptions, or, at all events, a sufficient eviction may be accomplished by various means. Delivery of seisin by the sheriff to the creditor in satisfaction of the execution is an eviction of the tenant, and constitutes a breach of the covenant of warranty ; Gore v. Brazier, 3 Mass. 623 ; Wyman ti. Brigden, 4 id. 150. And if one having a paramount title enter and hold adversely, it is equivalent to eviction; Curtis v. Deering, 3 Fairf. (Me.) 499. And entry and legal possession taken under a mortgage, to which the estate was subject when conveyed to the tenant, constitute an eviction ; Tufts v. Adams, 8 Pick. 547. The foregoing seem to have been regarded as cases of legal eviction without actual ouster. But this case stands upon even move favorable. ground for the defence. The land. belonged to the United States, -which does not resort to a suit to evict the possessor ; he may be turned off in a summary way. It was not necessary that the government should resort to a suit to establish title. Any one in possession of public land is either a trespasser, or holds by permission of some act of Congress. And a sale of the land by the government carries with it a constructive possession ; and such sale constitutes therefore a legal eviction,. or certainly what is equivalent to it. But further, if any one had possession, it must have been Thistle, as executor, his wife being a joint legatee of all the real estate ; and if he has entered under a paramount title, this is equivalent to an eviction, as an actual ouster was impossible under the circumstances ; and such title we have said it was competent for him to acquire. But what is perhaps no less conclusive, nothing was said as to the possession. It does not appear from the record whether Leonard ever had possession. The point seems to have been overlooked." '^ Tibbets v. Ayer, Hill & Denio (N. Y.), 174 ; Blair v. Claxton, 4 N. Y. 529 ; Dodds V. Toner, 3 Ind. 427 ; Slack v. MoLagan, 15 111. 242, and see the remarks on that case in Vining v. Leeman, 45 id. 248; Hobein k. Drewell, 20 Mo. 450; McDaniel u. Grace, 15 Ark. 489, where the text was cited; Fisher v. Salmon, 1 Cal. 413 ; Brandt v. Foster, 5 Clarke (Iowa), 298, citing the text. 39 610 THE purchaser's RIGHT AT LAW damages upon them.^ Thus where the defendant being sued on a note for the purchase-money of land conveyed with general warranty, proved that the plaintiff had previously conveyed the land to another who was about to sue upon his title, when the defendant purchased it for a sum exceeding that of the unpaid purchase- money, the court had no doubt that these facts were a defence to the action.^ So in Indiana,^ in an action by the indorsee of a promis- sory note, the defendant pleaded that its consideration was the balance of the purchase-money of certain land conveyed by the payee to the defendant with " covenants of clear title and of war- ranty," and that part of the land was incumbered by judgments and mortgages which the defendant had, in order to prevent a sale, been obliged to pay off. The plaintiff replied that these payments ' 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 cov- enants for title ; but not incumbrances paramount to his title and not covered by his covenants ; " Dart on Vendors (4th ed.), 737. ' Pence v. Huston, 6 Gratt. (Va.) 304. It may save the student some waste of time to observe that many cases are cited in the reports and occasional notes in text-books as bearing upon the subject of this chapter, which, in fact, have no connection with it. Thus the cases of Stone v. Fowle, 22 Pick. 166 ; Tillotson V. Grapes, 4 N. H. 448 ; Chandler u. Marsh, 3 Vt. 162 ; 'Long v. Allen, 2 Fla. 404; Peques ». Mosby, 7 Sm. & Marsh. (Miss.) 340 ; Liddell v. Sims, 9 id. 596 ; Feem- ster V. May, 13 id. 275 ; Wiggins v. McGimpsey, id. 632 ; Mobley v. Keys, id. 677 ; Leonard!). Bates, 1 Blackf. (Ind.) 172; Tyler u. Young, 2 Scam. (111.) 445 ; Gregory v. Scott, 4 id. 392 ; Condrey v. West, 11 111. 146 ; Morgan v. Smith, id. 194; Davist). McVickers, id. 327; M'Kayu. Carrington,l McLean (C. C.U. S.), 60, were all cases of executory contracts, and of course governed by diiferent principles from cases of contracts executed. Burton v. Schermerhorn, 21 Vt. 291, was a case of personal property, and it was held, affirming the doctrine in Stone J>. Peake, 16 id. 218, that a partial failure of consideration was no defence unless the defendant offered to rescind the contract. Lawrence v. Stonington Bank, 6 Conn. 626, merely decides that between the original parties to a negoti- able note its consideration may be inquired into, while Homes v. Smyth, 16 Me. 177, holds the equally familiar proposition, that if the note is in the hands of a bona fide indorsee before maturity, and taken in the usual course of business, its original consideration cannot be inquired into. The student must also be careful to class by themselves the cases in Penn- sylvania, Texas, and the earlier authorities in South Carolina, which will be presently referred to. 3 Doremus v. Bond, 8 Blackf. (Ind.) 368. TO DETAIN PURCHASE-MONET, ETC. 611 had been made by the defendant after notice of the assignment of the note, but this was obviously held bad on demurrer, and judg- ment was given for the defendant.^ Other cases have recognized and applied the same principle,^ though it has been sometimes con- sidered that a reconveyance is necessary.^ The purchaser's remedy in equity is treated of in a subsequent chapter.* There remains but to consider the doctrine which, from an early date, has prevailed in South Carolina and Pennsylvania, and been very recently adopted in Texas. In South Carolina, the courts of equity have adopted the rules enforced elsewhere,^ but in the common-law courts the rights of the purchaser were for a long period protected, upoa what was thought to be equitable principles, at the expense of the vendor. Since the case of Furman v. Elmore,^ it became the settled law of South Caro- lina that a covenant of warranty possessed also the properties of a covenant for seisin, and an eviction was not therefore considered necessary to its breach. Hence it was held that if a purchaser, ■when sued for the contract price, could establish to the satisfaction of the jury that he took nothing by his purchase and that he would be ousted by the paramount title, they might find a verdict for the defendant, not on the ground that the failure of title was a rescis- sion of the contract, but because the damages on the covenants were exactly equal to the purchase'-money and interest ; ' and it ' It is presumed that the plaintiflP was not a holder for value, before maturity, and without notice. ' Brandt v. Foster, 6 Clarke (Iowa), 298; McDaniel v. Grace, 15 Ark. 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 the vendor sues for the purchase-money, the purchaser may avail himself of the plea of failure of consideration, and will not be forced to pay the money and then resort to a cross-action upon the covenants of his deed to recover it back ; Rawle on Covenants, 604, &c." = Deal V. Dodge, 26 111. 459 ; Vroman v. Darrow, 40 id. 172 ; Babcook v. Case, 11 P. F. Smith (Pa.), 430; and see supra, p. 282. * Infra, Ch. XV. ' Whitworth v. Stuckey, 1 Rich. Eq. 407 ; Van Lew v. Parr, 2 id. 337 ; Maner D.Washington, 3 Strob. Eq. 171 ; Kibler v. Cureton, Rich. Eq. Cas. 143 ; Gillam ». Briggs, id. 432. ' Reported in a note to Mackey v. Collins, 2 Nott & McCord, 189. ' Farrow ». Mays, 1 Nott & McCord, 312; Hunter v. Graham, 1 Hill, 370; see Van Lew v. Parr, 2 Rich. Eq. 339, cited infra, p. 612, n. 5, 612 THE purchasee's eight at law followed that when a portion of the land was covered by a para- mount title, which might, and in the opinion of the jury would so far deprive the party of the benefit of his purchase, the dam- ages could be assessed pro tanto ;'^ and such is still the law at the present day. But there was another class of cases, which, beginning with Gray v. Handkinson, in 1792,^ established the doc- trine that where the object of the purchase was defeated, either by a failure of part of the title, or of some incident to the purchase, the purchaser could be relieved at law by a rescission of the contract, although he might be still in possession. Such a doctrine, which, it was held, was a sort of equitable defence, cognizable as well at law as in equity on the ground of fraud, continued to prevail until the year 1829, when the courts began to retrace their steps, and by a series of decisions ^ established the position that if the purchaser had not been evicted the contract would not be rescinded in a court of law, principally on the ground that such a court has not the power to do full and adequate justice to the parties ; and the result of the cases is said at the present day to be " that in actions brought for the purchase-money, the purchaser may make a clear subsisting outstanding title the ground of abatement for the contract value of such part of the premises as it may cover." * Such a proposition must, it is apprehended, be understood only as applying to cases in which there are covenants which include the adverse title. ^ ' Farrow v. Mays, Furman v. Elmore, Van Lew t). Parr, Jeter v. Glenn, 9 Eieh. Law, 378, supra. » 1 Bay, 278. ^ Carter i;. Carter, 1 Bail. 217 ; Bordeaux v. Cave, id. 250 ; Westbrook v. McMillan, id. 259 ; Johnson v. Purvis, 1 Hill, 326, where it was said that the case of Gray v. Handkinson was an interpretation unknown to the common law. ■* Per Johnson, Ch., in "Van Lew v. Parr, 2 Rich. Eq. 841. In the later 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. ^ Thus in Evans v. Dendy, 2 Spears, 10, and Rogers v. Horn, 6 Rich. Law, 362, such a defence was refused, because, in case of a sale by an ordinary or a commissioner in equity, no warranty of the title could be exacted. The current of authority in South Carolina having been fully explained in the case of Van Lew v. Parr, 2 Rich. Eq. 347, the author has, of course, preferred the statement by the court of the result of the cases to any which would other- wise have been attempted. "My present purpose," said O'Neall, J., who deliv- TO DETAIN PURCHASE-MONET, ETC. 613 111 Texas, where all distinction between law and equity has been abolished by the constitution,^ the same doctrine has also been ered the opinion, " is more to explain the various cases decided in the courts of law on the question how far an outstanding title can be set up as a defence at law, than for any thing else. The defence at law, before eviction, proceeds upon the ground that the covenant of seisin is broken by a want of title in the seller, and damages for this breach are allowed as a discount. In the case of Mackey V. Collins, 2 Nott & McCord, 186, it was held that the warranty in our deeds, drawn according to the act of 1795 (see this statute referred to, supra, p. 489), is both a covenant of seisin 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 unpublished, and apparently unknown to the bench or bar, but which was most fortunately brought to light and published in a note to Mackey v. Collins, 2 Nott & McCord, 189. The same principle was affirmed in Biggus V. Bradly, 1 McCord, 600, with this qualification, thai a purchaser in possession should not be allowed to purchase an outstanding title, and sue for a breach of the covenant of seisin. In that case, and many others, there is a good deal said about an implied warranty arising from a full price in the sale of lands as well as in the sale of chattels ; but it is manifest such a doctrine has no foun- dation in law, and was not necessary for the decision of the cases at law when they rested on the covenant of seisin in the deed. The principle ruled in Mackey V. Collins was reaffirmed in Johnson v. Veal, 3 McCord, 449. But in that case another very important 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 seisin before eviction, by showing that the grantor had not title at the execution of his deed, the statute of limitations began to run from the execution of the deed, and that, in such a case, four years would bar his remedy by action of covenant. "At law, there formerly were three classes of cases, in which a purchaser could be relieved, in part or in whole, from the payment of the purchase-money. 1st. Where there was a partial failure of consideration, as where part of the land sold and conveyed was covered by a paramount title, which might, and in the opinion of the jury would, so far deprive the party of the benefit of his purchase. This is essentially matter of discount, and, as is decided in Farrow v. Mays, 1 Nott & McCord, 312, can be given in evidence only under a notice of discount filed, and served on the opposite party. In such case, the measure of damages to be allowed to the party on his covenant of seisin is the pro rata value of the land covered by the paramount title, estimated by the purchase-money and interest, and the relative value of the land thus taken off in the purchase, to the land remaining; Furman v. Elmore, 2 Nott & McCord, 199-204. The second class is where the grantor, when he sold, had, or at the trial has, no title to the land. In such case, the vendee, having acquired no title, has of course no con- sideration for his promise, and hence if the action be on a parol contract, it may ' Texas Constitution, art. 4, § 10. 614 THE purchasee's eight at law announced. Thus in an early case in that State the defendant, in an action for the purchase-money of real estate which had been con- be regarded as a nudum pactum, and the vendee thus relieved at law. In such a case, as is said in Farrow v. Mays, the defence may be given in evidence under the general issue. But in an action on a specialty, as is explained in Hunter ». Grahana, 1 Hill, 370, before the act of 1831, the failure of consideration must have been specially pleaded, or set up by way of discount. The act merely lets the party into his defence under a notice instead of a plea. In a suit on a spe- cialty, therefore, it would seem the more prudent course for a defendant (and the most consistent with legal rules) to regard his covenant of seisin as broken to the whole extent of his purchase-money and interest, and to claim damages ac- cordingly by way of discount. In such a case, if the jury should be satisfied that, in fact as well as in law, the purchaser took nothing by his title, and that he will be ousted by the paramount title, they may find a verdict for the defendant, not on the ground that the failure of title is a rescission of the contract, but that the damages on the covenant of seisin are exactly equal to the purchase-money and interest. In such a case there is no necessity for an appeal to equity to put the parties in statu quo ; for the vendor's deed conveys no title to the vendee. Neither can the vendor claim an account for rents and profits ; for his vendee is liable to the owner of the paramount title for the rent of the land during the time he may be in possession ; Taylor v. Fulmore, 1 Rich. 52. Both of these classes of cases have always been, and still are, regarded as constituting legal defences, examinable and relievable in a law court. The third class of cases, where there was a good title in part and in whole conveyed by the vendor to the vendee, and the object of the vendee's purchase was defeated, either by a part failure of the title or the failure of some incident to the purchase, represented by the vendor or shown by the title as resulting from the purchase, the purchaser formerly was held to be relievable at law, although he might be in possession, hy a rescission of the contract. The case of Gray v. Handkinson, 1 Bay, 278, which seems to have been the beginning of this doctrine, held that a mill-seat was the principal inducement to the purchase, and that, being taken away by an older title, entitled the vendee to a rescission of the contract. In that case the judges speak of the defence as a kind of equitable one, which was allowed now in a court of law as well as in equity, on the ground of fraud. So far as fraud is concerned, I have no doubt the defence is good anywhere. But there is no fraud where both vendor and' vendee are alike ignorant of the defect : and that was the case in Gray v. Handkinson. In a note to that case, the rule of the decision is ascribed to the doctrine that a sound price warrants a sound commodity. It was followed by the ease of The State v. Gaillard, 2 Bay, 11. In that case, the defence rested upon the ground that, when the land was sold, a plat was presented, which represented a fine copious stream of water running nearly through the centre of the tract, with a mill-seat upon it ; and that these advantages were the principal induce- ments 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 personalty, and that by the general terms of our discount law a defence predicated of it could be set up. In that case, the verdict of the jury rescinded the contract, notwith- TO DETAIN PURCHASE-MONEY, ETC. 615 veyed to his ancestor by the plaintiff, pleaded a total failure of title, but did not aver an eviction, and the court, in recognizing and follow- standing the contract was executed both by the execution of deeds and the. de- livery of possession to the vendee. It is possible that that case might stand upon the fraud resulting from the misrepresentation at the sale, without resorting to the wild doctrine that there was an implied warranty from the price paid, in ad- dition to the legal covenants of seisin and quiet enjoyment. These two cases were followed by many others, where, from misrepresentation or a failure of con- sideration, in part, which defeated the purchaser's object in making the purchase, the contract was rescinded. The extravagant results to which we were conducted may be illustrated by the case of the Commissioner in Equity v. Robert R. Pear- son et al. In that case, the land had been sold under a decree in equity in the case of. Delilah Perry, by her committee, v. The Executors of Aaron Cotes, deceased, and purchased by the defendant, Pearson, at a great price. He re- ceived titles, — was in possession for years. He made several payments on his bond. At last, when sued, he succeeded in showing that there was an outstand- ing 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 sold. The constitutional court, against the finding of a jury, allowed the defence, and the vendee was permitted to rescind the contract. At length, however, the ^ourt awoke to the mischievous consequences of allowing such defences, and in the cases of Carter v. Carter, 1 Bail. 217, Bordeaux v. Cave, id. 250, and Westbrook v. M'Millan, id. 259, undertook to retrace their steps. In those cases, they de- clared that where the contract of sale was executed by the delivery of titles and possession to the purchaser, and he had not been evicted, that for a failure of title to part of his purchase, although it might defeat its object, the contract would not he rescinded in a court of law, and that the party must seek relief in a court of equity. The reasons assigned that a court of law could not restore the par- ties to their original condition by compelling the vendee to convey the title, which, as far as the vendor had title, conveyed a good legal estate to him, and to account for rents and profits to the extent of the vendor's title, were certainly true, and showed that in such a case a rescission at law could not take place. The rule of these cases was admirably explained by the only surviving member of the excellent court which pronounced the decisions in Carter ». Carter, Bor- deaux V. Cave, and Westbrook v. M'Millan, in the case of Johnson v. Purvis, 1 Hill, 326. In that case, Johnston, J., said : ' The first ground of this motion is founded on a misconception of the cases of Carter ». Carter, 1 Bail. 217, Bordeaux V. Cave, id. 250, and Hext v. Morgan, decided in 1829, and from what has occa- sionally fallen from the bar in reference to these cases, I am led to conclude that the impression is not unusual that want of title in the vendor of land, either in whole or in part, is not a good defence to an action brought at 'law to recover the purchase-money. But these cases inculcate no such rule ; they maintain, how- ever, that a court of law cannot rescind a contract for the sale of land, on account of a partial failure of consideration, on the ground, principally, that a court of law has not the full power to do full and adequate justice to the parties.'' When these observations are understood as applying to an executed contract accom- panied by possession of the land, they give a perfect exposition of the rule as 616 THE purchaser's RIGfHT AT LAW ing the autlioi'ity of the decisions in South Carolina and Pennsyl- vania, said, " The vendee must, by competent and sufficient evidence, establish the existence and validity of the outstanding title, but when that is done, there is no reason why his remedy sliould be delayed until disturbed in the enjoyment of the land, and this even when the defendant is in possession." ^ The leading case, however, in that State is Cooper v. Singleton,^ where in an action on a note given for the purchase-money of land which had been conveyed with a covenant of general warranty, the defendant pleaded an outstanding title as to one-half thereof, but did not allege that an eviction had either taken place or was threatened, and upon demurrer, the court held, after com- menting upon the Pennsylvania cases,^ that such allegation was not necessary, for " where there was clearly no title in the ven- dor, the purchaser is not compelled to pay, and then, after eviction, seek his remedy on the covenants of his deed," but it was also held that the vendee must clearly prove the existence of the outstand- ing title, and his own want of knowledge of the defect at the time of his purchase, and as the plea was not sufficiently certain in these respects the demurrer was sustained,* and it was further said that settled by the Court of Appeals in 1829, and ever since inflexibly maintained by the law court." See also the cases noticed in Means v. Brickell, 2 Hill, 143, and Abercrorabie v. Ovvings, 2 Rich. 127. ' Tarpley v. Poage, 2 Tex. 139. " On what ground," said the court, " could proof of the defence set up in the answer be refused ? It may possibly have been on the ground (and this supposition receives some countenance from the argument of the appellant in this court) that the defendant had not been judi- cially ejected from the premises — and that until eviction the defence was- unavail- able. But why should the defendant be postponed until actual eviction, when redress would very frequently be hopeless ? Where the vendor has impliedly or expressly warranted his authority to sell, and it appear afterward that his title is intrinsically defective, or there is sufficient evidence of a valid subsisting out- standing title in others, it would operate with great injustice to compel the pur- chaser to pay the purchase-money, and then, after final eviction consequent on a harassing litigation of the title, to institute a new action on the covenants of the conveyance against the vendor." ■' 19 Tex. 260. = Infra, p. 618 et seq. * " After the title has been passed," said the court, " and the deed executed, the purchaser cannot, according to the doctrine in England and in most of the States, resist the payment of the purchase- money on the ground merely of defect or failure in the title. Where there has been no fraudulent representations on the part of the vendor as to the title, the general rule is that the vendee under a deed must pay the purchase-money, and rely upon the covenants in his warranty TO DETAIN PUECHA8E-M0NBT, ETC. 617 in the case of a total or partial failure of title, the vendee should offer to reconvey the land or so much thereof as to which the title had failed. 1 This case has been consistently followed, and it is well settled in that State that a vendee may, before eviction, detain the unpaid purchase-money whenever thei'e has been a total or partial failure of title, but in order to entitle him to this relief he m\ist prove beyond doubt that there is a paramount title under which he is liable to be evicted,^ and it must also clearly appear that he was ignorant of its existence until after the delivery of his deed,^ for if he purchased with knowledge of the defect, he will be compelled to await an eviction and then rely upon the covenants.* for redress ; and if there be no fraud and no covenants, he is not entitled to any relief. But such is not the rule as recognized by the courts of this State. The doctrine in Tarpley v. Poage, 2 Tex. 139, is to the effect that though there may be a deed with covenants of warranty, yet the vendee may resist the payment of the purchase-money in cases where the title has turned out to be ■wholly defective, or there be a valid outstanding title in others ; that where there clearly was no title in the vendor, the purchaser is not compelled to pay, and then, after eviction, seek his remedy on the covenants of his deed, especially where the vendor is or may probably be insolvent or beyond the reach of the court. The rule in that case is not upon the ground of fraud in the vendor, but of such failure of title as exposes the vendee to danger, or in fact to the certainty of eviction. The plea in the case on hand avers the title of the vendor to be defective, but does not state when that fact came to his knowledge. He alleges merely defect of title, and he certainly should aver, in order to show that he has equity, that he did not know of the defect at the time of sale. If he be ex- empted from the necessity of abiding eviction, and then resorting to his covenants, he should aver such facts as would in equity and justice entitle him to relief; . . . and if he have a deed with warranty, he ought not to be released from pay- ment, unless in case of fraud on the part of the vendor, or of defect in the title not known to the vendee at the time of sale. He cannot be required to prove a negative, but he can prove the facts and circumstances of the sale, and if from these no inferences arise that the purchase was to be at his risk, and no proof establishing such fact is offered by the vendor, he ought to be let into his defence." 1 See Demaret v. Bennett, 29 Tex. 263, and infra, Ch. XV. ' Woodward v. Rodgers, 20 Tex. 176 ; Cook v. Jackson, id. 209 ; Johnson v. Long, 27 id. 21 ; Demaret v. Bennett, 29 id. 263. = Brock V. Southwick, 10 Tex. 65 ; Herron v. De Bard, 24 id. 181. • Demaret v. Bennett, 29 Tex. 263. The result of the authorities was thus stated in this case : " A purchaser who has gone into possession under a deed with warranty, without any notice of a defect in the title, may resist the payment of the purchase-money, by showing his title to be worthless, and the existence of a superior outstanding title by actual ouster, or, what is tantamount to the same, an 618 THE pdechaseb's eight at law The doctrine which, from an early day, has prevailed in Pennsyl- vania as to the purchaser's right to detain the purchase-money after the execution of his deed, by reason of an incumbrance or defect of title, is believed to be peculiar to that State, though as respects his right iorecover hack what has been already paid, the law that has been referred to as prevailing elsewhere ^ is there fully recognized and enforced. In early cases in that State,^ the maxim of caveat emptor in the sale of real estate, was adverted to, and in Dorsey v. Jack- man,^ the plaintiff, on paying his purchase-money, took from the defendant, his vendor, a mere assignment of a commissioner's deed under a tax sale, and on discovering that it conveyed no title, brought suit to recover the amount of the purchase-money,* and under the charge of the court below obtained a verdict, but the judgment was reversed on error, on the ground that there being no implied warranty in the sale of real estate, a purchaser who had neg- lected to protect himself by proper covenants could not in an action for money had and received recover what he had already paid ; and this rule, which is in accordance with all the decisions elsewhere, has been consistently adhered to.^ In delivering their opinions, however, two of the court suggested that a distinction might exist as to the purchaser's . right to detain so much of the purchase- money as should remain unpaid, but a definite expression of opin- ion on this point was, it was said, reserved until the determination of a case that had already been argued. indisputable, superior outstanding title and that he is liable to be evicted. But when the purchaser goes into possession under a deed with warranty, and with notice of the defects in the title, there are no equitable grounds upon which he can withhold the purchase-money for failure of the title, for the transaction still remains as the vendee understood it to be at the date of the purchase, and he will be forced to await eviction and then rely upon the covenants in his warranty for the damages arising from the breach of the same." ' See supra, p. 567. " Boyd u. Bopst, 2 Dall. 91 ; Cain v. Henderson, 2 Binn. 108. ' 1 Serg. & Kawle, 42. ■* The plaintiff having found out the true owner, purchased the title of him, but this in the case of a deed without covenants is an immaterial point ; see infra, p. 623. •* Lighty V. Shorb, 3 Pa. R. 447 ; Ker v. Kitchen, 7 Barr, 486. It may be proper'to repeat that even 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. 586. TO DETAIN PURCHASE-MONET, ETC. 619 That case was Steinhauer v. Witman/ decided in 1815 — the leading authority in Pennnsylvania as to 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 mort- gage for the purchase-money, and in an action on this mortgage evidence was admitted to prove that the purchaser had been evicted from part of the mortgaged premises under a title paramount to that of the plaintiff, and of course not covered by his covenants. The admission of this evidence was assigned for error by the plain- tiff, on whose behalf it was urged that to make him liable beyond the extent of his covenants would be to confound all distinction between limited and unlimited covenants, and be a violation of the agreement of the parties ; "'' and the court, while admitting that if the question were new, it might be difficult to answer, said, " But principles have been established which are adverse to the plaintiff's reasoning, and must be considered as the law of the land. The plaintiff does not deny that the matter offered by the defendant would have been a good defence, if the contract had rested on arti- cles by which the plaintiff had agreed to convey, and the defend- ant had covenanted to pay the purchase-money : and yet if these articles had only bound the plaintiff to co;ivey with covenant of special warranty, it would have been as much against the spirit of the contract to make him responsible for an eviction under a title paramount, as it is now, after he has conveyed with a covenant of special warranty. A distinction has been established between pur- chasers who have paid, and who have not paid, the purchase-money. Those who have paid have no relief, but those who have not paid are relieved, in case of an eviction or manifest failure of title. There is a dictum to this purpose by Lord Commissioner Rawlin- son,^ and the point was directly decided in an anonymous case, 2 » 1 Serg. & Rawle, 438. ' Sugden on Vendors, and Bree v. Holbeok, Doug. 664, supra, p. 567, n. 2, were the authorities relied on for the plaintiff. ' The dictum thus referred to is in an anonymous case in 2 Freem.i 106. A bill filed to relieve a purchaser, on the 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 cove- nant; but it was said by Rawlinson, that if the purchaser had in that case had money in his hands, that this court would have helped him, but not after he had paid his money." 620 ■ THE purchaser's right at law Cases in Chancery, 19.^ The case of Tourville v. Nash ^ is also worthy of consideration, although not directly in point. There the purchaser paid part of the money, and gave bond for the residue. After giving bond, and before payment, he received notice of an equitable lien on the land which he had purchased, and it was held that he should be subject to the lien, although he contended that the notice came too late, because he had no defence against the bond. But the Lord Chancellor answered, that though there was no de- fence at law, yet equity would, in such a case, stop payment of the money due on the bond.^ I have reason to believe that the courts of this State have been governed by the principles of the case in 2 Cases in Chancery, 19, so that to set up a different rule now would create confusion." The judgment was therefore affirmed. It is familiar that the absence, for just a century, of a court of equity in Pennsylvania gave rise to the practice of exercising equi- table jurisdiction through the medium of common-law forms.* Such a practice would fully account for the application, in Stein- hauer v. Witman, of such equitable principles as regulated the rights of the parties to contracts when executed, but it would not account for the application of such equitable principles as govern executory contracts. The difference between these two principles has already been refei'red to as a broad one ^ — before the consummation of the contract by the execution of the deed the right of the purchaser to a title clear of defects and in- cumbrances is undoubted — after that time, his rights, both at law and in equity, depend solely on his covenants for title. It is obvious that the doctrine of Steinhauer v. Witman was to wipe out this distinction, and the result of this decision, added to that of Dorsey V. Jackson, of course gave a purchaser greater rights as a defend- ant than he could have as a plaintiff. ' This case (which has been ah-eady cited at length, supra, p. 568, n.) has always been deemed as of doubtful authenticity and authority, and even in Pennsylvania has been said to be " not worthy of a moment's consideration ; " Lighty v. Shorb, 3 Pa. K. 451. = 3 P. Wms. 307. ' It must, however, be observed of this case of Tourville v. Nash that the contract was not executed, but executory. If it had been executed by a con- veyance containing no covenant which included the lien in question, equity could not have relieved the purchaser; see supra, p. 567. * For a sketch of this Pennsylvania system, see Laussat on Equity in Pennsyl- vania, and the supplementary treatise, Rawle on Equity in Pennsylvania. * Supra, p. 666. ETC. 621 The doctrine announced in Steinliauer v. Witman was affirmed in a case decided in 1819,^ and although alwaj's adhered to, has ' Hart V. Porter, 6 Serg. & Rawle, 201. The plaintiffs having brought suit in the court below on three notes given for the purchase-money of land sold to the defendant with special warranty, the latter proved an outstanding title of dower in the wife of a former owner, to rebut which the plaintiffs offered in evi- dence a release from her husband and herself, subsequent to the commencement of the suit ; which the court, under objection, admitted, and then charged the jury that as there had been no previous agreement to convey the land free from incumbrances — as the incumbrance existed at the time of the purchase made by the defendant — as he had a full opportunity of making himself acquainted with the circumstances of the title, and accepted a conveyance without general warranty, he could not then avail himself of any defect of title as a defence to the action, and was answerable for the whole of the purchase-money. Upon writ of error to the Supreme Court, it was there held that the evidence had been properly admitted, but the judgment was reversed upon the ground of the charge. The court, in referring to Steinhauer v. Witman, said, " As the opinion of the court in that case was unanimous, the law must be considered as settled. I will freely confess that it was not without considerable reluctance I agreed to the principle established in that case, nor did I make up my mind until I had taken pains to ascertain what had been the understanding and practice in this State for a great length of time. Being at length satisfied that the prevaihng opinion among lawyers, judges and men of business had been that until payment of the purchase-money the vendee might avail himself of a defence founded on defect of title, even where he had accepted of a conveyance with special warranty only, I thought it incumbent on me not to oppose a 'principle in which there was nothing contrary to equity. Indeed the objections to this principle are not founded so much on equity as on policy and convenience. For where one party intended to convey, and the other expected to receive a good title, it is but equity that the purchaser should have relief in case of any defect of title, although there was no express agreement to that purpose. Where the intent was that the purchaser should run the risk of title, there is not a word to be said for him. And such intent may be fairly inferred where he knew of the defect at the time of purchase, and made no provision against it in his agreement. Consid- ering then that it was decided in the case of Steinhauer v. Witman, that a purchaser not having paid his money may defend himself under a defect of title, where part of his purchase has been evicted, although he has accepted a conveyance with no more than special warranty, and considering that where there has been no evic- tion it would be against equity to compel payment of the whole purchase-money for a defective title, I am of opinion that the charge of the Court of Common Pleas was erroneous. The judgment therefore should be reversed. It is to be understood that this opinion is confined to the case of a purchaser who has no covenants on which he can have recourse to the seller. Where such covenants exist, it is not meant now to say at what time or in what manner the purchaser is to have his remedy on them." It is difficult to perceive why the judgment was reversed in this case, since, by the evidence, which the Supreme Court held to have been properly admitted, it 622 THE purchaser's right at law been qualified and explained in many subsequent cases/ whose re- sult may be stated in general terms to be that, in Pennsylvania, a purchaser may defend himself from payment of the purchase-money by reason of a clear outstanding defect or incumbrance, unless the intention was that he was to run the risk of it.^ Such an intention may be either matter of proof or matter of implication, and the most material circumstances are, in general, notice on the part of the purchaser, combined with the presence or absence of covenants which include the defect or incumbrance, or, in other words, as stated in a recent case, the doctrine in Pennsylvania is that " if the consideration-money for land has not been paid, the purchaser, unless it plainly appear that he has agreed to run the risk of the appeared that at the time of the trial the only outstanding title which was relied on by the defendant had been extinguished, and for any thing that appeared upon the record a second trial must therefore have resulted similarly to the first. This case should be read in connection with Ludwick v. Huntzinger, infra, pp. 624, n., 629, n. 3. ' Thus in Friedly v. Scheetz, 9 Serg. & Rawle, 161, where (as also in Auwerter v. Mathiot, id. 403, and Weidler v. Farmers' Bank of Lancaster, 11 id. 134) the doctrine was held not to apply to purchasers at a sheriff's sale, Mr. Justice Duncan said : " Steinhauer v. Witman is not well understood. It does not go to the wild length as some have supposed, that a man who purchases a title with all its defects and imperfections, and whose conveyance contains no covenants of warranty, is not bound to pay the bonds he has given for it. For Mr. Justice Yeates, the great advocate for the departure from the general rule, both of law and equity, of caveat emptor in the sale of lands, yet restrains its operations, for he puts it on a very rational principle. The obvious and plain rule, he says, is, what was the true meaning of the contracting parties ; was it contemplated mutually that the purchaser should hold the land under a good title, or that he should run his chance of getting a title, and be exposed to all hazards ? " So in the case of a sale by authority of the Orphans' Court, the rule of caveat emptor is of course held to apply ; Bashore v. Whisler, 3 Watts, 493 ; also Fox V. Mensch, 3 Watts & Serg. 446 ; King v. Gunnison, 4 Barr, 171 ; Kennedy's Appeal, id. 149. So in cases of sales by sheriffs, commissioners and the like, the purchaser, from the very nature of the transaction, necessarily buys at his own risk, and cannot detain the purchase-money under any circumstances by reason of incumbrances or defects of title; Friedly v. Scheetz, 9 Serg. & Rawle, 161, and supra, p. 51. The converse of this rule applies in cases of a partition and exchange, in both of which a warranty is implied ; Seaton v. Barry, 4 Watts & Serg. 184. But it has been well said by Gibson, J., that " the greatest prac- tical evil of the doctrine (of Steinhauer v. Witman) is that it subjects the con- tract to the control of a jury, prone to forget that to cut a man loose from his bargain from motives of humanity is the rankest injustice ; and from this it would seem sound policy to extend it no further than it has been already carried ;" Lighty V. Shorb, 3 Pa. 451. ' See Lloyd v. FarreU, 12 Wright, 73. TO DETAIN PURCHASE-MONET, ETC. 623 title, may defend himself in an action for the purchase-money by showing that the title was defective, either in whole or in part, whether there was a covenant of general warranty or of right to convey, or quiet enjoyment by the vendor or not, and whether the vendor has executed a deed for the premises or not." ^ The cases can perhaps be divided into three classes : — First. Where the defect or incumbrance is unknown. Second. Where there is a known defect or incumbrance and no covenant. Third. Where there is a covenant against a known defect or incumbrance. First. Where the defect or incumbrance is unknown to the pur- chaser, it is of course impossible that he could have intended to run the risk of it, and hence two questions arise : first, what de- fects or incumbrances will entitle the purchaser to detain the pur- chase-money ; and, secondly, what will be deemed an absence of notice on his part. With respect to the character of the defect or incumbrance,^ although it is at times said that the contract is still executory as to the unpaid purchase-money, yet this must not be understood to mean that a purchaser will, after the execution of his deed, have a right to detain the purchase-money in every case in which equity would refuse to decree specific performance by him. While on the one hand it is not necessary that an eviction should have taken place,^ or the incumbrance have been paid off by the pur- ' Youngman v. Linn, 2 P. F. Stnith, 413, per Woodward, C. J. ' It is scarcely necessary to say that the character of the defect or incum- brance must be lawful, as distinguished from a tortious interruption ; supra, p, 133 ; Spear v. Allison, 8 Harris, 200. ' Carnahan v. Hall, Addison, 127 ; Goucher v. Helmbold, 1 Miles, 407 ; Hart V. Porter, 5 Serg. & Rawle, 201 ; Share v. Anderson, 7 id. 61. " The effect of in- cumbrances," it was said in the latter case, " as showing failure of consideration, or a defect in the title, is certainly different in Pennsylvania from what it is in England ; there, an eviction at law is an indispensable ingredient of a claim for relief against payment of the purchase-money. Here, it is sufficient that eviction may take place,'' and this was repeated in Beaupland v. McKeen, 4 Casey, 130, but it was added with great correctness by Woodward, J., who delivered the opinion, " This is a very delicate ground on which to administer justice to vendors and vendees, for in determining the possibility of an eviction we have not before us the paramount claimant on whose will and rights the 624 THE purchaser's right at law chaser,! yet on the other, it will not be sufficient that the title can be shown to be merely doubtful, or the incumbrance merely con- tingent,^ and, unless its character be such as to defeat the purchase, liability to eviction depends. Possibly he has no rights, as would appear the moment he attempted to assert them — or if he have rights it is possible he may never a'ttempt to assert them — and in either case it vrould be against conscience and equity to allow the purchaser to keep the land, on which so unsubstantial a cloud rests, and the price also which he agreed to pay to the party who put him into possession." The purchaser may of course by his own acts deprive himself of his defence from payment of the purchase-money, as in Gilkeson v. Snyder, 8 Watts & Serg. 200, where a third person having advanced money to the vendor in part payment of the purchase-money, upon the representations of the 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 Whart. 26, the defendants gave ten bonds, each to secure S500, for the purchase-money of a house, which they soon after discovered had been previously mortgaged by the vendor to the Bank of Pennsylvania for $2,470. The vendor thereupon conveyed to the defendants other premises, in order to indemnify them from this mortgage, and the defendants at different times thereafter paid off the respective amounts of several of the bonds to the persons to whom they had been assigned by the vendor. The premises which had been conveyed by way of indemnity were afterwards sold, under prior incum- brances, for less than the amount required to satisfy them, and the house was soon afterwards sold by the bank under its mortgage for less than the amount due upon it. Under these circumstances it was held by the court, reversing the judgment below, that the defendants were not entitled to any defence from pay- ment of the purchase-money." ' Thus in Poke v. Kelly, 13 Serg. & Uawle, 165, although the purchaser had actually paid off an outstanding mortgage, it was held by the court that its pay- ' ment was not necessary in order to enable the defendant to deduct its amount from the purchase-money. So in Roland v. Miller, 3 Watts & Serg. 390, where the title of the vendor was subject to charges in favor of the heirs of the former owner, a conditional verdict was found for the plaintiff, with stay of execution until releases from these heirs should have been obtained. 2 Culler V. Motzer, 13 Serg. & Rawle, 356 ; Penn v. Preston, 2 Kawle, 19. " I do not wish," said Kennedy, J., in Ludwick v. Huntzinger, 5 Watts & Serg. 68, "to be understood as saying that a superior title outstanding in a third per- son, when shown clearly to exist and that he claims the land by virtue of it, w not be a good defence against payment of the purchase-money or any portion thereof, though a deed of conveyance has been executed by the vendor to the vendee, unless it was explicitly agreed and understood between them at the time that the vendee was to take the title of the vendor, such as it was, at his own risk ; on the contrary, I admit that, according to the authorities, it will be a good defence. But 1 wish to be distinctly understood as laj'ing down the prin- ciple that in order to make such outstanding title a good defence, in such case§ it must be clearly shown to be indubitably good, and that the fend is actually TO DETAIN PURCHASE-MONEY, ETC. 625 (as for example by requiring the whole of the unpaid purchase- money for its removal), the purchaser is not allowed on this ground claimed under it. It is proper however to observe that a different principle governs where the contract for the purchase of the land remains in fieri, and the action is brought on the contract itself with a view to 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 doubtful, the vendee will not be held bound to pay the purchase-money for it; Stoddartu. Smith, 6 Binn. 365 (and see supra, p. 665), unless it should also appear that he had expressly agreed to do so; Dorsey u. Jackman, 1 Serg. & Rawle, 42; Pennsylvania v. Simms, Addison, 9" (for the point actually decided in this case, see supra, p. 618) ; and these views were cited and approved in Crawford v. Murphy, 10 Harris (Pa.), 87, and Beaupland «. McKeen, 4 Casey (Pa.), 131 ; Youngman v. Linn, 2 P. F. Smith, 413. In Brick B. Coster, 4 Watts & Serg. 494, the court held an affidavit of defence insufficient, because it did not allege the validity of the adverse claim, or at least the defendant's belief in their validity. The remarks of Yeates, J., in Stoddart v. Smith, that " a man will not be compelled to pay for lands which he has purchased, though even with general warranty, where it plainly appears that he cannot obtain a good right therefor," were obiter dicta in the case, which was one where no deed had been executed, and they must be considered as limited to the application pointed out in Ludwick v. Huntzinger. The distinction noticed in that case as to the rights of the parties while the contract is still executory, and after it has been consummated by the execution of the deed, although by no means so broad a one as exists elsewhere (see supra, p. 567 et seq.), yet still is recognized to a greater extent in Pennsylvania than the language of some of the earlier cases would seem to imply. " If the vendee discovers," said Kennedy, J., in Moore ». Shelly, 2 Watts, 257, in speaking of an executory contract, " before he has paid the consideration or any part of it, that the property is under incumbrances which the vendor cannot discharge, he has a right to insist upon rescinding the contract, and may therefore refuse to pay for it, or to do any thing on his part towards carrying it into execution." So in Withers v. Baird, 7 Watts, 229 ; Colwell v. Hamilton, 10 id. 413 ; Gans v. Renshaw, 2 Barr, 34 (unless the purchaser retain possession of the land, and buy in the outstanding claims, in which case he will of course be compelled to pay the price agreed on, with a deduction for the amount thus paid by him, Renshaw v. Gans, 7 Barr, 117, infra, p. 626), and this is the general principle which is everywhere observed; supra, p. 123. But, as was said by Sergeant, J., in Magaw V. Lothrop, 4 Watts & Serg. 321, " if he accept a deed under the con- tract, the vendor may sue for the purchase-money on bond or otherwise, though if it shouM turn out that there was a defect of title or outstanding incumbrance, he would be entitled to recover, the jury allowing to the defendant a deduction equivalent to the value. It would be no absolute bar to the action to say that at the time the action was brought the plaintiff' had not conveyed a good and sufficient title, and this was the case of Hart v. Porter, 5 Serg. & Rawle, 201." Magaw V. Lothrop proceeded upon the principle in equity that in a suit for specific performance the vendor may perfect his title at any time before final decree. Where however the incumbrances are not removed until after suit is 40 626 THE purchaser's right at law to rescind the coiitract,i but can only defend pro tanto, and the measure of damages which he will be entitled to defalk against brought the purchaser is entitled to costs ; Poke v. Kelly, 13 Serg. & Kawle, 165 ; Withers w. Atkinson, 1 Watts, 248. ' Harper v. Jeffries, 5 Whart. 26, supra, p. 624 ; see also M'Ginnis v. Noble, 7 Watts & Serg. 454; Renshaw v. Gans, 7 Barr, 117; Dentler «. Brown, 1 Jones, 298 ; Garrard v. Lantz, 2 id. 192 ; Mellon's Appeal, 8 Casey, 127. In M'Ginnis v. Noble, supra, the defendant was sued on two bonds, amounting to $3,000, given for the purchase-money of land, which was subject to a judg- ment 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 total failure of consideration, but the court said, " The defence, it must be remembered, is purely equitable, and the inquiry is what would a chancellor do under such circumstances ; on what terms and to what extent would he afford equitable relief? It strikes me most forcibly that all the vendee has a right to require is to be placed in the same situation he would be in had he paid the incumbrances without suit ; and in that case, it must be admitted, the measure of equitable relief would be precisely the money paid, and the necessary expenses, and no more. The vendee, it is true, is in no default, because no part of the purchase-money was then due, and consequently he was not bound to pay the incumbrances, as he had nothing in hand to pay them with. He might therefore, it is admitted, have suffered the land to be sold with a clear conscience, and if at the sale by a judicial process a stranger had purchased, no blame would be imputable to him ; the defence would go to the whole considera- tion, for a man is not bound to pay for what he has not received. The bonds are given for the purchase-money of the land, and having lost the land, without any default of his own, it would be inequitable and unjust that he should be com- pelled to pay any part of the purchase-money. But will equity interpose further than for the purpose of protecting him against any loss he may have actually sustained ? We think not. The vendee cannot justly complain that he is not permitted to obtain title to land. for $750, for which he agreed to give $3,000. In both cases a court of equity relieves to the extent of the vendee's losses, viz., to the amount of $750 in one case, and for the whole consideration in the other. The failure of consideration is total in the one case, and pro tanio in the other. Even-handed justice requires that while on the one hand he is not suffered to lose, on the other, he shall not be allowed to gain any thing by the sale. He was, I repeat, not bound to purchase, but as he has chosen to do so, he must be content with a deduction from the purchase-money of the amount actually paid, with a reasonable allowance for expenses incurred in the extinguishment of the incumbrances, for to that extent he is injured and no more." In Garard u. Lantz, supra, the court, after referring to the authorities just cited, said that they "establish the distinction that where the vendee himself becomes the purchaser at the judicial sale, he remains liable to the vendor for the residue of the purchase-money unpaid, but if the land be sold to a stiano-er, this liability depends on the inquiry whether at the period of the last sale the vendee had in his hands, of the consideration of his purchase, a sum sufficient to extinguish the incumbrance." Where however the incumbrance on the land ETC. 627 the unpaid purchase-money is the same as that which has been heretofore referred to as recoverable upon breaches of tlie cove- nants for title. ^ With respect to what will be deemed to be notice on the part of the purchaser, it is now held that mere constructive notice will not be sufficient to deprive a purchaser of relief under the doctrine we are now considering.^ In a case^ where the land was, under a decree of the Orphans' Court, subject to a charge in favor of the ven- dor's co-heirs, it was argued that the purchaser had notice by the record of the existence of the incumbrance, but the court held that it was not pretended that the defendant had any actual knowledge of the incumbrance at the time of the agreement for the pur- chase, or even at the time that he received the deeds from the plain- is greater in amount than the unpaid purchase-money, the vendee has an obvious right to treat the contract as rescinded; Garrett v. Cresson, 8 Casey (Pa.), 375. ' Supra, pp. 283, 607. Thus in Stehley v. Irvin, 8 Barr, 500, the owner of a mill and of a tavern constructed a pipe to carry water from the former to the latter. He then sold the tavern to one purchaser and subsequently sold the mill property to another. The latter had no notice of the easement, and in an action for the purchase-money, it being proved that the existence of the easement would lessen the benefit of his purchase, the jury was instructed that the value of the easement might be deducted from the amount of the purchase-money, and this instruction ■was affirmed on error. So in Beaupland v. McKeen, 4 Casey (Pa.), 134, it was said by Woodward, J., in delivering the opinion of the court, " The rule that applies to damages on breaches of covenants for title is applicable here, and according to that either party may produce evidence to show the relative value which the part taken away bears to the whole, and this, as was said by Kent, C. J., in Morris v. Phelps, 5 Johns. (N. Y.) 56, operates with equal justice as to all the parties to the conveyance. In Lee v. Dean, 3 Whart. 331, Judge Ken- nedy reasserted the rule with great emphasis as applicable to a case untainted with fraud. The relative value of the part to the whole is to be estimated with regard to the price fixed by the parties for the whole, s. P. in White v. Lovvry, 3 Casey (Pa.), 256. The whole purchase being assumed to be worth the price agreed on, what part of the price would fairly be represented by the part taken away ? This was the question in Stehley v. Irvin, 8 Barr, 500, though the case is so defectively reported that the point ruled is scarcely discernible. It is com- petent for either party, under this rule with its limitation, to give evidence of the peculiar advantages or disadvantages of the part lost ; and the inquiry should not be unduly restrained whilst it is confined to the proper point, but undue latitude ■was allowed to it when the cost of erecting a saw-mill on an adjoining tract was gone into." " Banks ». Ammon, 8 Casey, 172. ' Koland v. Miller, 3 Watts & Serg. 390. 628 THE puechaser's eight at law tiff. Indeed, neither of the parties seemed to have had a knowledge of the same until some time afterwards. This being the case, it could not be supposed that any covenant contained in the deeds was taken or inserted specially with a view to protect the defendant against the effect of it. The case then fell, it was said, witliin the authority of Steinhauer v. Witman. So where the incumbrance appeared on the face of recorded deeds which lay in the line of title, it was held that though constructive notice to the purchaser, it was not such actual knowledge as would imply the consent of the pur- chaser and his intention to take the risk of the title.^ Had he taken a covenant that would have covered the defect, the implica- tion of actual knowledge would have been irresistible.^ And it has been recently said that " where a purchaser is only chargeable with constructive notice of a defect in the title, there is no reason for a presumption that he binds himself to pay the pur- chase-money, no matter what may prove the defects of title. It is only when he has actual knowledge of the defect, that he is pre- sumed to waive full compliance with the covenant of his vendor." ^ Second. Where there is a known defect or incumbrance and no covenant, it has been already shown * that the rule as generally settled elsewhere than in Pennsylvania with respect to a purchaser's right to detain the purchase-money is, that if the defect or incum- brance be not covered by his covenants for title, the presumption that he intended to run the risk of it is so strong as to admit of no evidence to the contrary,^ and the purchase-money cannot be de- * Murphy v. Richardson, 4 Casey, 293. A dissenting opinion in this case will be found in 2 Phila. K. 419. ' Citing Fuhrman v. Loudon, 13 Serg. & Rawle, 386. See infra, p. 639. Thus in Ker v. Kitchen, 5 Harris, 433, the purchaser accepted a deed which expressly referred by recital to a trust deed, giving its date and record, and which contained a covenant which included the defect, and it was held that in the absence of evidence to the contrary the purchaser must be considered to have had notice of the trusts in the deed, and to have protected himself against them by taking the covenant for quiet enjoyment; see as to this, infra, p. 629. ' Thomas v. Harris, 7 Wright, 231. When the earlier editions of this treatise were published, the law as to constructive notice had not been settled as now • stated in the text. * Supra, p. 567. ' Where there is a deficiency in the quantity of the land conveyed, and there is no covenant that there shall be such a quantity, the purchaser cannot of course detain the purchase-money ; Dickinson v. Voorhees, 7 Watts & Serg. 367 ; see supra, p. 623. TO DETAIN PUECHA8E-M0NET, ETC. 629 tained under any circumstances into which fraud has not entered ; and in tlie enforcement of these principles equity follows the law.i It would seem, however, that while such a principle has not been recognized in Pennsylvania to its full extent with respect to a de- fect of title, its application has been altogether denied with respect to an incumbrance. It has been said ^ that the intent that the pur- chaser was to run the risk of the title might be foArly inferred when he knew of the defect at the time of the purchase, and made no provision against it,^ and in a subsequent case, Gibson, C. J., ' In either of these cases, whether there are covenants or not, the fact of the purchaser's notice is one wholly immaterial ; as, if he be entitled to damages, his notice cannot prejudice that right; supra, p. 116 et seq. But under what have been styled the equitable 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 Yeates, J., in Steinhauer v. Witman, there is a locus penitentice until the money is paid. Hence must arise the question as to the real nature of the contract between the parties, and whether the purchaser agreed to run the risk of the title. In such a question the fact of the purchaser's notice must necessarily be a principal ingredient, and the absence of a covenant does not possess the conclusive and binding effect that would elsewhere be given to it. ' Hart V. Porter, 6 Serg. & Rawle, 204, cited supra, p. 621 ; and see the remarks on this ruling by Woodward, J., in Murphy v. Richardson, 4 Casey, 293. ' So in Ludwick v. Huntzinger, 5 Watts & Serg. 58, the defendant in an action on his bond, given for the purchase-money of land conveyed to him with special warranty, offered to prove an informality in a prior tax sale and a want of identity of the subject of the contract with the land purported to be conveyed. The Supreme Court held this evidence was properly rejected by the court below ; that the evidence of a defect of title must be such as entirely to overcome that violent presumption which arises in favor of the defendant's having received a good title for the land, from the circumstance of his having, after inspecting it, approved it by accepting the deed conveying it to him, and thereupon giving his bond for the purchase-money ; and if the purchaser took no covenant for his protection, " it goes strongly to prove that he agreed and was satisfied to take the title of the vendor pretty much at his own risk. 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 bargained for, even if he should afterwards lose the land by reason of a superior title to it in a third per- son.'' So in Ross's Appeal, 9 Barr, 497, it was said, quoting the language used 630 THE puechasee's eight at law referring to this expression, emphatically repeated that where there was a known defect but no covenant or fraud, the vendee could avail himself of nothing, being presumed to have been compensated for the risk in the collateral advantages of the bargain, ^ and these words have been very recently quoted with approbation.^ in Smith v. Sillyman, 3 Wliart. 589, that where the defect is known and not pro- vided for, the presumption is irresistible, in the absence of express stipulation, that the vendee relied on his own judgment as to the soundness of the title. ' Lighty». Shorb, 3 Pa. R. 451. "In Hart ». Porter," said Gibson, C. J., " it was said that where a purchaser knows of a defect or incumbrance at the time of the bargain, without stipulating for a covenant or other security against it, he necessarily consents to take the risk of it on himself. An intendment to that effect is consistent not only with the reality of the transaction, but with the analogous principle of Vane u. Lord Barnard, Gilb. Eq. Eep. 6 (supra, p. 91, ra.), in which the purchaser, having taken an agreement for a special covenant against a contingency that might never happen, was not allowed to detain the purchase-money as an additional security, because his consent to rely on the covenant alone was thought to be deducible from the very nature of the transac- tion. Is not his consent to bear a risk, known to him at the time and not pro- vided against, equally deducible from the nature of the transaction ? Not only every scrivener but every purchaser is aware of the valueof a covenant, when a defect is known or suspected." In Beidelman v. Foulk, 5 Watts, 308, the ques- tion arose incidentally upon a point of evidence. Land which had been the property of an intestate was, after his death, sold with a covenant of special warranty by five of his heirs to the husband of the sixth, who brought an eject- ment 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 in- clude that part, but which, on the face of the deed, did not. One of the heirs being offered as a witness for the plaintiff, was rejected by the court below, on the ground that as the latter had given bonds to his vendors for the purchase- money he would, if he failed to recover the part in controversy, be entitled to a deduction for its value, and that the witness was therefore directly interested in th? event of the suit. But on writ of error Kennedy, J., who delivered the opinion of the court, held that under the circumstances the witness would be entitled to recover his full proportion of the purchase-money, without any deduc- tion 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 enjoyment of the privilege of which he now seeks to deprive him, yet requiring no provision in his contract for a deduction from or return of any portion of the purchase-money in case he should be unable to recover the disputed ground from the defendant, but, on the contrary, paying two-thirds of the purchase-money in hand, and agreeing posi- = Youngman v. Linn, 2 P. F. Smith, 413. TO DETAIN PURCHASE-MONET, ETC. 631 It has however been settled that the absence of a covenant and the presence of notice do not together form a conclusive pre- sumption that the title was to be at the purchaser's risk.'- Thus where the defendant, in an action on a mortgage given for the pur- chase-money of land sold with special warranty, offered in evidence a paper signed by the vendor some weeks before the execution of the deed, which stated that it had been represented to him by the defendant that a third party made pretensions to part of the land — that he, the vendor, believed such pretensions to be ground- less, 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, and then proved a loss of part of the land by eject- ments under this claim, and the expenditure of various sums in their defence, it was held that the evidence was properly admitted, notwithstanding it was objected that the execution of the deed, which contained no covenant including the defect, merged all prior articles. Such a decision could not have been made if the pur- chaser's notice and the absence of a covenant were deemed conclu- sive evidence that he was to run the risk of the title.^ tively to pay the remaining third on the death of the widow, 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 principle laid down in Fuhrman v. Loudon, 13 Serg. & Rawle, 386, and affirmed in Lighty v. Shorb, 3 Pa. R. 452, that " when the purchaser is aware of a flaw, and provides not against it, he takes the risk of it on himself; " see these cases cited infra, p. 638 et seq. 1 Drinker v. Byers, 2 Pa. 528. ' That the eminent judge did not mean by the expression in Lighty v. Shorb to say that where there was notice and no covenants the purchaser was estopped from producing evidence to show that he did not mean to run the risk of the title, is clearly shown by the previous case of Seitzinger v. Weaver, 1 Rawle, 884, where he said, " The presumption of law is that the acceptance of a deed in pursuance of articles is a satisfaction of all previous covenants, and where the conveyance contains none of the usual covenants the law supposes that the grantee agreed to take the title at his risk, or else that he would have rejected it altogether." It is then said that there may be cases (and Drinker v. Byers comes within this class) where the acceptance of a conveyance will be but part execution of the articles, as in Colvin ». Schell, 1 Grant's Cas. 226, where it was said, " It is argued that the conveyance showing no warranty against this injury, there is none. Generally, we presume that the contract to convey is merged in the conveyance, but there may be incidental covenants that are not so merged, n this contract to convey there is a covenant against this very injury, and it is found that the grantee in accepting the deed did not intend to relinquish it, and it is not merged." 632 So it has been said in a later case, " If a purchaser knows of a defect or incumbrance when he takes his deed, without stipulating for a covenant or other security against it, the presumption is that he assumes the risk. Such a presumption is not, however, conclu- sive, jwrn et de jure, — it may be rebutted." ^ The result therefore is, that where there is a known defect of title, and no covenant which includes it, the presumption is that the purchaser agreed to run the risk of the title,^ but this presumption is not so conclusive as to exclude evidence to the contrary. But it would seem to have been also held that where there is a pecuniary incumbrance, of an amount less than that of the purchase-money, and payable before or at the time when the pur- chase-money ought to be paid, no such presumption arises, and the burden of proof rests upon the vendor to show that the incum- brance was intended to be in addition to the consideration named in the deed, and that the purchaser took the land cum onere. Tliis was the decision in Wolbert v. Lucas,^ where the plaintiff having issued a scire facias to recover the balance due on a mort- gage given by the defendant for the purchase-money of land con- veyed to her with special warranty, the latter proved a mortgage given by a former owner of the land, which had been compulsorily paid off by her, in instalments, since the execution of the deed, and produced a witness, who swore that at the time of making the contract the mortgage to be given by her to the plaintiff being for the full value of the land, formed the whole consideration of the pur- chase. On the other hand, the plaintiff produced a witness who swore that the contract was, that the defendant would pay the par- amount mortgage — that she would be responsible for it, and would take it on herself.* The court below charged the jury that the only question was whether the defendant knew of the paramount mortgage at the time she purchased ; for if she did, she could not ' Thomas v. Harris, 7 Wright, 231, citing Lighty ». Shorb and Drinker v. Byers. " Quoted and approved in Speakman v. Forepaugh, 8 Wright, 363, which however was the case of an executory agreement. 3 10 Barr, 73. * The student may very naturally here recall the words of Gibson, C. J., heretofore cited, that " the greatest practical evil of the doctrine is that it sub- ects the contract to the control of a jury, prone to forget that to cut a man loose from his bargain from motives of humanity is the rankest injustice ; " supra, p. 627. TO DETAIN PURCHASE-MONET, ETC. 633 claim allowance for payments made by her on that account, there being no fraud or covenant. The jury having found for theplain- tiiF, the Supreme Court reversed the judgment, and held that if the defendant bought the premises for the amount of the mortgage given by her to the plaintiff, and that was the whole consideration, she ought not to pay more than she contracted for ; and if there was more to pay than her deed called for, the plaintiff was bound to show it satisfactorily to the jury.^ ' The court then went further, and added that under the evidence the defend- ant should have had the instruction of the court in her favor and a credit for all payments made by her under the paramount mortgage. As this decision was the subject of some professional comment, the author has thought it well to pre- sent the facts which appeared upon the record, somewhat more fully than is done in the report of the case. Moliere, the former owner, gave a mortgage to the Bank of North America for $3,867, and after his death the mortgaged premises descended to the plaintiff and defendant, as two of three heirs in intestacy. On the 26th of August, 1839, the plaintiff sold to the defendant his undivided third part of the premises by a deed whose consideration was expressed to be $3,000, and which contained a special covenant of warranty, and on the same day the defendant gave a mortgage to the plaintiff of two undivided third parts (viz., that which had descended to her, and that which she had just purchased) for the same amount, of which $500 was to be paid Nov. 20, 1839 ; $1,000 on Nov. 20, 1840; $1,000 on Nov. 20, 18il; and the balance of $500 on Nov. 20, 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 — To the Plaintiff. To the Bank. Nov. 20, 1840 $800.00 Dec. 24, 1839 $100.00 Feb. 11, 1841 15.10 Feb. 12, 1840 200.00 Nov. 20, 1841 805.00 Aug. 5, 1840 400.00 Jan. 15, 1841 400.00 Oct. 16, 1841 500.00 Aug. 19, 1842, in full .... 80.00 One-third of these payments to the bank the defendant claimed to deduct from the balance due on the plaintiff's mortgage, and called a witness who swore that he went with her to make the purchase — that she took the plaintiff's offer to sell his share for $3,000 ; — the witness thought that $2,500 was its value. The plaintiff then called a witness who swore that she was present when the con- tract was made — the plaintiff asked $3,000, and the defendant insisted on his taking less, saying there was a claim of the bank. She finally agreed to give $3,000, in four different payments, and to take the business of the bank on her- self. After the bargain was made she spoke of the amount to be paid to the plaintiff and the bank. On cross-examination, the witness stated that the de- fendant came three times — she said she would pay the claim of the bank — she would be responsible — she would take it on herself, what Mr. Moliere owed the 634 THE purchaser's eight at law The charge of the court below doubtless proceeded upon the language used in a previous case, tliat " if there was a known defect, but no covenant or fraud, the vendee could avail himself of nothing ; " ' and if the Supreme Court had modified this direction by holding that these circumstances cast upon the purchaser the burden of proving that he did not intend to run the risk of the incumbrance, the decision would perhaps have followed the cases which have just been cited. But it is obvious that it went beyond these cases, and would seem to establish the rule that where there is notice of a pecuniary ineumhrance and no covenant, these circum- stances, which elsewhere would be conclusive against the purchaser, do not in Pennsylvania even raise a prima facie presumption against his right to detain the purchase-money, and where the evidence is contradictory, the .question as to the terms of the contract is not to bank — she said the plaintiff was to have $3,000 paid to him in lawful money. The defendant's witness being recalled, then swore that he could not be mis- taken about the contract, the defendant thought she bought the plaintiff's share for $3,000; that was a full price for it; it might have been agreed that the de- fendant was to pay the bank mortgage as part of the consideration, but she felt sure she was not to pay any amount beyond the $3,000. Upon this evidence, the court below charged that if the jury believed the defendant had notice, the plaintiff was entitled to recover; while on the other hand the Supreme Court held that the defendant should have had a positive instruction in her favor. The cases, however, cited in the opinion were not similar in their circumstances to Wolbert V. Lucas. In Christy v. Reynolds, 16 Serg. & Rawle, 258, and Tod ». Gallagher, id. 261, the incumbrances were covered by the covenants. In Poke V. Kelly, 13 id. 165, no deed seems to have been executed, and if there were one, it must, under the terms of the contract, have containe'd a general warranty. In Withers u. Atkinson, 1 Watts, 236, the purchaser was ignorant of the incum- brances, relying on the vendor's statement that " there was not a judgment against him under the canopy of heaven ; " the incumbrances, moreover, in that case were all removed by the vendor before the trial. Forster v. Gillam, 1 Harris, 340, turned upon misrepresentation by the vendor ; there was a defect of title, and Burnside, J., who had also delivered the opinion in Wolbert «. Lucas, said, " A special warranty does not prevent a vendee from setting up a defence to the unpaid portion of the purchase-money, and in such a case the onus lies on the vendor to show he bought at his own risk." This, it is 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 he did not intend to run the risk of the title. ' Lighty V. Shorb ; see also Wilson v. Cochran, 10 Wright, 230, infra, p. 641 ; Youngman v. Linn, 2 P. F. Smith, 413. TO DETAIN PURCHASE-MONET, ETC. 635 be left to the jury as a question of fact, but the purchaser is, in every case, entitled to detain, unless his vendor can show satisfac- torily that he agreed not to do so. This decision therefore, if capable of being supported at all, must rest upon the ground that a distinction exists between a defect of title and a pecuniary incumbrance, and as, in an executory contract, the purchaser has an undoubted right either to have incum- brances paid off by his vendor, or to discharge them himself and deduct the amount thus paid from that of the purchase-money, so this doctrine must, it would seem, be applied to an executed con- tract, irrespectively of the terms in which it is expressed ; and although the purchaser's right, while the contract is executory, applies equally with respect to known defects of title as it does to pecuniary incumbrances, yet that the former, being insusceptible of definite valuation, are not thus to be presumed to have been ex- cepted from the consideration. ^ ' Such a distinction was expressly taken by the court. " This is not like the case of Lighty v. Shorb, so much relied on. There the defect was on the face of the title, purchased by the defendant, and the maxim of caveat emptor entered. Equity would not interfere, because it would have been changing the terms of the bargain. This case is very different. Here the plaintiff sold one-third of the premises for the consideration of $8,000, the price he asked for the estate, and for which she gave her mortgage." It ought to be distinctly observed that in Lighty V. Shorb the defect was covered by the covenants ; see infra, p. 638. It seems impossible that the decision of the court in Wolbert v. Lucas could in any way have proceeded upon the ground that the consideration named in the deed was conclusive evidence of its amount, as such is neither the law of Penn- sylvania nor does it generally prevail in this country ; see the cases cited supra, p. 258. The case of Ross' Appeal, 9 Barr, 491, which was decided but a few weeks before Wolbert v. Lucas, may also be referred to in this connection. Patterson having agreed to purchase a tract of land, entered upon it and partially built a furnace. He afterwards agreed to transfer his interest to Lyman, who was to succeed to all his liabilities for the purchase-money, and who subsequently, by a verbal arrangement, transferred to Marshall & Kellog all his interest in the land, and made a bill of sale to them of the fixtures. Lyman and Marshall & Kellog, both having subsequently made assignments for benefit of creditors, the assignee of the former claimed a dividend out of the estate of the latter, which was resisted on the ground that there were judgments against Patterson which were liens on the fixtures sold by Lyman. But it was also proved that at the time of the purchase Marshall & Kellog knew of these judgments and consulted counsel, who advised they were not liens ; and Bell, J., who delivered the opinion, said, "Marshall means that at the time of their contract with Lyman his firm had notice on the judgments recovered against Patterson, but not deeming them to 636 THE purchaser's right at law It -has however been more recently decided, and upon great apparent soundness of principle, that the doctrine of this case will not apply where the security for the purchase-money upon which the suit is brought is given by the purchaser after he acquires notice of the existence of the incumbrance.^ be liens on the land, lie disregarded them. It is obvious from this that neither of the parties imagined that Lyman had engaged to warrant his vendee's title, either to the land or the fixtures. Marshall & Kellog undertook to decide for themselves vphether the judgments were or were not incumbrances ; and never dreamed of looking to Lyman to guarantee them against a mistake in this par- ticular. But apart from the direct proof, the nature of the transaction shows this to have been so. The case presents the uncontradicted fact that Marshall & Kellog were to take the place of Lyman. As already said, Lyman intended to do nothing more than to transfer to them his interest, whatever it was, in the contract. Why then should he be made answerable for incumbrances not suffered by him, any more than for a defect of title ? The very character of the agree- ment repels such an idea, as is shown authoritatively in Smith v. Sillyman, 3 Whart. 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 his own judgment as to the soundness of the title. The same presumption is applicable to an incumbrance. Such an agreement amounts to a declaration by the vendee that he takes the property just as his vendor received and held it, and subject to all defects or hindrances not created by the latter.'' See Smith v. Sillyman, infra, p. 639, n. 4. It may be difficult to reconcile some of the expressions in the cases ; but in these, as in many other instances, the student may recur to the apt language of Gibson, C. J. ; " From a series of cases, the law has become a series of principles ; and to keep them in harmony with each other will conduce more to safety and certainty than would an implicit obedience in every case to precedent ; " Good v. Mylin, 8 Barr, 65. ' Lukens v. Jones, 4 Phila. R. 18. " The action in this case," said Hare, J., who delivered the opinion, " was on a note given for the purchase-money of land ; the defence an outstanding ground-rent alleged, and so far as the testi- mony of the witnesses examined for the defendant went, proved not to have been known at the time of the purchase. The defendant requested the judge before whom the cause was tried to instruct the jury that the verdict must be for the de- fendant, in consequence of this defect of title. This request was granted, but with the proviso that the jury might look at the note which had been given for the purchase-money and take its date, which was subsequent to the period at which the knowledge of the ground-rent came to the defendant, into considera- tion in finding their verdict ; and the only question now before us is whether there was error in the instruction thus given. " Lcjoking at the matter on principle, and apart from precedent, it would seem very obvious that a promise by a purchaser to pay a sum certain, after a defect in or charge upon the thing purchased brought to his notice, is evidence that he bought subject to the defect, or had no right to set it up as a reason for not ful- filling his promise. In speaking of it as evidence, I use the word as distinguished TO DETAIN PURCHASE-MONEY, ETC. 637 Third. While, on the one hand, the absence of a covenant which covers a defect of which the purchaser has notice, raises a pre- froiu absolute proof, and mean to speak of it as that which, though far from con- clusive, cannot be withdrawn without error from the consideration of the jury. It is however said that the case of Wolbert v. Lucas, 10 Barr, 73, establishes the opposite doctrine, that knowledge of an incumbrance at the time of receiv- ing a deed for land which has been purchased, and agreeing to pay the price, is no reason why it should not be set up as a defence subsequently to a suit for the purchase-money. If we look at the decision in that case, apart from the language of the judge who delivered the opinion, we shall find that the only point actually before the Supreme Court was whether the court below were right in the position that notice of an incumbrance at the time of buying precludes the right to deduct it afterwards from the purchase-money, and that every thing in the opinion which goes beyond this, and to the point that the jury should have been told peremptorily to find for the purchaser, may be regarded as having, more or less, the character of a dictum. But even if this be not so, and if Wolbert v. Lucas is to be regarded as establishing the general proposition that a man who agrees to give $10,000 for a house, and consummates the agreement by accept- ing a deed, with full knowledge that he is buying it subject to a mortgage for $8,000, can afterwards plead the mortgage as a defence to a suit for the pur- chase-money, it can only be because the law will, under these circumstances, imply a promise by the vendor to pay off or satisfy the mortgage within a reason- able period, and consequently regards the vendee as entitled to treat its continued existence as a breach of contract, which may be set up by way of recoupment or defalcation. Seen in this aspect the extreme position assumed in Wolbert v. Lucas may be reconciled with logic, if not with reason ; but it ceases to be appli- cable to a case like the present, where the note was given for the whole amount of the purchase-money long after the sale, and consequently tended to negative the idea that the purchaser was entitled to rely on the failure of the seller to ex- tinguish the incumbrance as a default, or as giving any right to an abatement of the price. "But however this may be, and whether a promise to pay a specific sum of money, with full knowledge of a defect of title, is or is not evidence that the promisor believed himself, and might therefore reasonably be presumed by others, to be without right to rely on the defect as a reason for not performing his promise ; there is another ground on which such a promise cannot be with- held from the jury, without error at all events, when it is, as in the present in- stance, put in the form of a promissory note payable infuturo, and consequently carries with it a new consideration in the shape of a postponement of the antecedent liability. For nothing is, as a general rule, better settled than that every ground of defence or objection to the performance of a contract is within the dominion of the party who is entitled to make it, and may be released or aban- doned by him at pleasure, in obedience to the well-known maxim, quisquis potest renunciare juri pro se introducto. It is indeed said in Jackson v. Summerville, 1 Harris, 359, that actual fraud forms an exception to the operation of this prin- ciple, and cannot be cured, nor the right of avoidance given by it waived or extin- guished by any subsequent act or agreement on the part of the party defrauded. 638 THE purchaser's right at law sumption that he intended to run the risk of it, so, on the other, where tlie purchaser has notice of either a defect or incumbrance and there is a covenant which includes it, tlie presumption arises that the covenant was expressly taken for protection against it, and the purchase-money cannot be detained unless the covenant has been broken ; ^ in other words, as has been clearly stated, " the purchaser shall he hound to perform his engagement wherever his knowledge and the state of facts continue to he the same as they were at the time of the conveyance."'^ Thus where the plaintiff had con- veyed to the defendant a 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 tlie jury believed these legacies were unpaid he was entitled to a deduction for the amount of them ; but the court charged that where the incum- How this is to te reconciled with the proposition, of which the hooks are full, that sales vitiated by fraud are voidable only, not void ; that the fraud cannot be set up as against an innocent purchaser, nor even as between the original parties without restoring the consideration ; and that no grossness or falsehood on the part of the seller will authorize the buyer to recover back the price on any other terms than those of restoring the property for which it is an equivalent, falls beyond the sphere of my functions to determine; nor need I inquire whether it was meant to assert that a man who has been injured by a fraud cannot put an end to his right to sue by executing a release under seal or accepting satisfaction in pais. For the case now before us is not a case of fraud, but of failure of consideration, and the cases of Duncan v. McCuUough, 4 Serg. & llawle, 485, and Chamberlain v. McLurg, 8 Watts & Serg. 36, expressly distinguish between such cases and those where the fraud is actual, and hold that the former may be confirmed subsequently, whatever may be the rule with regard to the latter. The objection that the waiver was without any new consideration has already been answered, and the result of the whole is that the rule which has been granted for a new trial must be discharged." ^ Youngman v. Linn, 2 P. F. Smith, 413. ° Per Gibson, C. J., inLighty u. Shorb, 3 Pa. R. 447, which was said in Murphy V. Richardson, 4 Casey, 293, to be " the best summary of the cases that has been given ; " and see Horback v. Gray, 8 Watts, 497 ; Ives v. Niles, 5 id. 328 ; Wilson V. Cochran, 10 Wright, 230; s. c. 12 Wright, 107. Indeed, to borrow the language of the late Mr. Wallace in speaking of the argument of counsel in a case depending on the doctrine of Fox v. Mackreth (1 Lead. Cas. in Eq.), " in explaining the reasons and operation of this principle, successive judges have only been able to vary and impair the language " of the learned Chief Justice who delivered the opinion in Lighty v. Shorb. ETC. 639 brances, with all the circumstances attending tliem, were known both by vendor and vendee, and the latter 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 subsisting, and it was left to the jury to determine whether both parties knew of these legacies chai'ged iipon the land, and whether any circumstance had occurred ren- dering tlie situation of the defendant moi-e perilous than at the time of giving his bonds for tlie purchase-money, and this direction the Supreme Court held to be correct.^ So where ^ a recital showed that the title to the land was in the wife of the patentee, who after her death conveyed it to two of his daugliters and their husbands, who in turn conveyed to tlie vendor, giving the bond of tlie paten- tee as a security for the title, which bond was handed to the de- fendant when he purchased and took a deed with general warranty, it was held that it was impossible to doubt ^ that the mutual under- standing was that the purchase-money was not to be detained as a security for the title.* So where the vendee accepted a convey- ' Fuhrman u. Loudon, 13 Serg. & Rawle, 886. So in Stroheoker v. Housel, 5 Pa. Law Jour. 327, the court charged, " If the jury believe that the eviction and all the facts connected with it were known to Housel before he bought of Strohecker, and that he took the warranty in his deed for the purpose of protecting himself against any eviction in consequence of the right of entry arising to Garber's heirs by virtue of that eviction, and believe farther that nothing has occurred 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.'' ^ Lighty V. Shorb, 3 Pa. 447. 3 In the absence, it is presumed, of evidence to the contrary. " It was said, moreover, that the mercantile character of the security given for the purchase-money, a draft of one of the partner vendees in the firm, at twenty- two days, sufficiently attested that nothing but punctual and prompt payment was considered to stand with the contract. So in Smith v. Sillyman, 3 Whart. 589, a vendor entered into articles to sell certain land to one who assigned the articles to the plaintiff, who entered into articles with the defendants, in which it was provided that the first payment of the purchase-money was not to be made to the plaintiff until they were fully satisfied as to the title. A deed was afterwards executed, with general warranty, by the original vendor to one of the defend- ants, who, it was held, could not in an action brought by tne plaintiff to recover the purchase-money due him set up as a defence that the title was defective, in consequence of which they failed in an attempt to recover the land by eject- ment. "From the very nature of the agreement, in the absence of any express stipulation to the contrary, it would seem that the vendor (of the .articles) did 640 THE purchaser's right at law ance which referred, by a recital, to a trust deed, giving its date and record, it was held that, in the absence of evidence to the con- trary, the purchaser must be considered to have had notice of the trusts in the deed, and to have protected himself against them by the covenant for quiet enjoyment.^ So where it appeared that the de- fendant, on making the purchase, was informed of an outstanding claim, and then took a deed with general warranty, it was held that his remedy must be upon his covenant, and that he could not detain the purchase-money.^ So it has been said that a vendee who takes a covenant against a known defect in the title shall not detain the purchase-money as a further secui-ity against it, for the reason that the covenant would be nugatory if he did.^ not intend to warrant the title to the premises, but that the vendees took the risk, relying on their own judgment as to the soundness of the title and for indem- nity on the original vendor. That this was the understanding is further shown from the agreement and the conduct of the parties. It is expressly agreed (and the security of the vendees is said to be the object) that the first payment shall not be made until the vendees are fully satisfied as to the title to the land. This shows that for this purpose they depended on their own judgment. When the title is fully established to their satisfaction (for so I read the contract), the vendees bind themselves to take the deed. By the agreement a reasonable time is allowed to investigate the title for themselves. Until then a defect 0/ title would undoubtedly be a good defence ; but after having examined it for themselves, and accepted the title, they are foreclosed from taking any defence, on the ground of a failure of consideration, so far as the present plaintiff is concerned. This construction is necessary for the protection of the plaintiffs, as they would have no remedy on the covenant against the original vendor." • Ker V. Kitchen, 5 Harris (Pa.), 433. See the case of Murphy v. Bichard- son, 4 Casey (Pa.), 298, supra, p. 628. ' Bradford v. Potts, 9 Barr, 37. ' Juvenal v. Jackson, 2 Harris (Pa.), .519. In Share v. Anderson, 7 Serg. & Eawle, 43, the vendor's title was subject to a charge in favor of his mother and sisters. At the time of making the contract of sale, he promised the purchaser that he would procure releases of these charges, but not being able to do so, the deed ■was executed with a covenant to indemnify against all estates, charges, incum- brances, &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 pur- chase-money, the defendant set up (besides an allegation of fraud) the existence of these charges and a quit-rent, which he contended had prevented him from reselling, which was the special object of his purchase. Under the charge of the court, whose judgment was afHrmed on error, the jury made a deduction for the amount of the outstanding charges, and also such arrearages of quit-rent as should be then due. " These, as being a present charge, were properly a sub- ject of defence, on the same ground as the liens created by the proceedings in the Orphans' Court were allowed, but the vendee could not retain to meet charges accruing afterwards.'' TO DETAIN PURCHASE-MONET, ETC. 641 The rule that " the purchaser shall be bound to perform his engagements wherever his knowledge and the state of facts con- tinue to be the same as they were at the time of the conveyance," is nowhere better illustrated than by the case of Wilson v. Cochran,^ which, when first presented in the Supreme Court,^ came up on error from a judgment entered below for want of a sufficient affi- davit of defence. In an action on a bond for the purchase-money of land which had been conveyed with a covenant of general war- ranty, the defendant in his affidavit alleged an eviction from part of the premises by reason of the existence and exercise of a para- mount right of way by a third person claiming under a grant from the purchaser's vendor. The court below entered judgment for the plaintiff, but this Vas reversed by the Supreme Court, who held that this right of way was a breach of the covenant of general warranty, and such an eviction as entitled the covenantee to dam- ages ; ^ the court below had, therefore, erred in not allowing him to recover them in this action, and the judgment was reversed and a procedendo awarded. Upon the subsequent trial, it appeared that the defendant had purchased with express knowledge of this right of way, and the jury having, found for tlie plaintiff (the vendor), this was sustained on error, and it was held that as the defendant had notice, the legal presumption was that he had already been compensated by reason of having paid a diminished price for the land.^ ' 10 Wright, 229. « See supra, p. 100. ' 12 Wright, 107. "The case as now presented, therefore," said the court, " is that of a purchaser with a covenant of general warranty attempting to detain purchase-money on account of a known incumbrance or defect. We were of opinion when the case was here before, and we still are, that a covenant of general warranty would embrace such a defect, though it be in the nature of an incorporeal hereditament, but manifestly no action could be maintained on such a covenant and therefore purchase-money cannot be detained by virtue of it, until after eviction, and the evidence here failed to prove eviction. Indeed, there could be no eviction of that which was never purchased or possessed, and therefore whilst a right of way successfully asserted against a vendee might be a breach of a covenant of general warranty if the purchaser had bought without notice of it, yet the law is that he shall perform his engagements whenever his knowledge and the state of facts continue to be the same they were at the date of the purchase. ... If the defendant bought with the road open before his eyes (and the necessary inference is that he intended to buy subject to the easement), the mere enjoyment of the road is not and cannot be an eviction. He has got all that he bargained for with his vendor, and therefore he should pay as he agreed. Until he is interrupted in something conveyed to him by his vendor, and he knew the latter could not con- 41 642 THE purchaser's right at law It may be observed of this well-decided case, that while the court say expressly that the existence and user of a paramount right of way was a breach of the covenant of warranty when the purchaser had no notice of it, yet that nevertheless this would not constitute an eviction when the purchaser had such notice ; but this is hardly the correct manner of stating the proposition, for in both cases he is equally evicted, and none the less so by reason of his knowledge, but in the latter instance he is not allowed to detain the purchase-money for the reason that the possible assertion of the par- amount right constituted one of the elements of the contract and was within the intention of both parties when the deed was made. But the very fact of the correct application of the Pennsylvania doctrine in this case demonstrates its want of logic. For if the pur- chaser, instead of using his covenant as a defence, had paid his purchase-money and sued on the covenant, his mere knowledge of the existence of the incumbrance would, according to a cloud of authorities, have been no bar to his recovery ,i and there are, there- fore, two peculiarities of the doctrine, first, that under some cir- cumstances the purchaser has greater rights as a defendant than he would have as a plaintiff, and secondly, that under other circum- stances he has greater rights as a plaintiff than as a defendant. Where, however, the covenant is actually broken at the time of the suit brought to recover the purchase-money, the purchaser will, on the general principles already referred to,^ and for the purpose of preventing circuity of action, be entitled to detain the purchase- money to the extent to which he would be at that time entitled to recover damages upon the covenant,^ and he is not in such case vey the road, he has no remedy on the covenant he took for his protection, and therefore no right to detain purchase-money.'' If it be desired to distinguish this decision from Wolbert v. Lucas, it may per- haps be thought that a distinction exists between a pecuniary incumbrance pay- able before the purchase-money fell due, and such an incumbrance as a road or other easement. ' Supra, pp. 113, 116 et seq., p. 95, &c. That is to say, his mere knowledge would not. But whether the right of way did or not enter as an element into the contract might perhaps, according to some authorities, have been the subject of proof; supra, pp. 95, 113, &c. ^ Supra, p 607 et seq. 2 Morris v. Buckley, 11 Serg. & Rawie, 168 ; Christy u. Reynolds, 16 id. 268; Todd «. Gallagher, id. 261; Ives u. Niles, 6 Watu-, 323; Poyntell v. Spencer, 6 Barr, 257. Morris v. Buckley was said by the court to come within TO DETAIN PURCHASE-MONEY, ETC. 643 obliged to restore the possession to his vendor before or at the time of availing himself of such a defence. ^ But when the purchaser's covenant is not thus actually broken, in other words, when he seeks to resist the payment of the pur- chase-money upon the Pennsylvania equitable doctrine which we have been considering, it has been held that in cases where that purchase-money is secured by a mortgage of the premises, upon which the vendor makes no personal demand against the purchaser, but merely asks, in default of payment of the consideration-money, the restoration of the property conveyed, the purchaser must either pay the purchase-money or restore the possession to the person from whom he received it.^ And it is apprehended that this result the principle of Steinhauer v. Witman, 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 ; supra, p. 151. So in Poyntell v. Spencer, supra, the purchaser had, to prevent an actual eviction, taken a lease under the para- mount title, which had been established by a judgment, of which his vendor, who had sold with general warranty, had notice. ' Poyntell v. Spencer, 6 Barr, 256. • ' Hersey v. Turbett, 3 Casey, 424. " The defence,'' said Lewis, C. J., who delivered the opinion, " rests upon a defect in. the title to the premises which will be noticed hereafter. The general rule is that whenever a defendant enters into possession of land under a contract with the plaintiff for the purchase of it, he will not be permitted to set up an independent title to protect a, hostile posses- sion. He must either pay the purchase-money or restore the possession to the person from whom he received it. . . . This principle applies with peculiar force in an action in which the plaintiff makes no personal demand upon the defendant, but merely asks in default of payment of the consideration-money the restoration of the property conveyed . A scire facias on a mortgage is an action of this character. It makes no personal demand on the mortgagor. He is not even liable for the costs of the suit. The judgment is de terris. It is to be levied exclusively on the mortgaged premises, and the sale conveys no further term or estate to the purchaser than the lands shall appear to be mortgaged for. See act of 1705, § 8, 1 Sm. 61. If neither vendor nor vendee had any title at the time of the mortgage, the latter could by no possibility pledge any title to the mortgage. It is true that equitable circumstances might exist which would call for the application of the principle that a title subsequently acquired by a vendor enures to the benefit of the vendee. This principle might apply in the case of a loan of money obtained on the faith of a representation that the mortgagor had an indefeasible estate in the premises granted in mortgage as a security for the money. But it can have no place where the mortgage is given merely as security for the purchase-money, to be paid for the premises mortgaged. The purchaser at the sheriff's sale under such a mortgage gets no better or other estate than the mortgagor had in the premises at the execution of the mortgage. It 644 THE puechaser's right at law would not be affected by the fact that the purchaser had already paid a portion of the consideration-money, for it will be remem- bered that, as respects so much of the purchase-money as has been already paid, the law of Pennsylvania is the same as it is else- where 1 — there is merely a loous penitentice as to so much as is unpaid. This, however, would not apply either in cashes where the covenant was actually broken, or where the purchase-money was secured by a bond or note, upon which the recovery would fasten upon the purchaser a personal liability. Before leaving this subject, it seems proper to consider the rights of the purchaser in cases where the consideration of the purchase is an annual ground-rent, instead of a gross sum.^ It is sufficiently evident that the different form which the consid- eration-money assumes should not deprive the purchaser of a defence in cases in which he would otherwise be entitled to it, for, as has been said, " the continuance of the rent, and the pay- ment of it, depend entirely upon the right of the grantee to the future enjoyment of the land under the title conveyed to him by the grantor, to whom and whose assigns the rent is to be paid," ^ and as has been more recently said,* " a sale on ground-rent differs from an ordinary sale only in this, that the consideration in the first is an annual sum perpetually charged on the land, instead ■of a gross sum paid or secured, as in the second." In the class of cases lastly referred to, viz., where the defect or incumbrance is covered by the covenants for title which the pur- chaser has received, and they are broken at the time of suit brought, it has been seen that the latter can, upon general principles, detain the purchase-money to the extent of the damages to which he would therefore be unjust, as a general rule, to involve the mortgagee in a dis- pute about the title, in a proceeding which only gives hira or the purchaser under his judgment a right to try the title in a subsequent action for the laud." ' Supra, p. 618. ^ The number of reported cases as to this is, it will be seen, very small. Brown v. Dickerson, 2 Jones, 372, supra, p. 162, seems to have been an action on the covenants for title. In Juvenal v. Jackson, 2 Harris, 519, the question turned principally upon whether the purchaser was entitled to the defence at all, as was also the case in Spear v. Allison, 8 Harris, 200. •■' Franciscus v. Reigart, 4 Watts, 116, per Kennedy, J. ; and see also IngersoU V. Sergeant, 1 Whart. 367. * In Juvenal v. Jackson, supra, per Gibson, C. J. TO DETAIN PURCHASE-MONET, ETC. 645 would be then entitled if he were suing as plaintiff for a breach of the covenants. Where, however, the consideration is a ground- rent, the amount of these damages would probably, in most cases, exceed that of the annual rent, and under these circumstances it is apprehended that unless the defect of title or incumbrance went so far as totally to defeat the entire estate conveyed, the defendant would be entitled, under the Pennsylvania statute of set-off,' to a certificate in his favor for the excess of these damages over the amount of ground- rent claimed" by the plaintiff. Where, however, the defect of title or incumbrance had totally defeated the entire estate, it is conceived that such a result would simply work a com- plete extinguishment of the ground-rent. These results however, it should be again observed, must, it is conceived, be confined to cases where the defect or incumbrance is covered by the cove- nants, and the latter are actually broken.^ Where, however, such is not the case, and the defence is, under the peculiar doctrine of the Pennsylvania decisions,^ an equitable one, resting upon failure of consideration, although there can be no certificate found in favor ofjthe defendant, yet he will, it is appre- hended, be entitled to defend from payment of the ground-rent, within the limits defined in the classes of cases already referred to,* so long as the defect or incumbrance remains. " If," as has been said, " the grantor of the land, his heirs or assigns, be evicted and deprived of the enjoyment of the land by any one having a title paramount, the rent ceases and becomes extinct." ^ So where there is an eviction of a specific part of the premises, the rent will be apportioned pro tanto.^ And if the purchaser have removed 1 The statute of 1705, Purrlon's Dig. 487. ' Thus in Garrison v. Moore, 1 Phila. E. 282, one of the defendant's pleas , " alleged that he had been obliged to pay a large sum of money for the prior and better title, as well as the costs of the ejectment," which was held bad on demurrer, for the court said " there was here no covenant of general warranty nor for quiet enjoyment except as against persons claiming under the grantor. Purchase-money cannot be recovered back for defect, in the title, unless there was fraud or warranty. The same principles which govern an action must apply to a set-off, and as neither fraud nor warranty is alleged, the matter contained in the plea cannot be available to the defendant as a set-off to the plaintiff's claim in this action." See also the distinction between a cross-demand and failure of consideration, noticed in Good v. Good, 9 Watts, 672 ; infra, p. 616, n. ^ Supra, p. 620. * Supra, p. 266, &o. ' Pranciscus v. Keigart, supra, p. 644, per Kennedy, J. ° Garrison ». Moore, supra. "We are of opinion," said the court, "that 646 THE purchaser's right at law the defect or incumbrance, or be, otherwise entitled to the equitable defence referred to, it is conceived that he would be entitled to detain the ground-rent for successive years, until its arrearages should be equal to the amount of his loss.^ the second plea, of an eviction lay 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." ' See, as to this, the case of Good v. Good, 9 Watts, 567, explained in 3 Watts & Serg. 472. The purchase-money was there secured by 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 the services rendered to the vendor to an extent exceeding the amount of the bond, and the jury found a general verdict for him. In a subsequent action on another of the bonds and the note the defendant rested upon the same grounds, and the plaintiff urged that the evidence of the recovery by the defend- ant in the previous suit, and the grounds on which it was based, was a bar to the allowance of the same defence in a subsequent suit, but the court below decided otherwise, and the jury found for the defendant, and certified that there was due him from the plaintiff $2,500 over and above the amount claimed by the latter. The judgment was however reversed by the Supreme Court, which held that as respects the set-off that must be presumed to have been passed upon by the former jury, "who must be deemed to have sustained the bond in the first instance, holding it to be satisfied by the set-off and no more. As to what was properly cross-demand, therefore, the defendant was concluded ; but we must be careful to distinguish it from what was properly failure of consideration. As a ground of demand, the one is legal and independent of the plaintiff's cause of action ; the other is equitable, inherent in all the securities founded on the same consideration, and therefore applicable to successive actions on any of them, till the defendant is compensated by defalcation to the extent of the loss. In this instance the defendant claimed the promise of his compensation for personal ser- vices and damages, for a breach of a covenant that a particular estate of dower in the land had been released, and they were settled in the previous action at what they were worth. But for failure of consideration the defendant is entitled, on the whole, to a deduction equal to the average value of the acres lost, deter- mined by the price originally stipulated, . . . and he is entitled to an allowance in this action for any part of it which has not been allowed him before." When the case went down again for trial, the court below conceived that in the proper application of these remarks the failure of consideration must be appor- tioned among the securities ratably, and directed the jury accordingly, but this judgment was reversed on error (3 Watts & Serg. 472), and it was said, ^er curiam, that the effort of the judge who delivered the foi^mer opinion was " merely to distinguish between the remedy for want of consideration and the remedy for cross-demand — not to establish a principle of apportionment, in a case involving the latter, between distinct securities for different parts of the original debt. The case did not call for it. It was indeed said that want of con- sideration furnishes a defence which is inherent in all the securities till full com- TO DETAIN PURCHASE-MONEY, ETC. 647 It is hardly necessary to repeat that the preced'ng cases in Pennsylvania must, with the exception of this last class, be regarded as exclusively local in their application. pensation for it be attained by defalcation ; and so, indeed, it is, so far as to dispense with a certificate of balance where the amount to be defalcated exceeds the sum sued for. . . . The principle of pro rata distribution of defalcation for failure of consideration among all the securities is one which this court did not mean to establish." 648 THE JUBISDICTION OF EQUITY CHAPTER XV. THE JURISDICTION OP EQUITY AS TO COVENANTS FOR TITLE.^ Covenants for title, like all other covenants, are, of course, mere contracts between the parties, though their savoring of the realty gives them certain incidents denied to others. For a breach of contract, the common law provided a single remedy, — a recom- pense in damages, — and as in many cases this proved insufficient, the jurisdiction of equity has become established in certain well- defined cases, administered through the means of specific perform- ance, injunction, and the reformation and rescission of contracts. And as the jurisdiction in these cases was originally engrafted on the common law by reason of the insufficiency of its forms of rem- edy, so, somewhat curiously, the common-law recompense in dam- ages has been in England recently engrafted by statute upon the jurisdiction of equity, by reason of the occasional insufficiency of the form of the remedy which equity affords. Thus by an act of Parliament, passed in 1858, commonly called " Lord Cairns' Act," ^ it is provided that " in all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract or agreement, or against the commission or continuance of any wrongful act, or for the specific performance of any covenant, contract or agree- ment, it shall be lawful for the same court, if it shall think fit, to award damages to the party injured, either in addition to or in substitution for such injunction or specific performance, and sucli damages may be assessed in such manner as the court shall direct." Subsequent sections provide the machinery for the assessment of ' Some portions of this chapter may be found scattered through the former editions of this treatise. The greater part of it, however, is entirely new. » 21 & 22 Vict. c. 27. AS TO COVENANTS FOR TITLE. (549 damages and the trial of questions of fact, either by a jury before the court itself, or by the court alone, or for the assessment of damages by a jury before any judge of one of the superior courts of common law at Nisi Prius, or 'before the sheriff of any county or city. This act, which is not retrospective, does not however extend the jurisdiction of the court to cases where there is a plain common- law remedy, and when the court would not have interfered before the passage of the act.^ Where, however, the court has jurisdiction to grant specific performance, it may award damages for non-per- formance of part of the contract in respect of which it could not have compelled specific performance.^ But a plaintiff will not be entitled to damages if he has done any act which would deprive him of his right to specific performance,^ and it is in the discretion of the court whether it will award damages under the act, or leave the plaintiff to obtain them at law,* and this, notwithstanding the subsequent act of 25 & 26 Vict. c. 42, known as " Sir John Rolt's Act," which provides that " in all cases in which any relief or remedy within the jurisdiction of the Court of Chancery is sought in any cause instituted therein, every question of law or fact cognizable in a court of common law, on the determination of which the title to such relief or remedy depends, shall be deter- mined by or before the same court ;" in other words, it is considered that as the relief in equity does not depend upon the mere ques- tion of damages, this act is not compulsory." "The object of Lord Cairns' Act, it will be seen," says an able writer,^ " is to enable the Court of Chancery to do complete justice in cases where it previously had jurisdiction, but where circumstances had occurred which disabled the court from decree- ing specific performance, and so rendered it necessary for the plaintiff to seek relief in a court of law for damages. If, for • Wicks V. Hunt, Johns. 872 ; Kogers v. Challis, 27 Beav. 175 ; Scott v. Ray- ment, Law R. 7 Eq. 112 ; Lewers v. Earl of Shaftesbury, 2 id. 270. ' Soames v. Edge, Johns. 669. ' Collins V. Stutely, 7 Weekly Rep. 710. * Durell V. Pritchard, Law R. 1 Ch. App. 244. 5 Johnson v. Wyatt, 2 De Gex, J. & S. 18; Swaine v. Great Nor. R. R., 33 Law Jour. Ch. 399 (which was argued by Sir John Rolt) ; Durell v. Pritchard, L. R. 1 Ch. App. 244; Mayne on Damages, 462 (2d ed.). 6 1 Lead. Cas. in Eq. 819 (4th ed.), note to Cuddee v. Rutter; see also Kerr on Injunctions, 221. 650 THE JURISDICTION OP EQUITY instance, before the passing of the act, upon a bill being filed for the specific performance of a contract for the purchase of an estate, it appeared that the vendor could not make a title to the estate, the bill would have been dismissed, and the vendor would have been obliged to resort to a court of law for damages ; under the act, the Court of Cliancery is able to do complete justice between the parties, by the award of adequate damage for the non-performance of the contract." And as this act does not diminish the rights of suitors, a plaintiff in equity, who before the act would have been allowed at the same time to sue the defend- ant at law for damages, may still do so, although he might under the act pray for and obtain damages in the suit.^ As to the specific performance of contracts, the maxim of the civil law, nemo est prcecise cogi ad factum, is equally the doctrine of the common law in England.^ That law (save in the case of replevin, which is scarcely an exception) affords, as has been said, but one compensation for every loss, viz., money. But as, from a very early day, it was felt that though one shilling might be as good as another, yet one estate in land, though of precisely the same market value as another, might be vastly different in every other circumstance that made it an object of desire, the doctrine was established, as early as the time of Richard II., that a court of equity had jurisdiction to enforce the specific performance of con- tracts for the sale of land.^ The Year Books tell us that this ' And hence in Anglo-Danubian Co. v. Rogerson, Law E. 4 Eq. 3, where A filed a bill against B for the cancellation of bills of exchange drawn by A and accepted by B in part performance of a contract, of which B failed to perform his part, and for an injunction to restrain B from parting with or suing on the bills, and pending the suit A commenced an action at law against B for breach of the contract, it was held (per Lord Romilly, M. R.) that the suit and the action were not for the same subject-matter, and an order obtained on the plaintiff to elect whether he would proceed at law or in equity was discharged. It is worthy of notice, though whether the omission is intentional or accidental can only be conjectured, that while Mr. Fry's preface to his treatise (published in 18o8) refers to Lord Cairns' Act as " a bill now pending in Parliament introduced by the Solicitor-General," and which was actually passed in that very year, the American edition, published thirteen years later (in 1871), whose aim, says its preface, is to place in the hands of the bar " a text-book which shall be at once illustrative of the law of England and of this country," contains not the slightest reference to Lord Cairns' Act, nor, of course, to the decisions under it. ^ Fry on Specific Performance, 1. ^ 1 Spence's Bq. Jurisd. of the Court of Chancery, 645. AS TO C0TENANT8 FOR TITLE. 651 jurisdiction was not asserted without opposition on the part of the common-law judges,^ but, at least as early as when Brooke's Abridgment was published, it seems to have been fully established.^ " There is no pretence," says a learned author, " for the com- plaints sometimes made by the common lawyers, that such relief in equity would wholly subvert the remedies by actions on the case and actions of covenant ; for it is against conscience that a party should have a right of election whether he would perform his covenant, or only pay damages for the breach of it. But, on the other hand, there is no reasonable objection to allowing the other party, who is injured by the breach, to have an election, either to take damages at law, or to have a specific performance in equity ; the remedies being concurrent but not coextensive with each other." ^ But while it may be easy to state this as a general proposition, it will be found that from an early time much difficulty has been, as it is still, felt in its practical application. ■ 21 Hen. VII. pi. 41 ; 22 Hen. VI. pi. 43. ^ Brooke's Abr. Trespass on the Case, pi. 72. Thus in Doctor and Student (which was published in 1518) it is said, " If a man sell his land by a sufficient- and lawful contract, though there lack livery of seisin, or such other solemnities of the law, yet the seller is bound in conscience to perform the contract. In this case, the contract is sufficient." Dialogue 1, c. 21, p. 63. With respect to chattels, also, such as had a peculiar and intrinsic value, not to be measured by money, the same rule was applied at an early day ; and we find cases as far back as the time of Henry V., where such a jurisdiction was exercised as to a gilt cross, a crucifix, a crimson bed then in Venice (1 Spence, 643), and the like, till in the well known and leading cases of Pusey v. Pusey, and Duke of Somerset v. Cookson, 1 Lead. Cas. in Eq., decided respectively in 1684 and 1735, the doctrine was placed beyond question. This, too, was not without question and opposition by the common-law judges, who claimed that an action of detinue was the proper remedy, even although — while the judgment recognized the plaintiff's right to recover the thing in specie — Xh& delivery could not, on refusal, be enforced, but damages only ; 1 Spence, 646. The most curious modern illustration of the doctrine as applied to personal property is to be found in the decisions in the Southern States as to slaves, where, after much discussion and some variety Cff decision, the weight of authority settled upon the ground that, although as a general rule no distinction would be observed between a slave and any other chattel, yet when there were peculiar circumstances which gave a pretium affectionis, — such as a slave being a family servant, a car- penter, a blacksmith, or the like, — specific delivery would be enforced ; botes to Cuddee V. Eutter, 1 Lead. Cas. in Eq. ■■' Story's Eq. Jur. § 717 a, and see supra, p. 272 et seq. 652 THE JURISDICTION OP EQUITY Thus, for example, the enjoyment of land may greatly depend upon the specific performance by another of his covenant to build thereon, and in some early cases such performance was decreed,^ but more lately the doctrine has been denied, and specific perform- ance refused ; for it is said, if one will not build, another may.^ On the other hand, the performance of a covenant to levy a fine or for farther assurance may be indispensable to the security of the title, and none can perform it but the party bound by the cove- nant,^ and it is obvious that a recovery in damages affords at most an uncertain if not inadequate recompense. So there may be cases of covenants sounding in damages, in its strict sense, whose performance will sometimes be enforced on principles of quia timet. Thus in the early case of Ranelagh v. Hayes,* the plaintiff assigned certain shares of the excise in Ireland to the defendant, who covenanted to save him harmless in respect of that assignment, and to stand in his place touching the pay- ments to the King,^ and the plaintiff being sued by the King for ^20,000, filed his bill that the defendant might be decreed to per- ' Story's Eq. Jur. § 725. = Id. § 726. ^ Id. § 729. Some text writers include under this head the specific performance of covenants not to do a certain thing, as not to build, and the like, but equity here interferes by injunction rather than by specific performance. ■• 1 Vern. 189 (1683) ; s. c, but less full, 2 Cas. in Ch. 146 ; 1 Eq. Cas. Abr. 17. * In the report in 2 Cas. in Ch. the covenant was stated to be " to save the Lord Ranelagh harmless touching three parts of a farm assigned to Hayes.'' It will of course be remembered that the excise in Ireland, created by the excise act of Charles II., was farmed out by that king, and part of the covenant, which is given in the note to the report in Vernon, was, that he, the defendant, should indemnify the plaintiff from all accounts, payments, charges and actions whatsoever on account of any moneys due by the plaintiff, the then late farmer of his Majesty's revenue in Ireland, for rent or otherwise. The care with which the jurisdiction was exercised will appear by the notes to the report: " The Lord Keeper gave as one reason for his decree ' that the computation of damages in such a, cause must depend upon examination of long and intricate accounts of the revenue of Ireland, which cannot be made upon a trial at law, and a jury cannot foretell what damages will after happen, but must give their verdict upon uncertainties, which will after occasion suits in thisicourt,'" and it was also ordered " that upon any suit or demand against plaintiff upon any matter relating to the said farm, he should give timely notice to the defendant or his clerk in court, to the intent defendant may take all necessary care in defence thereof, to prevent any damage that may come to him thereby." Whatever odium may have attached to Lord North's private and political life, yet while holding the control of the Great Seal, we are told that " on the whole, as an equity judge, he is to be praised rather than censured ; " 8 Campbell's Chancellors, 367. AS TO COVENANTS FOR TITLE. 653 form his covenant in specie. It was insisted on behalf of the latter that here was no proper subject for equity, nor any thing tliat the court could deci^ee, for here was no specific covenant, but only a general and personal covenant for indemnity, which sounded only in damages, which could not be ascertained in this court,^ especially as this case is, there being no breach of the covenant assigned in the bill, for a suit being brought by the King was not in itself any breach ; the defendant would defend the suit, and if nothing was recovered there was no breach. But Lord Keeper Guilford " thought fit to decree that the defendant should perform his cove- nants, and directed it to a master, and that toties quoties any breach should happen he should report the same specially to the court, and the court then might, if there should be occasion, direct a trial at law in a quantum damnifieatus, and he conceived it reason- able that the defendant should be decreed to clear the plaintiff from all these suits and incumbrances within some reasonable time,^ and he compared it to the case of a counter bond, where, although the surety is not troubled or molested for the debt, yet at any time after the money becomes payable the court will decree the principal to discharge the debt — it being unreasonable that a man should always have 'such a cloud hang over him ; " and other cases, on both sides of the Atlantic, have recognized and enforced the same doctrine.^ This class of cases must not, however, receive too broad and general an application. So far as they rest on the doctrine of quia timet, it has been well said of this head of jurisdiction that " though it is one which a court of equity has often exercised, yet it will be extremely tender in so doing, because it materially varies the agreement of the parties at the time «f the transaction."* And, as nothing is better settled, at least in this country, than that upon the ordinary covenant against incumbrances a plaintiff can recover but nominal damages unless he has suffered actual loss,^ ' Now altered by the act cited supra, p. 648. ' See as to this at law, Lethbridge v. Mytton, &c., supra, p. 94. ' See Lee v. Rook, Mosely, 318 ; Pember v. Mathers, Bro. Ch. 52 ; Gibson v. Goldsmid, 5 De Gex, M. & G. -757, supra ; Hatton v. Waddy, 2 Jones (Irish Ch.) , 541 ; Power v. Standish, 8 Ir. Eq. R. 526 ; Champion v. Brown, 6 Johns. Ch. (N. Y.) 406, where is an able opinion by Kent, C. ; Burroughs u. McNeill, 2 Dev. & Bat. Eq. (N. C.) 297 ; Griffin v. Orman, 9 Florida, 68. * Flight V. Cook, 2 Ves. 620, per Sir T. Clarke, M. R. ' Supra, p. 288 et seq. 654 THE JURISDICTION OP EQUITY — in other words, that the covenant is treated as a covenant of indemnity in the strict sense of the word — so it will be found that equity follows the law, and that, as a general rule, no prefer- ence is given to the covenant against incumbrances over any of the other covenants for title,^ and that relief will not be granted upon the mere apprehension of damage. Thus in a case in New York, the complainant's bill set forth the existence of a quit-rent upon the land which had been conveyed to him with all the cove- nants for title, and prayed that the defendant might be decreed to pay and satisfy it and have the same cancelled of record, and hold the plaintiff harmless therefrom, to which the defendant dewiurred, on the ground that the purchaser's remedy was at law upon ' the covenants, and tlie court dismissed the bill, saying, " It is said, however, that a court of equity will decree the performance of a general covenant of indemnity, though it sounds only in damages, upon the principle on which they entertain bills quia timet. Whether this be so or not, the difficulty is that there is here no covenant of indemnity in the proper sense of the term. In one sense, all the usual covenants in a deed may be termed covenants of indemnity ; that is, they are designed to protect the purchaser to a certain extent against the failure of title, or an eviction, or against incumbrances ; but they afford an indemnity in no other way than every other contract or agreement does, viz., by the right to recover damages for the breach or non-performance, and this deed contains no other than the usual covenants." ^ So in a case in Ohio, where the defendant conveyed to the complainant with cove- nants that he was the lawful owner, had good right to sell, and of warranty, and the latter tiled a bill setting forth that a widow had obtained an assignment of dower in the premises, for the payment of which a certain annual charge had been imposed upon the land, and prayed a specific performance of the covenants, the bill was ' Except, of course, that for further assurance, as has been just seen. It may be here remarked, in passing, that as respects the covenants for seisin, of right to con- vey and against incumbrauces, wherever the doctrine prevails that they are broken as soon as made, and therefore turned into choses in action, it is obvious that equity cannot enforce the performance of that which has ceased to exist, and wherever such a doctrine is recognized, there can be no room for the jurisdiction of equity as to the specific performance of these covenants. ^ Tallman «. Green, 3 Sandf. 437. The general doctrine, though not with respect to covenants for title, was also applied in the recent case of Rector of Trinity Church v. Higgins, 4 Rob. (N. Y.) 372. AS TO COVENANTS FOB TITLE. 655 dismissed, the court saying, " There is a well-established chancery jurisdiction over certain covenants. The Chancellor will exercise a restraining power where the covenantor, contrary to his stipula- tion, disturbs the tenant by his own act, and he will enforce the specific performance of the covenant for further assurance. But we find no case of interference on this side of the court in relation to the covenant of warranty." ^ Other cases have proceeded upon the same principle,^ and any in which a different course has been taken must be deemed to be exceptional, and to rest upon their own peculiar circumstances.^ \ Tuite V. Miller, 10 Ohio, 382. ^ Thus in Watkins v. Owen, 2 J. J. Marsh. (Ky.) 142, the complainant had received a deed with covenant of warranty, and filed his bill, setting forth that a suit was threatened by adverse claimants, and praying that their titles be examined and 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 ineffectual. A somewhat similar decision has been made in Bradford v. Long, 4 Bibb (Ky.), 225. ^ Thus in Barnett t;. Montgomery, 6 Monr. (Ky.), 327, the covenant was peculiarly framed. There had been an exchange of land with a covenant, giving, in case of eviction, the election to either party to restore the land taken in ex- change or pay its value. "It did not, therefore," the court said, "leave the amount of the liability of the warrantor to the conclusions of law upon the general expressions of the covenant, but fixed the nature and extent of his liability." There were also other circumstances in the case which rendered the interposition of equity necessary. Barnett and William Montgomery agreed to exchange certain tracts of land, and in case either should be taken by a prior claim, the other should revert to the former owner. Montgomery died without having completed the contract, leaving several children, of whom Thomas Montgomery entered into an agreement with Barnett, covenanting, on behalf of the other heirs, to convey to him the one tract as soon as all of them should be of age, while Barnett conveyed to him and another brother the other tract, with the covenant that if they were evicted, he, Barnett, would either reconvey the first tract to them, or pay its value with interest. Adverse claimants to the laud thus conveyed by Barnett established their claims in a suit which Montgomery brought against them, and he then filed a bill against his brothers and sisters and Barnett, whose object was, as respects the former, to obtain from them a conveyance of the tract which, on their behalf, he had covenanted to convey to Barnett, and as respects the latter, to compel him to comply with his covenant. " Under these circumstances," said the court, " and especially as the title to the land which was to be conveyed by Montgomery is in the heirs of his father, we can have no doubt as to the propriety of his applying to a court of equity for the purpose of obtaining the title from the heirs of his father, so as to enable him to comply with his covenant to Barnett, and for the purpose of compelling Barnett, under his covenant of warranty, to surrender his claim to the land which Montgomery 656 THE JURISDICTION OP EQUITY The covenant for further assurance would seem to be cast in a somewhat different mould from the other covenants for title. It is not a mere allegation that the title is good — that there is no in- cumbrance — not a mere promise to respond in damages if the other party should be evicted — it is a specific undertaking to execute such particular deed or deeds as may be necessary for the better and further assurance of the title to the purchaser. If per- formed, it may make a doubtful title marketable ; if unperformed, who can measure the damages to be recovered at law ? who can measure by money the difference between the value of a title good to keep, and yet not good to sell ? And hence it will be found that from an early day down to the latest cases, there has been a disposition in courts of equity to en- force the specific performance of covenants for further assurance. Thus where in the last century a tenant in tail executed a mort- gage in fee with a covenant for further assurance, and then became bankrupt, whereby his estate became vested in his assignees in bank- ruptcy, it was held that the latter might be compelled either to redeem the mortgage or to convey to the mortgagee the fee-simple into whicli by the operation of the bankrupt law the estate tail had been turned. ^ So where tenant in tail conveyed his estate in fee- simple for tlie benefit of his creditors with a similar covenant, and afterwards became bankrupt, his assignees were ordered to convey the fee to the trustees of the assignment.^ bound himself to cause to be conveyed, or to pay therefor according to the im- port of the warranty contained in this deed. The propriety of such an appli- cation will be the more striking when it is recollected that if, instead of bringing his bill in equity, Montgomery had brought suit at law upon the covenant of war- ranty and recovered compensation for the lost land in damages, the judgment might have been enjoined by bill in equity by Barnett, upon the grounds of defects and difficulties in Montgomery's title, thereby drawing part of the same matter now in contest before a court of equity for its consideration and decision. To avoid this circuity of action, and to enforce a specific execution of the covenants by each party, it was therefore proper for Montgomery to exhibit his bill in equity, shaped, as it is, with an aspect to finally settle the whole matter of contest." ' Pye V. Daubuz, 3 Bro. C. C. 595 ; see Tourle v. Rand, 2 id. 650. " Edwards v. Appelbee, 2 Bro. C. C. 652, n.- It will be remarked of these cases that the tenant in tail conveyed in fee — had he merely purported to pass his estate tail, the decisions would probably have been different; Davies v. ToUemache, 2 Jur. (N. S.) 1181 ; supra, p. 443, and infra, p. 658. This distinction does not seem to have been very carefully observed by Mr. Fry (Fry on Spec. Perf. 60), though it is noticed by Mr. Dart; Dart on Vendors (4th ed.), 741. AS TO COVENANTS FOB TITLE. 657 In these cases, it need hardly be said that the remedy at law, whether by action of covenant against the bankrupt or by proving as for a debt against his estate in the hands of his assignees,^ might produ'ce but a barren recompense.^ So where a grantor, liaving no interest in certain lands, conveyed them in fee with covenants for the title, including one for further assurance, and afterwards acquired the very estate which he pur- ported to convey, it was held that the grantee could maintain a bill to compel a conveyance of the subsequent title.^ So too where the defendant agreed to assign shares in a foreign gas company to the complainant, and covenanted to do such other and further acts as might be necessary to effectuate the transfer, the Lords Justices held, upon a bill filed for the specific perform- ance of the agreement, that the defendant was bound, under his covenant, to perform certain formal acts required by the laws of the country in which the company was located, and which were necessary to be performed in order to vest the shares in the com- plainant.* So in an early case in Virginia, a married woman, who was tenant in tail, joined with her husband in conveying the estate, with cove- nants for quiet enjoyment, of warranty and for further assurance. The husband also gave a bond conditioned that the entail should be barred. A subsequent statute, passed in 1776, declared that tenants in tail should hold in fee-simple, and the wife died after its passage, but without executing the assurance required of her, and upon a bill filed against her heirs a decree was made for the com- plainants.^ But however it maybe settled that equity will enforce the perform- ance of a covenant for further assurance when tlie evidence is clear that a certain assurance is necessary to perfect the title to a certain estate, it obviously will not enforce its specific performance when ' As to this see infra, p. 660, n. ' Of course, however, the mere insolvency of the covenantor will not of itself,, and irrespective of other circumstances, create, however it mayforiifi/ an equity. See infra. ' Smith V. Baker, 1 Younge & Coll. 223, supra, pp. 199, n. 2, and 438. ■• Gibson v. Goldsmid, 5 De Gex, M. & G. 767. '" Nelson v. Harwood, 3 Call (Va.), 342. Part of the decision was rested on the ground of the wife being bound because she had conveyed with a private ex- amination ; but as to this see supra, p. 638. 42 658 THE JURISDICTION OP EQUITY the result would be to enlarge the grantee's title beyond that in- tended to be conveyed. This has been well shown in a somewhat late case in England, where the defendant, who was tenant in tail in remainder, liiort- gaged his estate tail with a covenant for further assurance. Sub- sequently the estate tail became vested in him in possession, and a disentailing deed was tendered to him for execution, in order, as was claimed, that he might comply with his covenant, and on his refusal a bill was filed to compel its specific performance, which was demurred to for want of equity. Vice-Chancellor Stuart dis- missed the bill, saying, " The covenant for further assurance in a deed is a covenant intended to give full effect and operation to the estate and interest conveyed by the deed. Where it is sought to extend the operation of a general covenant of that kind to the execution of an instrument which would bar a title in others, which would continue but for the execution of the instrument sought to be executed, I have always understood that an express stipulation to that effect is necessary between the contracting parties The utmost ex- tent to which the court has gone, with reference to covenants for further assurance, has been to extend their operation to that very estate and interest which are conveyed by the deed ; " ^ and a decision to the same effect has been recently made in Oregon.^ And, as has been said in a previous part of this treatise,^ where the ' Davies v. ToUemache, 2 Jur. (N. S.) 1181, supra, p. 443. "The case of the plaintifiF," said the Vice-Chancellor, " depends entirely on the force and effect to be given to general woi-ds. Now the general words in this case unques- tionably extend to every estate and interest of every kind which the grantor in the deed of mortgage had. I have no doubt, as far as the intention of the par- ties is to be collected from the instrument, that there was no further intention than that this deed should apply to every estate and interest which could be affected by the conveyance of the grantor ; and, I think, under the covenant for further assurance, that of every estate to which the grantor was entitled, there should be a conveyance of the same force and effect with that which was made by the general deed, and that to such a conveyance under the covenant for further assurance, if the execution of such a conveyance be necessary to effec- tuate the intention of the parties, the grantee is entitled. " " Fields V. Squires, 1 Deady (C. C. U. S.), 366, 380, where it was obviously held that a covenant that " if the grantors should obtain the fee-simple from the United States, they would convey it to the grantee by a deed of general war- ranty," did not require the grantors to convey the fee which they subsequently .acquired from another source. 3 Supra, p. 200. AS TO COVENANTS FOR TITLE. 659 other covenants are limited to the acts of the vendor, the purchaser will have no right, under his covenant for further assurance, to require the removal of an incumbrance not created by the vendor. ^ The jurisdiction of equity in the specific performance of cove- nants for title (as of all other covenants) is, however, frequently exercised when necessary to the administration or the marshalling of assets. In such cases, as in a class already referred to arising under the bankrupt laws,^ the satisfaction of covenants is a neces- sary incident to the proper adjudication and adjustment of the rights of the parties before the court, and this, whether the convey- ance is a voluntary one, or rests upon a valuable consideration. Thus in Williamson v. Codrington, a testator living in Barbadoes executed, in 1715, a voluntary settlement of his plantation in America to trustees in trust for his two illegitimate children, with a covenant of general warranty.^ He was afterwards evicted, and died in England, and the cestuis que trust having filed a bill to have satisfaction of the covenant out of assets of his estate, it was, after careful argument and consideration, held by Lord Hardwicke that they were entitled to relief.* ' Armstrong v. Darby, 26 Mo. 517. ' Supra, p. 534. ^ 1 Ves. 511 (1750) ; and see this case supra, p. 206. * " The first question," said the Chancellor, " is with regard to the nature of the remedy the plaintiff has taken ; for as to the other circumstances, certainly, though the conduct of this gentleman appears very extraordinary, yet when he had these children, in whatever way, or of whatever color, it was a natural duty incumbent on him to provide for them, and whatever provision was made for them, so far as they should be entitled in law or equity, the remedy must be extended for their benefit. The remedy taken is by bill for satisfaction out of assets ; not insisting to follow the subject itself. Undoubtedly a bill may be for satisfaction of a debt out of assets real and personal, which debt may be created voluntarily by the testator ; for although one cannot come into equity to supply a defect in a voluntary deed without consideration, or in many instances cannot come for specific performance of such an agreement, yet if he has a spe- cialty he does not want proof of consideration, but may come into equity as well as lajT to have.satisfaction for that debt on that specialty out of assets, and then the court will not send it to law, but will judge whether he has a specialty or not. Indeed, if it appears doubtful to the court whether it is a specialty on which an action at law could be maintained, or the damages so uncertain that it could not be settled without being tried by a jury, the court will, as in other cases, have th© aid of a court of law ; but unless such a necessity, will not send it to law to make two suits out of one. The plaintiff is proper to have a decree, so far as his right extends, to determine which extent the 660 THE JUEISDICTION OF EQUITY So in the case in Lord Thurlow's time of Giles v. Roe,^ tlie tes- tator, by a voluntary deed containing a covenant for seisin, charged his copyhold estates with the payment of an annuity to the com- plainant for life, and subsequently by his will confirmed the deed and bequeathed the annuitant a legacy in money. The copyhold estates were, however, never surrendered, but descended to the heir of the grantor, and a bill being brought " by the plaintiff to be paid her legacy and to have the annuity secured," the Chancellor held that the plaintiff was a creditor by specialty,^ and that the legacy should be paid and a fund set apart out of the personal estate to answer the annuity.^ nature of the settlement and covenant therein contained must be considered. . . . But then another point arises upon the covenant, for let him intend what he will, if it is a voluntary conveyance, and he has since conveyed away the estate for valuable consideration, these children or their trustees cannot recover it back from such a purchaser, and if that was the whole of the case there is no covenant of specialty to oblige the grantor or his estate to make it good. There is no instance where a voluntary conveyance is afterwards defeated by sale for valuable consideration, that satisfaction can be demanded against him or his estate, unless for some covenant on which an action or suit might be maintained. Therefore plaintiff resorts to the clause which he insists on as a covenant from the testator entitling him to satisfaction for what was lost by evic- tion of the estate out of his assets, real and personal, and if it amounts to a cove- nant it will entitle thereto." See the remainder of the opinion, supra, p. 206, n. ' 2 Dickens, 570 (1780) . This case is not met with on the track of authorities, which may perhaps be owing to the doubtful character of the reports ; see Wal- lace's Reporters, 293. ° It is well settled that a grantee under a deed containing covenants is enti- tled upon their breach to prove against the estate of his grantor as a specialty creditor ; Earl of Bath v. Earl of Bradford, 2 Ves. 587 ; Parker v. Harvey, 2 Eg. Cas. Abr. 460 ; Fergus v. Gore, 1 Sch. & Lef. 107 ; Lovell v. Sherwin, 2 Eq. Rep. 329 (23 Eng. Law & Eq. 534) ; In re Dickson, Law Rep. 12 Eq. 154, supra, p. 543, n. 6, and p. 654, n. 1. In the late case of Hunt v. White, 16 Weekly Rep. 478 (1868), one entitled to the benefit of a covenant for quiet enjoyment was not allowed to prove against the estate of his covenantor, because although that covenant was a general one, yet as the defect of title appeared in the recited deeds, it must, it was thought, be taken to be qualified and restrained by the other covenants in the deed, but as to this see supra, p. 498 et seq. " " A question has been attempted to be made," said the Chancellor, " whether the plaintiff is entitled both to the annuity and to the legacy, but there can be no doubt. The only question is under the annuity deed ; the lands charged with it, and of which he covenanted to be seised in fee and had power to dispose, prove to be not so, except three acres of land, which are very insufficient. The plaintiff therefore must have satisfaction of that covenant, and will be a .cred- itor by specialty quoad hoc. AS TO COVENANTS FOR TITLE. . 661 Nearly seventy years later, came the case of Hervey v. Audland in the Vice-Chancellor's coiirt,i where the facts were very similar to those in Williamson v. Codrington, and a different decision was made. In consideration of affection, one assigned certain personal estate in trust for his nieces, with a covenant for further assurance, and his executors having refused to perform the covenant,^ a bill was filed for the administration of the estate, but the Vice-Chan- cellor held that as the question raised was a legal one, it must be decided by a court of law, and leave was granted to the petitioners to bring an action. But in the later case of Cox v. Barnard,^ satisfaction of a similar covenant was decreed in a similar case. A testator had, before his death, made several voluntary assignments of annuities, mort- gage debts, &Ci (of which no notice was, during his life, given by him to the grantors of the annuities, or the mortgagees), in trust for himself for life, with remainder to the plaintiff, and with covenants for further assurance ; and the bill, alleging that being without consideration it was doubtful whether the assignments were valid, charged that, if invalid, the property comprised in them ought to be administered as part of the personal estate of the testator. The court having desired to hear counsel for those who contended that the voluntary deeds did not bind the estate, the latter cited Ward v. Aud- land,* when tlie court said that the covenant for further assurance created a debt, and that if the testator died solvent the covenant must be performed ; and counsel then suggesting that the court might give the party claiming the benefit of the covenant the opportunity of bringing an action,^ the court, after reading the covenants, said " that the Court of Chancery undertook to administer the estates of deceased persons, and it was the duty of the court to do so, if practicable, without sending parties to courts of law, for which ' U Sim. 531 (1845), Shadwell, V. C. ° There had been a previous bill filed to enforce the trusts of the settlement (Ward V. Audland, 8 Beav. 201, see infra, p. 664), which had been dismissed on the ground that the property had not legally vested in the complainants, but the case has been overruled on this ground, as has also Hervey v. Audland, see infra, 664, n. 1. In the argument of the latter case, Williamson v. Codring- ton seems not to have been noticed in any way. ^ 8 Hare, 310 (1850), Knight Bruce, V. C. The case is not well reported. * A branch of Hervey v. Audland ; ubi supra. * The same argument was used in Williamson^ v. Codrington, which case is referred to by the reporter in Cox v. Barnard. 662 . THE JURISDICTION OP EQUITY there was no necessity in this case. He did not say the court would specifically perform the covenant, but all the covenantee required was damages, and those damages the Court of Cliancery could in such a case estimate and give better than a court of law. It was not necessary for him to decide, and he did not decide, whether without the covenant for further assurance this voluntary instrument would prevail ; but the covenant being there, the court would fasten upon it and hold that the assignment operated to bind the estate." So in the later case of Hales v. Cox,i a testator, in consideration of affection for the children of his first marriage, settled certain estates in trust for their use, covenanting for quiet enjoyment and further assurance, and subsequently conveyed the estates in mort- gage with a power of sale, which was exercised by the mortgagees after his death, and the surplus, after paying the mortgage, was before the court for distribution, and the court held, "The persons who are entitled to the benefit of the covenants for quiet enjoyment contained in the settlement have a right to prove against the assets of the settlor for the amount to which they have been damaged by reason of his subsequently mortgaging the settled property ; that is, after providing for the testator's debts, they are entitled to priority over the legatees." ^ Subject of course to the application of local statutes or prac- tice as to the administration or marshalling of assets, the same general doctrine would of course apply on this side of the At- lantic. Thus in a case in Virginia,^ land which had been con- veyed with covenants for seisin and of warranty in trust to pay the grantor's note, of which the complainants were iudorsers, was sold under a prior deed of trust made to secure a previous debt.* The grantor died, and the complainants, being forced to pay the note, filed a bill against his heirs, claiming to be subrogated to the bank, and to charge the heirs to the extent of the assets de- ' 32 Beav. 118, Romilly, M. R. " The report goes on to say that the court declared "these two principles, — that the claimants under the voluntary settlement are entitled, as against the testator, his heirs and devisees, to marshal the securities, and they are also en- titled, as against the legatees, to prove under the covenant against the assets." ' Haffey v. Birchetts, 11 Leigh, 88. See also Dickinson v. Hoomes, 8 Gratt. (Va.) 410 ; supra, p. 642, n. 1. ' Mortgages in Virginia generally are in the form of deeds of trust with powers of sale ; infra, p. 682. AS TO COVENANTS FOE TITLE. 663 scended to them for a breach of their ancestor's covenant, and a decree was made accordingly.^ So in a case in Kentucky, it was considered that " the discovery of assets, the necessity of subject- ing the real estate of the deceased warrantor, and the non-residence of most of the heirs, form a sufficient foundation for the jurisdiction of a court of equity to give relief for a breach of the warranty.^ So in Arkansas, it was correctly said that wherever the remedy was purely legal and adequate in a court of law, a covenantee must seek it there, and there alone ; but that when a court of chancery had once obtained jurisdiction for some substantial purpose, it would retain it for all purposes, so as to do complete justice between all the parties, and it was added, " it may be safely said that, as a general rule, in view of our system of administration, where the creditor is com- pelled to resort to the heir for payment of the debts of the ancestor, his remedy is in chancery rather than at law." ^ In these cases it will be seen that the jurisdiction attached for the purpose of administration of assets, and, according to the weight of authority, the fact that the covenants were contained in voluntary conveyances — in other words, the question of consideration — was not deemed to be material. But that question is considered to be very material in cases where the jurisdiction is sought to be based upon the grounds of specific performance, of contribution, or of exoneration. Thus, as to specific performance. In Jefferys v. Jefferys,* a father ' " It is said, however," said the court, " that the right of the parties to damages for breach of this covenant could only be asserted at law, and that a court of equity could not properly estimate them. As a general principle this is true, but here the plaintiffs having no rights but by the equitable principle of substitution, could assert no remedy at law. They could only get relief in equity. Moreover, although it is generally true that damages should be inquired of by an issue at law, yet here that could not be necessary, since the damages were fixed and already certain. The damage was the value of the land lost, and that value was ascertained by what it sold for. The debt was paid out of a trust, subject to which the second incumbrancers had title, and the grantor could not complain, nor can his heirs complain at reimbursing the second 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 superflluous." " Kyle V. Fauntleroy, 9 B. Mon. 620. As it was the practice in these reports to give only the opinion of the court, one is often at a loss for the facts of the cases. ' Higgius V. Johnson, 14 Ark. 309. * 1 Craig & Phillips, 138. This was one of the cases which had differed from 664 THE JURISDICTION OP EQUITY had, by voluntary settlement, conveyed certain freehold estates to trustees for the benefit of his daughters, and by the same instru- ment covenanted to surrender to the same trusts certain copyhold estates. Upon his death, on a bill to compel specific execution of the trusts, it was decreed that the settlement was valid as to the freeholds, but void as to the copyholds for want of consideration. So in Ward v. Audland,i the grantor, by a voluntary settleiTient containing a covenant for filrther assurance, conveyed his personal property to trustees, in trust for himself for life, with remainder to his wife and nieces. The grantor remained in possession of the property until his death, when the trustees filed a bill to establish the trnsts of the settlement, but the Master of the Rolls held that as the legal title had not vested in the complainants, the covenant would not effectuate the assignment, and the bill was dismissed.^ Ellis i;. Nimmo, Lloyd & Goold (temp. Sugd.), 333, decided by Sugden while Chancellor of Ireland. ' 8 Beav. 201, per Langdale, M. E., see supra, p. 661. " For the defendant it was argued, " we do not dispute that a voluntary cov- enant may be the subject of a demand in equity, but the question as to what extent a court of equity will give effect to it, depends on the nature of the cove- nant and the frame of the suit. The frame of this suit is not for the administra- tion of the assets, but for the recovery of the specific property, and the covenant is such that nominal damages would alone be recovered at law;" and the court said : " It appears to me that neither a voluntary assignment, by deed, of a mort- gage debt, accompanied by a grant, not specifying the particular estate but of all estates held in mortgage, and by a covenant for further assurance, without delivery of the mortgage deed or notice to the mortgagor, nor the voluntary assignment of a policy of assurance retained in the hands of the assignor, and without notice given to the grantor, though accompanied by a covenant for further assurance, can be considered as a complete and effectual assignment, to be acted upon and enforced by the assignee, without any further or other act to be done by the assignor." It must be observed of the cases of Jeflferys v. Jeflferys and Ward v. Audland, that while the decisions, so far as respects the subject of the covenants for title, are unquestionably sound, yet that they have been properly qualified upon another point, as it is now well settled in England that the mere absence of consideration will not, of itself, be a sufficient ground to deny relief, provided the transaction has taken the form of a trust, and the grantor has done all in his power to perfect it ; Kekewich v. Manning, 1 De Gex, M. & G. 176 ; Donaldson v. Don- aldson, Kay, 711 ; Scales v. Maude, 6 id. 43 ; Cadogan v. Sloane, Sugden on Vendors (11th ed.), 1119 ; Fortescue v. Barnett, 3 Myl. & Keen, 36 ; Wheatley V. Purr, 1 Keen, 551 ; Blakely v. Brady, 2 Dru. & Walsh, 311 ; Elhson v. Ellison, 3 Lead. Cas. in Eq. But this does not apply to the ordinary case of a voluntary- deed, nor to the covenants contained therein. AS TO COVENANTS FOB TITLE. 665 So in a case in New York, where a testator, in consideration of natural affection, made a conveyance of land to the plaintiffs, his grandchildren, covenanting that he was seised of a good and indefeasible estate of inheritance in the premises, free and clear of all incumbrance. It turned out that there was a mortgage on the premises, and the plaintiffs brought suit against the executors to compel them to pay it off out of the assets of the estate, " being," the report says, " in the nature of a bill in equity for a specific performance of the covenants in the deed." On a reference, the report was in favor of the plaintiffs, but this was set aside by the court, on the ground that although equity would sustain voluntary conveyances so far as they were executed, yet it would not enforce executory agreements or covenants. " We admit the validity of the deed as a conveyance," said the court, " but deny the obligation of the covenants which it contains." ^ So where the bill is filed for contribution or exoneration. Thus in a case in the Irish chancery, one seised of several estates, and indebted by judgmeftt, settled one of them for a valuable considera- tion, with a covenant against incumbrances, and subsequently acknowledged other judgments, and it was held that the prior judgments must be thrown entirely upon the unsettled estates, and that the subsequent judgment creditors had no right to make the settled estates contribute,^ and the same decision has since been made in England.^ In Stock V. Aylward,* however, one seised of an estate in fee subject to a charge in favor of another, hy a voluntary conveyance, reciting the charge though misstating its amount, settled the estate upon himself for life, remainder to his eldest son for life, remainder in strict settlement, and covenanted for further assur- ■ Duvoll ». Wilson, 9 Barb. S. C. (N. Y.) 487. ° Averall w. Wade, Lloyd & Goold (temp. Sugd.), 262; supra, p. 533, n. " Here is a covenant," said the Chancellor, " that the estate is free from incum- brances. 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 incumbrances on the unsettled estate. I cannot put the point on lower grounds, but I can put it on much higher. The covenant is enforced not by giving damages, because this court does not give damages [see supra, p. 648], but according to the peculiar jurisdiction of this court, by specif- ically doing that which ought to be done." ^ 8 Irish Ch. R. 429, per Napier, C. * Hughes V. Williams, 3 Mac. & Gor. 688. The facts were almost identical with those in Averall v. Wade, and that decision was approved. ^66 THE JDEISDICTION OP EQUITY ance ; and the charge being subsequently paid dui'ing the lifetime of the settlor out of the rents and pi'ofits of his life-estate, his judgment creditors, after his death, petitioned to compel the inheritance to refund the amount thus paid, but the court said that the effect of the covenant was to exonerate the estate from the payment of this debt, and the petition was refused.^ But this decision seems open to much question, and has indeed, in a very recent case in the same court, received so decided a qualification as almost to amount to its reversal. The owner of lands which were subject to a paramount incumbrance created by his ancestor, having conveyed one part thereof by a voluntary deed which contained a covenant for further assurance, and devised the remaining part, it was held that the covenant for further assurance did not exonerate the grantee from contributing to the payment of the paramount charge, though the court seemed to think that the decision would have been otherwise if the convey- ance had contained a covenant against incumbrances.^ And in ' " Now if, under a covenant for further assurance," said the Chancellor, " a purchaser may, as a matter of course, require the removal of a judgment or other incumbrance, it would seem to me that, under this covenant, the settlor would be bound to exonerate from his own debt, secured by the judgment, the estates of those taking in remainder under this settlement (Sugd. Vendors and Purchasers (13th ed.), p. 501). This judgment has been satisfied out of the rents and profits of his life-estate ; and now it is sought, against his will and in violation of his covenant, to have the amount paid a second time out of the estate upon which it originally attached as a lien. If an action were brought on the covenant by reason of the proceeding against the inheritance, the answer at law would be, the judgment has been paid and satisfied by the settlor. Can the same facts supply the defence of the one party and the claims of the other ? " ' Ker V. Ker, Irish Rep. 4 Eq. 15. " This was a voluntary deed," said the Chancellor, "and executed without any valuable consideration, and it contained no covenant, save a covenant for further assurance. At the time when that vol- untary deed was executed, the lands conveyed by it were well charged in the hands of the grantor with the paramount incumbrances created by Alexander Ker. Did they continue to be charged in the hands of the grantee so as to make him liable to contribute to the payment of those paramount incumbrances, or did he take them exonerated from any such burthen ? It was clearly in the power of the grantor, Andrew Ker, to relieve him from it; he might have made the gift free and absolute, and covenanted so as to take away the grantee's liability. But has he done so ? I think not. By this voluntary instrument, he gives what he had, and nothing else ; and what he had was Lisalea, onerated by the paramount incumbrances. Neither by his will nor by his codicil, on which reliance has been placed in the argument, does the effect of the deed in this respect appear to have been altered. We must take it by itself, and, so taken, there is nothing on the AS TO COVENANTS FOE TITLE. 667 referring to Stock v. Aylward the court refused to extend the doc- trine of that case to a deed without consideration.^ face of it to indicate any purpose on the part of the grantor to relieve the estate from the existing liability. It might have been otherwise if Stopford had been a purchaser for value. It would certainly have been otherwise if he had oT^tained a covenant against incumbrances. In that case he would have been entitled to indemnity for contribution from the grantor or from his devisees, if the incum- brances, or any portion of them, had been levied from Lisalea. But, as the mat- ter was, having given no valuable consideration, and obtaining no protective covenant, could he have asked such contribution against the grantor if such a levy had taken place soon after the execution of the deed ? I think he could not. The grantor would have been entitled to say, ' By my voluntary gift I placed you in my own position quoad the subject of it ; but I did no more. I gave you the benefit subject to the burthen, and, accepting the land, you became liable to the incumbrances.' We must take the deed as we find it ; and, if the want of a covenant against them affects the grantee injuriously, this court cannot supply the defect, because of its voluntary character. This doctrine is estab- lished in Ward v. Audland, 8 Beav. 210, and Clavering v. Clavering, 2 Vern. 475, cited by Mr. Norman in his very clear and able argument, and several other cases. No authority has been produced to establish that a voluntary conveyance, without a covenant against incumbrances, vests any thing in the grantee, save the estate which the grantor had, with all its incidents. Averall v. Wade {supra, p. 665] was a case in which there was valuable consideration and a covenant against incumbrances, . and this is observed upon in Handcock v. Handcock, 1 Irish Ch. R. 444." ' "In Stock V. Aylward, 8 Irish Ch. R. 435, it was assumed," continued the Chancellor, " that, ' under a covenant for further assurance, a purchaser may, as a matter of course, require the removal of a judgment or other incumbrance.' And Lord St. Leonards (Vendors and Purchasers, p. 613) puts the matter thus: '.Under a covenant for further assurance, a purchaser may, of course, require the removal of a judgment or other incumbrance.' The references in support of this opinion are to the two cases to which I have adverted. And looking at them, and considering that in King ». Jones, 5 Taunt. 420, there was not a voluntary deed, but a deed for value, which may or may not have contained a covenant against incumbrances, but, being for value, probably did contain such a covenant, and at all events imported a right to protection not implied in a voluntary convey- ance, and seeing that upon that case the subsequent dicta have been founded, I think it is not too much to take them in connection with the special circumstances to which they had reference, and refuse to extend their operation to a deed with- out value. We are asked, in effect, to import into it a covenant against incum- brances, which may have been deliberately omitted by the grantor, and we cannot, as I have said already, exert the powers of this court to supply imperfections in a voluntary instrument. The existence of a valuable consideration gives ground for the assumption that the parties to a conveyance meant to guard the purchaser against incumbrances, but are we at liberty to make such an assumption where there has been no such consideration, and where the grantor must be held to have given only what, according to the reasonable construction of this deed, he 668 THE JURISDICTION OF EQUITY So it has been held in Massachusetts, that where a tract of land is subject to a mortgage, and a part thereof is, for a valuable con- sideration, conveyed with a covenant of warranty, the covenant exempts the grantee from the payment of any portion of the tnort- gage, provided the lands remaining in the hands of the grantor are of sufficient value to satisfy the charge ; but if the remaining security is insufficient to discharge the incumbrance, then the premises are liable in the inverse order of their alienation,^ and this doctrine has been elsewhere enforced irrespective of the cove- nants for title.^ intended of his bounty to bestow on the grantee ?• On the whole, therefore, looking upon the covenant for further assurance only as operative on the estate conveyed, we find in this deed nothing to show that it was meant to convey any thing but the incumbered interest, or to release the grantee from the charges affecting that interest." So in the somewhat recent case in the same court of Jre re Gardiner, 11 Irish Ch. 519, a tenant for life, having power to charge the estate with a sum for his own benefit, conveyed the property subject to the charge, for a valuable consid- eration, to the person entitled in remainder, covenanting for quiet enjoyment. A judgment for a greater amount than the charge had been previously recovered against the tenant for life, and a receiver of the lands appointed ; this judgment ■was subsequently purchased by the owner of the property, and upon a petition by the tenant for life to raise the charge out of the estate, it was held that the proceedings under the judgment were a breach of the covenant for quiet enjoy- ment, and that the covenant having bound the grantor to indemnify his grantee, the former could not assert a claim to the charge while the judgment was unsat- isfied and the receiver outstanding, and the petition was therefore refused. So where, in another Irish case (Stack v. Royse, 12 Irish Ch. 246), a grantor in a marriage settlement, being seised of estates in fee and for life, settled his fee-simple estates in trust for himself for life, remainder to the objects of his ap- pointment, with remainder over, covenanting " to do any act or execute any con- veyance, if required, of and concerning the specified lands or any other lands and premises of which he should at any time be possessed or entitled to, in order to more fully effectuate and carry out the true intent and meaning of the settle- ment," and afterwards exercised the power of appointment in favor of his son. Upon a judgment being subsequently obtained against the settlor, a receiver was appointed, during his lifetime, of both the fee-simple and freehold lands, and after his death a motion was made to continue the receiver ; but it was held that the freehold, as well as the settled estates, became the subjects of the trust, and that the son took them discharged of the lien of the judgment. ' Chase v. Woodbury, 6 Cush. 143 ; Bradley v. George, 2 Allen, 393 ; George V. Wood, 11 id. 41 ; supra, p. 633, note. " Guion V. Knapp, 6 Paige, Ch. (N. Y.) 35 ; Gumming v. Gumming, 8 Kelly (Ga.), 482 ; 3 Washb. on Real Property (3d ed.), 192. In Cooper v. Bigly, 13 Mich. 476, it was held that as between grantor and grantee a covenant of war- AS TO COVENANTS FOR TITLE. 669 And next as to injunction. Althougli we have thus seen that the jurisdiction of equity in tlie specific performance of covenants for title is illustrated by quite a large class of cases, yet they yield in number to those in which the remedy is sought to be enforced by means of the writ of injunction. The cases are generally those in which the cove- nantee comes into equity to restrain the collection of unpaid pur- chase-money, but there are a few in which a covenantor seeks relief by injunction, and tliese will be first considered. The rather exceptional jurisdiction of equity on the ground of quia timet, enforced by specific performance at the suit of the covenantee, has already been noticed,^ and there are instances in which a somewhat similar jurisdiction has been successfully invoked at the suit of the covenantor.^ Thus in an early case in England, " the defendant had drawn in the plaintiff, a young man, and purchased an estate of him at a great undervalue ; and it happened that the title was defective, and the defendant had been evicted ; and there being covenants for quiet enjoyment and other securities entered into by the plaintiff, he now came to be relieved against an action brought on these cov- enants, and for the defendant Swaine it was insisted, that he ouglit to have the value of the estate evicted," but Lord Keeper North said, " The defendant, who was a lawyer, and ought to have understood a title, purchased this estate at a great undervalue, and the title now proving defective, and the land evicted, it is unreasonable he should make an advantage of this catching bargain ; and therefore decreed him his purchase-money with interest only, discounting mesne profits." ^ ranty was only evidence of the intention not to charge the land sold with a pro- portionate part of a paramount, mortgage, and that the absence of the covenant was no ground to hold that the intent could not be presumed ; supra, p. 533, note. ' Supra, p. 652. " In McKinny v. Watts, 3 Marsh. (Ky.) 268, a covenantor filed -a bill for relief against a judgment obtained against him at law upon his covenants, and for the quieting of the title, which was sustained, principally, it would seem, on the ground of the purchaser having received, on his eviction by the holder of the paramount title, allowance under the occupying claimant law for improvements, for which allowance the complainant had received no credit in the judgment recovered against him. In the subsequent case of Field v. Snell, 3 B. Mon. (Ky.) 217, this case was approved, but the vendor having failed in his proof, the decree entered below in his favor was reversed. « Zouch V. Swaine, 1 Vem. 320. 670 THE JURISDICTION OP EQUITY So in a somewhat late case in Connecticut,^ the complainants had sold a large lot of ground in the city of Hartford, with cove- nants for the title. The purchaser had however, in addition to the covenants, required from the vendors security to save him harm- less from a lien which the city claimed to have against the property for paving done in front of it some years before, and the vendors then filed a bill against the city, praying that it disclose the grounds of the claim and the amount of the lien, if it existed, and upon payment thereof release the premises therefrom ; or, if invalid, that the city be enjoined from prosecuting it. Upon refer- ence 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 aside nor enjoin an attempt to enforce it^ — that the complainants had an adequate remedy at law for the contract price, to which, if the lien were invalid, there could be no defence — and that the plaintiffs, having sold and conveyed the property, had no longer any interest in it which equity could protect. But these objections were overruled by the court, and a decree entered for the complainants.^ ' Chipman w. City of Hartford, 21 Conn. 488. ° See 2 Story's Eq. § 700 a, for the distinction between voidable instruments whose existence has a tendency to cast a cloud upon a title, and those of which the illegality appears upon their face, and admits of no doubt. ^ In answer to the first objection, 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, j'et that this case was distinguishable from those. "This bill does not ask for the bare can- cellation of a deed. The city of Hartford had instituted certain proceedings, which they claimed had resulted in fixing a lien upon the property of the plain- tiffs ; it insisted upon the lien, and the plaintiffs had a right to suppose from some other cause or reason than the records here produced disclosed. This claim, whether legally existing or not, worked an injury to the plaintiffs by creating such a doubt as in fact to cause purchasers under them to withhold payment. In this state 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 against their further proceedings, and thus become involved in an expensive liti- gation in the dark ; or they could ask, as they have done, to have this cloud cleared away. . . . Aside from any discovery sought, this bill is not merely quia timet, but the claim of the defendants is working a present injury by actually ' preventing purchasers from making payment of the stipulated price to the plaintiffs, by reason of the cloud upon their title ; 2 Story's Eq. § 700. In Simpson v. Lord Howden, 3 Myl. & Cr. 99, an action at law was pending to try the same question ; and in Peirsoll v. Elliott, 6 Pet. (U. S.) 98, the same question had been already AS TO COVENANTS FOR TITLE. 671 So in a rather late case in Georgia, the complainant having sold land with a covenant of warranty, averred in his bill that the defend- ant was combining with a prior vendor of the land, whose deed had contained no covenants, to set up a claim by reason of the defective probate of that deed, had purchased the claim for a nominal con- sideration, and had brought an ejectment for the land in the name of the assignor, and prayed that the assignment of the claim might be declared fraudulent and be cancelled, or that the defendant be decreed a trustee for the purchaser, and quiet his title by convey- ing to him, and that the ejectment be enjoined. Upon demurrer, the court below dismissed the bill, but this was reversed in the court above, where it was held that the complainant was entitled to the relief prayed for.^ determined ; but here the plaintiffs were left in the dark and in doubt, because the defendants still insisted upon their lien, and yet instituted no means to enforce it. They have left the plaintiffs to the expense of determining their rights, only in this way, and by this bill ; and now, not until the county court upon this hear- ing has decided that no such incumbrance exists, the defendants very ungraciously say, yes, this is true, and so obviously true that the plaintiffs have never been in danger, and have had no just occasion to bring us into a court of equity. Indeed, the defence is that as after an expensive and long-defended application in equity the plaintiffs have succeeded in establishing their claim, this is the very reason why they are not entitled to relief. If the defendants had demurred to the bill at first, acknowledging their want of a lien, their defence would have appeared better." In answer to the objection that the plaintiffs had a remedy at law against their purchasers, it was said that apart from the ground that such an objection, being one to the jurisdiction, should have been made at an earlier stage, yet that it had no foundation in this case. " Besides, the plaintiffs had no remedy at law against these defer.dants. We are not aware of any case which decides that if the plaintiff has an equity against the defendant a court of equity loses its jurisdiction, because there may be a remedy at law at the election of the party against a stranger, or some other person." And in answer to the objection that the plaintiffs, having conveyed the land, had no interest which equity could protect, it was said that although they did not own the land itself, still they had an essential interest in the question of the title by which the purchasers under them held the land, by reason of the covenants for title in their deeds. It was ob- vious that their interest was as direct as if they then held the land. ' Redwine v. Brown, 10 Ga. 311. The argument, in behalf of the defendant, was chiefly directed to the point that the purchaser from the complainant cpuld 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. 835 ; and the court said, in conclusion, "We are well satisfied that in case the present owner should lose this land, he would be entitled to go back upon the complainants, upon the covenant of warranty to Dominick, and that, consequently, he is recttis 672 THE JURISDICTION OP EQUITY So in a recent case in Illinois,^ a mortgagor of land having obtained a release of the -mortgage from one of the mortgagees (which it was contended was binding on the other), conveyed the premises with covenants to a purchaser against whom the other mortgagee commenced proceedings of foreclosure, to which the vendor was not made a party, and the latter then filed a bill against the mortgagee, praying that he be enjoined from their fur- ther prosecution, and be decreed to satisfy the mortgage of record. It was objected that the complainant had a complete remedy at law by reason of his power to set up the release as a defence against any action brought on the covenants ; but the court held that he was not obliged to postpone the assertion of his rights until that time, when perhaps his evidence might have passed beyond his reach. And the decree which had been entered below for the complainant was affirmed.^ in curia as complainant in the bill, seeking to have the incumbrance on the title removed." In Bush v. Keller, 2 Carter (Ind.), 69, a bill was filed by a vendor to prevent his vendee from suing on the covenants for title, or from setting them up by way of defence to payment of the purchase-money, on the ground of mis- take 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 the ground that the evidence had by no means substantiated the charge of mistake. In Taylor v. Gilman, 25 Vt. 411 (infra, p. 700), the court sustained a bill filed by a covenantor to restrain his covenantee from suing on the covenants lor title, not on the ground of accident or mistake in the insertion of the covenants them- selves, but of fraud on the part of the latter in seeking to enforce them in oppo- sition to a distinct agreement between the covenantor and himself, which, though denied in the answer, was sustained by proof; see supra, p. 119. See as to the reformation in equity of the covenants for title, infra, p. 696. ' Hubbard v. Jasinski, 46 111. 160. ' "Moreover," said the court, "this is a controversy between Jasinski (the mortgagor) and Hubbard (one of the mortgagees), and should be settled between them, instead of being litigated between Arneson (the purchaser) and Jasinski. Justice to Arneson requires this. If Jasinski has paid this mortgage in a manner to be. binding upon Hubbard, the attemp- of the latter to foreclose it is a wrong both to Jasinski and to Arneson, and the former, as the party ultimately liable upon his covenants to the latter, must be permitted to bring Hubbard before the court for the purpose of settling the question of payment, and having the mortgage fully cancelled upon the records in case it has been paid. Only in this way can complete justice be done. If Hubbard had made Jasinski a party to the foreclosure suit, this controversy might have been settled there, and this suit would have been unnecessary. The case of Coughron v. Swift, 18 111. 414 (infra, p. 673), is wholly unlike the present." It is possible that the local practice in AS TO COVENANTS FOR TITLE. 673 In a case in New Hampshire, the court seemed to be of opinion that although it might be doubtful whether one who had no other interest in land than his liability on his covenants, could, singly, maintain a bill which sought to quiet the possession by an injunction merely, yet it was held that where other relief was sought, and an account was to be stated between the covenantor and the defend- ant, the bill could, be sustained. ^ So in a case in Mississippi, the complainant having bought at sheriff's sale certain land which had been entered by the debtor at the land office, subsequently sold it with covenants for title to one against whom an ejectment was brought by parties claiming under patents from the govern- ment issued to them by virtue of alleged prior assignments to them by the debtor, and the complainant filed a bill against these par- ties for a discovery of the date of the alleged assignments, and for that State did not permit the mortgagor to apply to be made a party defendant in the foreclosure suit. Johnston v. Piper, 4 Minn. 195, and Browning v. Cris- man, 30 Mo. 355, were cases in which it was held that a covenantor, by reason of his liability on his covenants, was properly joined or brought in as a defend- ant, relief being sought against other parties also. In Coughron v. Swift, the facts upon the face of the bill were not enough to bring the ease within this exceptional jurisdiction of equity. The lien com- plained of was clearly invalid as respects the premises in question ; the complain- ant's " apprehension, by his own showing, was imaginary and groundless," and his remedy at law " adequate and free of difficulty or obstruction." In this case, there had been a sheriff's sale under an execution on the alleged invalid lien, and the bill was filed against the claimant therein (who had become the purchaser at sheriff's sale), the former owner of the premises upon which the work had been done, after the conveyance to the complainant and the sheriff, praying that the purchaser and the sheriff be enjoined from consummating the sheriff's sale by deed. The precise lines of the jurisdiction in this class of cases cannot perhaps be sharply drawn. On the one hand, it is said in many cases that the title is purely one of law, and that the question whether the purchaser at the sheriff's sale has bought anything or nothing, is for the jury, upon ejectment brought by the sheriff's vendee. On the other hand, it is urged that the very fact that the alleged claim is invalid will reduce the price of the property at the sheriff's sale, which will coflsequently be a sort of lottery ; and that a court of equity, having all the parties properly before it, can protect the rights of all by its varied ma- chinery, ordering, if necessary, a feigned issue to try the validity of the alleged claim, putting the parties upon terms to speed the cause, &c. The latter view seems to have been taken in Pennsylvania in Hunter's Appeal, 4 Wright (Pa.), 192, where the execution creditors of a husband were enjoined from selling, as his property, land which had been acquired by the wife since the married woman's acts in that State. ' Brooks V. Fowle, 14 N. H. 248. 43 674 THE JURISDICTION OF EQUITY an injunction to restrain their further proceeding in their suits against his vendee. On demurrer, the bill was dismissed, 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 open to the latter ; that it being set- tled in that State, that if the lands had been validly sold under execution before the patent had been issued, the complainant had acquired a good title, he was entitled to a discovery of the date of the alleged assignment, and coming into equity for one purpose he could maintain his bill for complete relief.^ But a court of equity will not draw to itself a jurisdiction of which courts of law have cognizance, unless there be some mis- take, accident or fraud which would deprive the party of a defence in that tribunal ; and in a case in Wisconsin, a vendor who had sold land with covenants for title filed a bill against his vendee (who had sued him upon those covenants) and the heirs of a prior vendor of the land, alleging the loss of the deed from that vendor, and praying that the latter might be perpetually enjoined from setting up any title to the premises — that the purchaser be decreed to have no cause of action against the complainant by reason of the supposed defect of title — and that he be enjoined from prosecuting his suit at law. But this bill was dismissed, the court considering that in effect it was asked to decree a non- suit in a suit at law ; that there had been no fraud, accident or mistake which would make it against conscience for the purchaser to maintain his action ; that it was not asserted that the loss of the deed endangered the complainant's defence to that suit, and that proof of that loss could be as well supplied in a court of law as in equity.^ Nor, according to the weight of authority, as has been already seen, will equity deprive a covenantee of his right to damages for a breach of the covenants, by compelling him, at the suit of his covenantor, to accept a title subsequently acquired by the latter ; ^ while, at the same time, after such damages shall have been so recovered, the covenantee will be restrained from setting up, as against his covenantor, that title which, by his action on the cove- nant, he had asserted to be defective ; and in such cases a recon- veyance would probably be decreed.* ' Huntingdon v. Grantland, 33 Miss. 454. = Rogers v. Cross, 3 Chand. (Wis.) 34. ' Supra, pp, 267-277. « Supra, p. 282. AS TO COVENANTS FOE TITLE. 675 The remedy in equity by the process of injunction is perhaps most frequently invoked by a purchaser to restrain the collection of the unpaid purchase-money or to rescind the contract, and, as may be imagined, the books swarm with cases on the subject. The result may be thus stated in a word : unless the purchaser has a present right to damages upon his covenants, relief, in the absence of the insolvency or non-residence of the vendor, is, in general, refused. The leading cases are the two early ones in New York of Bumpus V. Platner and Abbott v. Allen. In the first of them, decided in 1814,1 where the bill prayed an injunction to restrain proceedings on a mortgage given for the purchase-money, on the ground that the title had been previously conveyed to another, all of whose estate had become forfeited to the Commonwealth, Chancellor Kent, admitting that it was difficult to extract from the books what was the rule of equity on this point of failure of consideration, still apprehended that it might be safely said that there was no case for relief where possession had passed and continued without any eviction at law under a paramount title. He considered an eviction at law an indispensable part of the plaintiff's claim to relief.^ The defendant conveyed to the plaintiffs with covenant of warranty, and he was bound to defend their title, and non constat that he was not able and willing to do it. If the title failed, the plaintiffs could resort to the covenants in their deed for their indemnity. Hence it was said to be without precedent, and dangerous in principle, to arrest the collection of the purchase-money on the mere allegation of a failure of title, without more. In Abbott V. Allen,^ whose features were substantially similar, a doubt having been cast in the argument over the correctness of this decision, the Chancellor, on reviewing it, was satisfied of its soundness. " It would," said he, " lead to the greatest inconven- ience, and perhaps abuse, if a purchaser in the actual enjoyment of land, and when no third person asserts or takes any measures to assert a hostile claim, can be permitted, on suggestion of a defect or failure of title, and on the principle of quia timet, to stop the payment of the purchase-money and of all proceedings at law to recover it. Can this court proceed to try the validity of the out- ' 1 Johns. Ch. 218. ' This, however, has been since modified ; see supra, p. 151 et seq. ' 2 Johns. Ch. 519, decided in 1817. 676 THE JUEISDICTION OF EQUITY standing claim in the absence of the party in whom it is supposed to reside, or must he be brought into court against his will, to assert or renounce a title which he never asserted, and perhaps never thought of? The only plausible argument for the injunction is, that as the plaintiff has covenants to secure his title, the inter- ference of this court is necessary to prevent circuity of action, and that the plaintiff ought not to be compelled to pay the purchase- money, when by a suit on his covenants, he might, almost concur- rently, be enabled to recover it back again. This argument would apply to every case of mutual and independent covenants, and would prove too much ; but the proper answer here is, that to sustain the injunction would be assuming the fact of a failure of title before eviction, or trial at law, and which this court, as not possessing any direct jurisdiction over legal titles, is not bound or authorized to assume. This court may, perhaps, try title to land when it arises incidentally ; but it is understood not to be within its province when the case depends on a simple legal title, and is brought up directly by the bill. The power is only to be exercised in difficult and complicated cases, affording peculiar grounds for equitable interference." The question that might be presented, if there had been a previous eviction, or an existing incumbrance which appeared to admit of no dispute, was here left undecided. It would be hazardous, it was said, to define the limits of equitable relief in supposable cases of the like kind.^ Within a few weeks, however, of this decision, the case of John- son V. Gere ^ was presented before the same court, upon an ex parte application for an injunction to restrain proceedings on a mort- gage, given for the purchase-money of land, which had been con- veyed with covenants for title, on the ground of an ejectment having been brought to recover the possession. The bill prayed ' It may however be observed that when a question of title is presented, whose determination is incidental and necessary to the relief prayed, equity will not deny that relief merely because the question of title is involved. Such ques- tions 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 practice for a court to refuse to examine the adverse title in cases where the purchaser has a present right to actual damages, and the relief is based solely on 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. ^ 2 Johns. Ch. 646. AS TO COVENANTS FOR TITLE. 677 for an injunction until answer and the farther order of the court. " The Chancellor granted the injunction, and distinguished this case from those wherein there was only an allegation of an out- standing title and no disturbance, prosecution or eviction thereon. Here the party was actually prosecuted by an action of ejectment, on the ground that the title derived from the defendant was defec- tive. The defendant is entitled, and it will be his duty to defend the ejectment suit, and until that suit is disposed of, he ought not to recover the remaining moneys due on the bond." This decision, however, is not now regarded as a precedent,^ and although the case has been sometimes approved,^ and in ' Chancellor Kent, who had himself granted the injunction in Johnson ». Gere, takes no notice of the case in his Commentaries (2 Com. 472), while he quotes with approbation the case of Abbott v. Allen, and those which have followed it. ' In the case in New Jersey of Shannon v. Marselis, Saxton, 413, all the parties to the title were before the court, and there could therefore be with pro- priety an equitable settlement of mutual claims, and the case did not need the authority of Johnson v. Gere, which was cited with approbation, nor the expres- sion, " Where there is a mere allegation upon an outstanding title or incum- brance, the court will not interfere, but leave the party to his remedy on the covenant, but where there is an eviction, or even an ejectment brought, it will interpose.'' In Van Riper v. Williams, 1 Green's Ch. (N. J.) 407, to a bill for a foreclosure of a mortgage, the defendant answered that it was given for the purchase-money of land conveyed with covenants for seisin and against incum- brances, excepting a specified mortgage, but that the premises were subject to another mortgage, " still outstanding, unsatisfied and uncancelled." The case being submitted on the pleadings and proofs, the Chancellor held that the mort- gage must be first removed before a decree for foreclosure and sale in equity could be made, or so much of the proceeds of sale as might be necessary for that purpose must, by the decree, be directed to be applied to payment of the 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 the defendant made a mere allegation of an out- standing title, but the court expressly declared that " if a suit were pending to try the title, or the defendant had been dispossessed, there would be propriety in resisting the foreclosure of the mortgage. This distinction is recognized in the case of Johnson v. Gere, and Shannon v. Marselis." And in Jaques v. Esler, 3 id. 462, the same doctrine 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-money of land, on the ground that an ejectment had been brought by persons claiming a paramount title, who had also filed a bill to set aside the conveyance to the complainant. " For it is well settled that the purchaser of real estate by deed of warranty has a right to relief in equity against the vendor, who seeks to enforce the payment of a bond and 678 THE JURISDICTION OF EQUITY occasional cases in New York there have been intimations that equity will not relieve, unless there has been an eviction, " or a suit actually commenced to recover the land,"i yet in none of these cases did that circumstance occur, and the general course of decisions in that State and elsewhere has not only repudiated the doctrine of Johnson v. Gere,^ but has restrained the application mortgage given for the purchase-money, until a suit actually brought to recover the premises by a person claiming the paramount title shall have been deter- mined. He is not obliged to look merely to the covenants in the deed ; he is not to be driven to such circuity of action, nor to rely upon that as his only security. The fund in his hands is a security, of which it would be inequitable to deprive him." The injunction was dissolved upon another ground, viz., that upon the assignment of the bond, which was after these suits had been brought, the complain- ant had stated that he had no defence whatever to make to its payment, and the court held that he had thus waived an equity to which he would otherwise have been entitled (see as to this point, Morrison v. Beckwith, 4 Monr. (Ky.) 73) . In the later case of Glenn v. Whipple, 1 Beasley's Ch. (N. J.) 60, it was how- ever held that it was no defence to a suit on a mortgage given for the purchase- money of land which had been conveyed with covenants for title, that the grantor's wife had not joined in the deed and was now claiming dower, and the Chancellor said that Johnson v. Gere did not carry the doctrine to this extent ; Hill V. Davison, 5 C. E. Green, Ch. (N. J.) 228; Hulfish v. O'Brien, id. 230. In Puckett v. M'Donald, 6 How. (Miss.) 269, the purchasers filed a bill to en- join a judgment obtained by administrators, for the purchase-money of lots sold by them with covenant of general warranty, and of which the purchasers were in possession, on the ground that the requisitions of the law, as to giving the proper notice, &c., had not been complied with by the administrators, and the court, while freely admitting the doctrine that when the vendor is led into possession under a deed with full covenants, and there has been no eviction nor any fraud, he cannot resist the payment of the purchase-money on the ground of a defect in title, but must be driven to his covenants, yet held that in the present case the sale was virtually made by the court, and the administrators acted only as commissioners to execute the order of sale, and that their covenants could not furnish a foundation upon which an action could be maintained against them per- sonally (but see supra, p. 49), nor could the vendee be supposed to place any reliance upon such assurance. In Woods v. North, 6 Humph. (Tenn.) 309, the circumstances were similar and the decision the same way, though it was put upon the ground that a covenant for seisin which the administrator had given was such a representation by him as amounted to fraud, and the contract was rescinded on the ground of misrepresentation. The student will be careful not to rely too strongly upon either of these cases in practice. ' Leggettu. M'Carty, 3 Edwards' Ch. 126; Edwards ». Bodine,26 Wend. 114. ' The authority of Johnson v. Gere was denied in Piatt v. Gilchrist, 3 Sandf. S. C. R. 118, and in Miller v. Avery, 2 Barb. Ch. 594, where Chancellor Wal- worth said, " I think it evident that the reporter was under a mistake in the statement of the case, or that the Chancellor overlooked the fact that it was not AS TO COVENANTS FOR TITLE. 679 of the quia timet jurisdiction of equity in this connection, within such narrow limits as almost to amount to its denial.^ Thus where on a bill to foreclose a mortgage given for the purchase-money of land conveyed with warranty, the answer alleged that a suit had been brought by persons claiming the premises by paramount title, and prayed that the foreclosure and sale might be deferred until this should have been determin'ed, it was held that although after eviction relief would be extended ia order to prevent circuity of action, yet until that event the court liad no authority to interfere.^ " The purchaser in this case promised to pay the purchase-money at stipulated periods, and the seller covenanted that if at any time the title should fail, and the purchaser be evicted by a paramount title, he would refund the purchase-money with interest. The possibility that the title might fail, and the purchaser be evicted, was in tte minds of the parties. They might also have provided that in case of a claim being made by title paramount before actual payment of the consideration-money, the right of the vendor to call for its payment should be suspended. But this they have not thought proper to do, and this court can with no more propriety add such a clause to the contract, and suspend the collection of the alleged in the bil that the complainants ever believed their title to the land was defective. For it cannot be possible that he intended to decide that a mere claim of a paramount title by a third person, and the bringing of a suit upon that claim against the purchaser, was sufficient to authorize the court to stay the vendor, who had warranted the title, from proceeding at law or in equity to collect the unpaid purchase-money. If the law was so, any vendee who was not ready to pay his jurchase-money when it became due, might make a secret arrangement with some third person to claim the premises and bring an ejectment suit therefor, and tlus tie up the vendor from collecting his debt indefinitely. For, if the vendor should be . allowed by the court at law to interfere with the defence of the ejectnerit suit so as to get it out of court in a reasonable time, the plaintiff might submit to a nonsuit and then bring a new action. And such new action, either bj the original plaintiff or by a new claimant, would entitle the vendee to a new decree, staying the collection of the purchase-money until the final termination of that suit." ' Bates V. Delavan, 6 Paige, 299 ; Hoag v. Rathbun, 1 Clarke's Ch. 12 ; Griffith V. Kempshall, id. 571 ; Denston u. Morris, 2 Edwards' Ch. 37 ; Leggett V. McCarty, 3 id. 134 ; Withers v. Morrell, id. 560 ; Edwards v. Bodine, 26 Wend. 109; Woodruff v. Bunco, 9 Paige, 443; Banks v. Walker, 2 Sandf. Ch. 344 ; Miller v. Avery, 2 Barb. Ch. 694 ; see Tone v. Brace, 1 Clarke's Ch. 291 ; s. c. id. 509 ; 8 Paigs, 697 ; 11 id. 669 ; see also Chesterman v. Gardiner, 5 John's Ch. 29 ; Gouverneur v. Elmendorf, id. 79. ' Piatt V. Gilchrist, 3 Sandf S. C. 118. 680 t THE JURISDICTION OP EQUITY purchase-money, than it can suspend the collection of rent expressly covenanted to be paid, upon the destruction of the buildings, where the parties have not themselves provided against it." ^ So where a vendor conveyed with covenants for seisin, against incumbrances, for quiet enjoyment and of general warranty, and received from his grantee a note for the unpaid purchase-money, to secure which the latter conveyed the land to another in trust to sell if payment were not made at maturity, at which time, howerer, payment was refused on the ground that part of the property was in the adverse possession of others, and that suits were pending to recover other portions of the same, and the trustee notwithstanding, at the request of the grantor, sold the tract for a sum less than the amount of the note. The grantee then filed a bill to set aside the trustee's sale and to restrain the grantor from collecting the unpaid purchase-money, which was decreed by the court below ; but this was reversed on appeal, and while the sale under the deed of trust was set aside owing to certain misrepresentations of the trustee and the grantor, yet it was held that the complainant had no equity to restrain the collection of the purchase-money, having averred no fraud in the original sale, he was therefore remitted to his action upon the covenants, and although it was in proof that the grantor was insolvent, yet as that fact was not averred in the bill, the evidence was disregarded.^ The cases might be multiplied almost indefinitely, and the gene- ral doctrine which they establish is that where the only covenants in the deed are those for quiet enjoyment or of warranty,^ and so long as there has been no eviction, actual or constructive, equity ' Piatt V. Gilchrist, supra. "The court, moreover," continued Mason, J., who delivered the opinion, "if it interfere at all, must do so upon the simple fact of the claim having been made by suit, without Y-eference at all to the char- acter of the claim. ... 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 character. . . , This decision may operate severely on the defendant in this case, and especially if the adverse claim shall turn out to be well founded ; but the contrary decision would operate with severity on the plaintiff, if the title shall prove good. He is, moreover, only pursuing his legal remedy for a debt admitted to be due, while the defend- ant has all the protection for which she stipulated in the event of the title proving defective." « Hoppes ». Cheek, 21 Ark. 58.5. ' See infra, where there are also covenants for seisin, &c. AS TO COVENANTS FOR TITLE. 681 will, as a general rule, refuse to entertain a bill to enjoin the collection of purchase-money.^ Nor, a fortiori, in such cases will a court of equity rescind the contract. Thus in a somewhat late case in the Supreme Court of the United States, where land had been conveyed with a covenant of general warranty, the purchaser alleged as a defence to a suit to foreclose a purchase-money mortgage, that at the time of the con- veyance the land was in the adverse possession of others, but it being proved that this adverse possession was tortious, the court held that as there had not been any breach of the covenant ^ the facts constituted no ground upon which to rescind the contract,^ ' Busby V. Treadwell, 24 Ark. 457 ; Barkliamsted v. Case, 5 Conn. 528 ; Whitworth v. Stuckey, 1 Rich. Eq. (S. C.) 408 ; Beale v. Seiveley, 8 Leigh (Va.), 668 (and see the Virginia cases, infra, p. 682 ) ; Clanton v. Surges, 2 Dev. Eq. 15 ; Merritt v. Hunt, 4 Ired. Eq. (N. C.) 406 ; Wilkins v. Hogue, 2 Jones' Eq. (N. C.) 479 ; Henry «. EUfott, 6 Jones' Eq. 175 ; Miller o. Long, 3 Marsh. (Ky.) 334; Rawlins v. Timberlake, 6 id. 233; Percival w. Hurd, 5 J. J. Marsh. (Ky.) 670; Simpson v. Hawkins, 1 Dana (Ky.), 305; Trumbo v. Lockridge, 4 Bush (Ky.), 416; Hall «. Priest, 6 id. 14; Elliott v. Thompson, 4 Humph. (Tenn.) 99; Young v. Butler, 1 Head (Tenn.), 646; Middlekauff v. Barrick, 4 Gill (Md.), 290; Timms v. Shannon, 19 Ind. 296; Miller «. Owen, Walker (Miss.), 244; Anderson v. Lincoln, 6 How. (Miss.) 279; Coleman v. Rowe, id. 460; Vick u. Percy, 7 Sm. &'Marsh. (Miss.) 256; Walker v. Gilbert, id. 456; McDonald v. Green, 9 id. 138 ; Green v. McDonald, 13 id. 445 ; Johnson u. Jones, id. 580; Latham v. Morgan, 1 Sm. & Marsh. Ch. (Miss.) 618 ; Gartman V. Jones, 24 Miss. 234 ; Wailes v. Cooper, id. 208 ; Harris v. Ransom, id. 604 ; Glenn v. Whipple, 1 Beasley's Ch. (N. J.) 50; Hill v. Davison, 5 C. E. Green, 228; Hulfish v. O'Brien, id. 230; Edwards w. Morris, 1 Ohio, 532; Stone v. Buckner, 12 id. 73 ; Ludlow v. Gilman, 18 Wis. 552 ; Akerly v. Vilas, 21 id. 88. MaxSeld v. Bierbauer, 8 Minn. 420, where the text was cited at length, was the case of an executory contract. In Smith v. Newton, 38 111. 230, and Weaver ». Wilson, 48 id. 128, it expressly appeared in the mortgage and note sued upon that the purchase-money was not to be paid unless the titles were perfect. * It will of course be borne in mind that, to constitute a breach, the adverse possession must be under paramount title ; see supra, p. 145, et seq. ^ Noonan v. Lee, -2 Black (U. S.), 499. "It is not claimed," said the court, " that there was any fraud or misrepresentation, or that any fact exists in regard to the title which was unknown to the grantee when he bought the property. . . . It is impossible to read the testimony and resist the conclusion that he bought the property for a purpose, and that having held the title for several years with- out paying any thing, and accomplished that purpose, he is now seeking, under the pretence of defect of title, finally to avoid the payment of the purchase- money, and throw back the property upon the hands of the vendor. This ungra- cious work a court of equity will not permit him to do.'' 682 THE JURISDICTION OP EQUITY and this doctrine is supported by the entire weight of the author- ities.^ In Virginia, a practice was introduced, at an early period, for the purpose of enabling a mortgagee to obtain payment without the delay and expense of a bill of foreclosure, of conveying the lands to a third person, in trust, upon non-payment of the money at the appointed time, to sell, mortgage or lease the premises,^ and under such deeds of trust courts of equity in that State have been very liberal in enjoining sales where defects of title, covered by the defendant's covenants, could be shown to exist.^ This pi-actice is, however, local. ' Prevost V. Gratz, 3 Wash. C. C. R. 439 ; Beach v. Waddell, 4 Halst. Ch. (N. J.) 299 ; Greenleaf v. Queen, 1 Pet. (U. S.) 138 ; Patterson v. Taylor, 7 How. (U. S.) 132; Leggett v. M'Carty, 3 Edw. Ch. (N. Y.) 324; Woodruff u. Bunce, 9 Paige (N. Y.), 443; Whitworth v. Stuckey, 1 Rich. Eq. (S. C.) 409 (see the able remarks of Harper, Ch., in that case) ; Van Lew v. Parr, 2 id. 321 ; Maner v. Washington, 3 Strob. Eq. (S. C.) 171 ; Long v. Israel, 9 Leigh (Va.), 556; Young v. M'Clung, 9 Gratt. (Va.) 336; Percival ». Hurd, 5 J. J. Marsh. 670 ; Lewis v. Morton, 5 B. Mon. (Ky.) 1 ; Vance v. House, id. 637 ; Casey v, Lucas, 2 Bush (Ky.), 56 ; Buchanan v. Alwell, 8 Humph. (Tenn.) 518 ; Young V. Butler, 1 Head (Tenn.), 648; Ohling v. Luitjens, 32 111. 23; Roberts V. Woolbright, 1 Ga. Decis. 98 ; M'Gehee v. Jones, 10 Ga. 136 ; Beck v. Sim- mons, 7 Ala. 76 ; Witty v. Hightower, 6 Sm. & Marsh. (Miss.) 345 ; McDonald V. Green, 9 id. 138 ; s. C. 13 id. 446 ; Cooley «. Rankin, 11 Mo. 647 ; Edding- ton V. Nix, 49 id. 134 ; Beebe v. Swartwout, 3 Gilm. (111.) 162. ' 1 Lomax's Digest, 324. ' In Gay v. Hancock, 1 Rand. 72, where the purchaser proved an outstand- ing claim embraced within his covenants, and a suit then actually pending under it, the Court of Appeals held that the sale should be enjoined until the cloud resting on the title in consequence of the claim should be removed. This decision was approved and followed in subsequent cases ; Ralston v. Miller, 3 id. 49 ; Miller v. Argyle, 5 Leigh, 467 ; Koger v. Kane, id. 606 ; Long v. Israel, 9 id. 569 ; and it was admitted that the court had, in favor of purchasers, gone far beyond any thing which had been sanctioned in England or elsewhere in en- joining the payment of the purchase-money after the purchaser had taken pos- session under a conveyance, especially 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. Miller, supra. In Miller v. Argyle, it was said that a distinction had always been strongly drawn between an injunction in the case of a deed of trust, and in the case of a judgment at law, "for it never can be equitable to permit a sacrifice by sale under a doubtful title, though it may be but just that the vendor should be suffered to enforce a judgment for his purchase-money, when the vendee is in possession, since the doubt about the title may eventually turn out to be frivolous and groundless." In Beale v. AS TO COVENANTS FOB TITLE. 683 It lias at times been intimated that the presence of a covenant for seisin may in some cases fortify the position of a purchaser,^ but it does not appear that the cases generally draw much distinc- tion between the different covenants for title. ^ It frequently happens that a purchaser accepts his deed with full knowledge of the defect or incumbrance, and with the intention of relying upon the covenants for his protection.^ In such case, to enjoin the collection of the purchase-money because of the presence of a covenant for seisin 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.* In many of the cases upon this subject the Seiveley, 8 Leigh, 675, the court, after referring to the cases of Abbott v. All en &c. (supra, p. 675), 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 suit is depending or threatened, or where the vendee, placing himself in the attitude of the superior claimant, can show a clear outstanding title or incumbrance. A still greater liberality has prevailed, it is true, in enjoining proceedings under deeds of trust, but this rests upon peculiar principles." This distinction, how- ever, seems not to have been always clearly observed, and the practice sanc- tioned with respect to deeds of trust, seems to have insinuated itself into all securities given for purchase-money; see Yancey D. Lewis, 4 Hen. & Munf. 390 ; Long v. Israel, 9 Leigh, 569 ; Clark v. Hardgrove, 7 Gratt. 399. (Grant- land V. Wight, 5 Munf. 295, was a case of an executory contract.) In the more recent case of Price ». Ayres, 10 Gratt. 575, there were no covenants for title as to one purchaser, and no assertion of the paramount title as to the other, and relief was therefore denied to both of them. A very recent author, who considers that "in the unsettled state of the authorities " it is "difficult, if not impossible, by any process of generalization, to deduce from the decided cases principles of general application, which shall serve as rules for the guidance of courts and practitioners," has not noticed this peculiar local usage in Virginia ; High on Injunctions, §§ 278-291. And it is submitted that there never have been any classes of cases more in harmony with each other and with the gene- ral principles of equity jurisprudence, than those in which relief from payment of purchase-money has been either refused or granted. 1 Long V. Israel, 9 Leigh (Va.), 569; Simpson u. Hawkins, 1 Dana (Ky.), 305 ; Ward v. Grayson, 9 id. 267. ' Beach v. Waddell, 4 Halst. Ch. (N. J.) 308 ; Young v. Butler, 1 Head (Tenn.), 646 ; Ingram v. Morgan, 4 Humph. (Tenn.) 66, infra; see also Woods V. North, 6 id. 309, infra. ' See supra, p. 116 et seq. * See the able opinion of Gibson, C. J., in Lighty». Shorb, 3 Pa. R. 477, in 684 THE JURISDICTION OP EQUITY fact of this knowledge on the part of the purchaser was strongly relied on by the court as a ground for refusing relief ; and although it is well settled that such knowledge is of itself no bar to his recovery upon the covenants themselves in a court of law,^ yet it is obvious that it should operate strongly, if not conclusively, against his right to equitable relief, where they are not yet so broken as to give a present right to actual damaged, and such has been the ground taken in several cases decided since these remarks were first written.^ Where, however, a purchaser would be entitled, at law, to defend from payment of the purchase-money, either wholly or partially, and has had no opportunity of doing so, a court of equity will not ' hesitate to grant relief according to the peculiar circumstances of the case. This may be done in various ways — by enjoining the collection of the purchase-money, either temporarily or per- manently — by enforcing specific performance of the covenants when necessary and possible^ — by awarding issues of quantum damnijicatus — or even, in some cases where the eviction has been total, by decreeing a rescission of the contract, and a return of the purchase-money already paid. Thus in a case where judgment was obtained upon a bond given for the payment of the residue of purchase-money, the vendor had, before the execution of the deed which contained covenants for this connection, though the student must be careful not to consider the Penn- sylvania cases generally on this subject, supra, p. 618, et seq., as having more than a local application. ' Supra, p. 117. ' Worthington v. Curd, 22 Ark. 285, citing the text; Busby v. Tread- well, 24 id. 456; Parkins v. Williams, 5 Cold. (Tenn.) 612, citing the text ; Henry v. Elliott, 6 Jones' Eq. (K C.) 176 ; Demaret v. Bennett, 29 Tex. 267. In Wailes v. Cooper, 24 Miss. 232 (supra, p. 602, n.), it was said, " Where the vendee, at the time of his purchase, knew of the defects of title, or the existence of incumbrances on the estate, and took a deed with covenants of war- ranty, he cannot at law avoid a recovery, even after eviction, but must rely upon the covenants. Nor will a court of chancery in such a case, as a general rule, grant any relief, but will remit the party to his covenants, such being the remedy provided for himself." In Refeld «. Woodfolk, 22 How. (U. S.) 319 where the contract was executory, the purchaser having notice, when he pur- chased, of the existence of a paramount mortgage, was held not to be entitled to require his vendor to indemnify him against its assertion, which, of course, was a stronger case for the vendee than the preceding ones, in all of which the contract was executed. See supra, p. 665. ' Supra, p. 660. AS TO COVENANTS FOE TITLE. 685 right to convey and of warranty, become surety upon a judgment, under which, after the execution of the deed, the use of the prop- erty for seven years was levied on and sold, and possession recov- ered by the sheriff's vendee, " the court, upon bill, answer and exhibits, having ascertained by a writ of inquiry the damages which the complainant had sustained on account of the incum- brance, decreed a perpetual injunction against the judgment to the amount of the assessment and costs." ^ So where after a bill had been dismissed in which the purchaser had sought to enjoin a judgment obtained for purchase-money, on the ground of an anticipated eviction, another bill was filed setting forth that since the former decree the purchaser had been actually evicted under an action of ejectment, in which his vendor and him- self iiad been co-defendants, it was held that the judgment should be perpetually enjoined.^ So where on a bill to foreclose a mortgage given for the pur- chase-money of land sold with covenants for quiet enjoyment, for further assurance and of warranty, the defendants proved that the title was defective — that an ejectment had been brought, of which the complainants were notified and required to defend — that judg- ' Shelby ». Marshall, 1 Blackf. (Ind.) 885. In Champlain v. Dotson, 13 Sm. & 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 ; see, also, Morgan V. Smith, 11 111. 201. '' Luckett:». Triplett, 2 B. Mon. (Ky.) 89. In Bowen v. Thrall, 2 Williams (Vt.), 382, land had been agreed to be conveyed by a warranty deed containing covenants for seisin and against incumbrances, but the deed as drawn, although it contained a covenant of general warranty, yet purported to convey only the ven- dor's right, title and interest, which is held in many cases to qualify and restrain a general covenant. The premises turned out to be incumbered by a mortgage previously given by the grantor, which it was proved the latter assumed to pay, but under which the mortgagee afterwards took possession of the premises. The court considered that if the deed had been drawn according to the contract between 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 pur- chaser (see Mills v. Catlin, 22 Vt. 104, and supra, p. 524, for cases where a covenant of general warranty is held to be restrained by a limited estate con- veyed). At law, therefore, the latter was without adequate remedy, as the deed must there be enforced as it was drawn, and as it contained no covenant against incumbrances, the purchaser had no defence at law to the note. A court of equity would, however, protect the rights of the parties under the contract, and 686 THE JUEISDICTION OP EQUITY ment had been entered in favor of the paramount title, and execu- tion issued — and that the defendants, to avoid a dispossession, purchased this title, the court held that the amount thus paid should be deducted from the mortgage debt, and referred the case to a master to ascertain the damages thus due for a breach of the covenants.^ enforce it in the same manner and to the same intent as if the deed had been drawn as it should have been, and whatever might be the rule at law, a court of equity would not permifa grantor to recover the entire purchase-money, and leave unpaid incumbrances upon the land which he was under obligations to dis- charge. The purchaser had a right to retain so much of the purchase-money as was sufficient to secure him against the incumbrances, particularly where the grantor was insolvent, and no adequate remedy could be had on his covenants. The suit at law was therefore enjoined until the incumbrances should be removed. ' Coster V. Monroe Manufacturing Co., 1 Green's Ch. (N. J.) 476. " I con- fess," said the Chancellor, " I have not been able to find this subject considered in the cases as I had expected, and yet it appears to me so obviously correct in principle that I cannot doubt its propriety. The great objection is the difficulty in this court undertaking to settle unliquidated damages. I know this is a diffi- culty, and yet in some cases a court of equity will, to effectuate justice, settle damages which are unliquidated. (See as to this. Lord Cairns' Act, &c., supra, p. 648.) But if this obstacle should be deemed insuperable, still it would consti- tute no sound objection to the court staying the complainant's recovery on his mortgage until a reasonable opportunity be affiarded the defendant to ascer- tain his damages at law, and then allow that amount to be offset. Which of these courses to ascertain the damages under the covenant should be pursued, might depend on the pecuHar circumstances attending the case ; but it would seem to me it should, as a general rule, be referred to a master, unless the complainant requires a trial at law. If the defendant claims the allowance here, he should be content with the forms of proceeding in this court, which is by reference to a master. To settle the damages, and thus close the whole controversy in one action, accords well with the familiar principles of a court of equity, of preventing a multiplicity of suits." But in the subsequent case of Hopper v. Lutkins, 3 id. 149, a purchaser filed a bill for an injunction, setting forth that the defendant had sold to him certain mills and water-rights with covenants for seisin, for right to convey, against incumbrances, and of warranty — that soon after, the defendant executed to him a bond to indemnify the complainant against an adverse suit brought by an adjoining owner to recover damages for an overflow of the dam by reason of its being at a greater height than the defendant had had a right to keep it — that the defendant was suing the complainant for the purchase-money, and was speedily becoming impoverished. It was a part of the complainant's case that the cove- nants were to have been so drawn as expressly to include the right to keep the dam at this height, but this was denied by the answer. The court held that the only equity in the bill was the charge of mistake, which had been wholly de- nied ; but that giving the complainant the full benefit of the covenants, the case AS TO COVENANTS FOR TITLE. 687 So in New York, where, on a similar bill, the defendant proved that under proceedings in partition 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 vendor's covenant.^ was clearly distinguishable from those in which a mortgagee was seeking the aid of that court to foreclose. " To carry out the relief sought, the injunction must continue until all the damages which the complainant can be put to (and which the coTCnants are designed to protect him against) are ascertained and sett'ed. This would be a very uncertain period, and proves to my mind that a ru e of this kind would be productive of great injustice. Whether these suits will ever be brought, or, if brought, will be repeated, is all beyond the power of this ocurt to know, as the action of the parties is beyond its power to control. How can this court, from the very course of its proceedings, ascertain, in any satisfactory manner, the damages sustained by the flow of this water ? Even at law, it is often difficult to come to a result. I have been furnished with no case that goes the length here desired. The complainant's counsel has referred me to the case of Johnson v. Gere, 2 Johns. Ch. 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 mort- gage, 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 deducted from the amount of the mortgage ; but how he would ascertain and adjust all the damages which this complainant may sustain, by maintaining the dam in question at its present height, is more than I am able to discover. It would be impracticable, in my view of the case, to do so with any certainty. It is true that the same principle pervades both cases, that of preventing circuity of actions, and allowing a set-off of damages under covenants against the purchase- money. The difference is that in the one case it is practicable to do so, and in the other it is not. In the recent case in this court of Coster v. Monroe Man. Co., 1 Green's Ch. 467, I went upon the force of authority so far, after a judg- ment had been obtained in ejectment against the mortgagor for a part of the premises, for which he gave the mortgage, and after a repurchase made by 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. I still think that view of the case correct and attainable, but I do not see how it can be pressed further, so as to reach every possible case of damages arising under covenants." This decision is obviously correct, and the later case of Glenn v. Whipple, 1 Beasley's Ch. (N. J.) 50 (supra, p. 678), proceeds upon the same ground. ' Fowler u. Poling, 6 Barb. 165 (see supra, p. 167, n.), overruling Fowler «;. Poling, 2 id. 300. 688 THE JURISDICTION OP EQUITY So in a case in Michigan, where the purchasers having given a mortgage for land which had been conveyed to them with a cove- nant against incumbrances, were subsequently compelled to dis- charge a paramount claim, it was obviously held that they were entitled to deduct the amount thus paid from their mortgage.^ In Missouri, moreover, provision is made by statute for the cases in which the jurisdiction of equity may be exerted in this behalf.2 Tliere have been exceptional cases which have determined that although the prosecution of the adverse title may not, of itself, be a suiBcient ground to entitle a purchaser to relief, yet that such prosecution, when coupled with the insolvency or non-residence of > Detroit E. R. Co. v. Griggs, 12 Mich. 51. " The Revised Statutes (1845, c. 82), provide, See. 1. "That in all cases ■where there shall be a sale and transfer of any lands or real estate, or a sale or transfer of any interest to any lands or real estate, and any part or the whole of the purchase-money thereof shall not be paid at the time of such transfer and sale, the purchaser of any such lands or real estate shall be entitled to an in- junction against all persons interested therein, in any of the following cases : First, where the grantor has covenanted a title to the lands or real estate sold in fee-simple, and the same has failed, or was wholly defective at the time of such sale ; second, where the grantor has a title as covenanted to a part only of the lands or real estate sold ; third, where there is a failure of title to the whole or any part of the lands or real estate sold by such grantor, and continues to be defective at the time of making the application for said injunction. " Sec. 2. Any court now authorized by law to grant injunctions shall have power to grant injunctions under this act ; but no such injunction shall be granted in any case, nor shall any relief be extended in any case where the purchaser has notice of the defect of title complained of by him, before the purchase thereof. " Sec. 3. In all cases arising under the provisions of this act, it shall be the duty of the Circuit Court, sitting as a court of chancery, to hear all facts relative to such case, and to make a final decree therein, according to such failure, as may be shown to exist in the title to said lands or real estate sold. " Sec. 4. The amount to be enjoined by such court shall be in proportion to the amount of failure of such title in the grantor, with reasonable damages to the purchaser, if any shall be sustained by such failure of title. " Sec. 5. This act shall not extend to any case where the grantor does not covenant a title in fee-simple to the lands or real estate sold. " Sec. 6. This act shall extend to cases where the grantor has executed bond for title to the lands or real estate sold, in the same manner as though such grantor had executed a deed for the same." The case of Jones v. Stanton, 11 Mo. 433, infia, p. 691, was not decided under this statute. AS TO COVENANTS FOE TITLE. 689 the party bound by the covenants, will bring the case within the quia izme^ jurisdiction of equity. ^ Thus in an early case in Virginia, an injunction was held to have been properly granted to restrain proceedings on a bond given for the purchase-money of land, conveyed with a covenant of war- ranty, upon the allegation that a suit was actually being'prosecuted under a paramount title, and that the vendor was insolvent.^ So in a case in Kentucky, where a purchaser's personal representatives filed a bill against the vendor to enjoin a collection by him of a judgment obtained for a balance of purchase-money due by their intestate, on the. ground that a judgiheut had been 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.^ So 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 seisin and of warranty, on the ground that his vendors had but an equitable title, and that a bill had been filed to subject the land to sale for a balance of purchase- money still remaining unpaid by them, and it was held that as the vendors were admitted to be utterly insolvent the complainant was entitled to relief.* So in Georgia, it was held that in injunction had been properly granted upon a bill setting forth that the complainant feared a loss ' Besides the cases cited infra, the student will find dicta to this effect in Percival ». Hurd, 5 J. J. Marsh. (Ky.) 672; Vance v. House, 6 B. Mon. (Ky.) 540; Trumbo ». Lookridge, 4 Bush (Ky.), 417; McLemore v. Mabson, 20 Ala. 139 ; Kelly v. Allen, 34 id. 670 ; Hoppes v. Cheek, 21 Ark. 588 ; Mc- Gehee v. Jones, 10 Ga. 135 ; Beebe ». Swartwout, 3 Gilm. (111.) 177 ; and Vick B. Percy, 7 Sm. & Marsh. (Miss.) 268 ; see also Bowen v. Thrall, 2 Wms. (Vt.) 382, supra, p. 685, n. 2. ' Stockton V. Cook, 3 Munf. (Va.) 68. For the course of decision in Vir- ginia, where the purchase-money is secured by a deed of trust, see supra, p. 682. 5 Jones V. Waggoner, 7 J. J. Marsh. (Ky.) 144. "If the appellees," said the court, " had a legal right to the damages for which relief is sought by them, the admitted insolvency of the appellant gave jurisdiction to the Chancellor, who, when he had possession of the case by injunction, had a right to retain it, and givcf full and final redress by decreeing a set-off and any other relief that was proper, and who ,for that purpose had a right to assess the damages for a breach of the covenant without the intervention of a jury, the criterion being fixed by the contract and the law." * Ingram v. Morgan, 4 Humph. (Tenn.) 66. The court, however, seemed to be of opinion that but for the covenant of seisin the vendor would have been 44 690 THE JURISDICTION OP EQUITY of the land under prior incumbrances covered by his covenants, and that the vendor was a non-resident, and had no property within the State,! and in a case in North Carolina, it was held that the complainant's bill could not be sustained, where the defendants within the jurisdiction of the courts of law of that State, for the reason that the law could give complete relief in an action of cove- nant on the warranty contained in the deed of the defendants, but as they were non-residents tlie court would not permit the defend- ants to recover the purchase-money for the land, the title to which was admitted to be defective, leaving to the plaintiff the precarious remedy of suing in the courts of another State for the purpose of getting back the same by way of damages in an action for the without relief, as it was said, " This (covenant) differs from a covenant of war- ranty where there is no present right of action, and can never be till eviction, which may never take place ; and where, therefore, a court of chancery will grant no relief against the payment of the consideration, on the joint ground of a defect of title and the insolvency of the vendor." ' Clark V. Cleghorn, 5 Ga. 225. In Vance v. House, 5 B. jMon. (Ky.) 540, it is said, " A bill for the. dissolution of the contract cannot be sustained, and the payment of the consideration enjoined, except in the case of fraud, insol- vency or non-residency of the vendor, and a palpable and threatening danger of immediate or ultimate loss, without legal remedy, by reason of the defects in the title conveyed, and the inability of the vendee to protect himself against eviction under it. And to sustain such a bill after the vendee has accepted the conveyance, the onus lies on him to establish, to the satisfaction of the Chance - lor, that the defect of title and imminent danger of eviction and loss exist." See also the remarks in Woodruff v. Bunce, 9 Paige (N. Y.), 444. In Ingalls «. Morgan, 12 Barb. S. C. (N. Y.) 678, the purchaser filed a bill to restrain the holder of a paramount judgment from selling the land under it, on the ground that at the time of the purchase it had been agreed between the vendor and the judgment creditor that the notes to be given for the purchase- money by the complainant, who was then ignorant of this judgment, should be applied by the vendor to its payment ; that the first note was so applied, but that the vendor afterwards became insolvent, and the judgment creditor, in knowledge of this fact, redelivered the remaining notes to the vendor, who passed them to third persons, to whom their amount was paid by the complain- ant. The court were clearly of the opinion that the arrangement referred to must be regarded as an application of the notes to the payment of the judgment, in satisfaction and discharge of its lien upon the land ; that the purchaser therefore took the land freed from its lien, and that the retransfeV of the notes to the vendor, when he was known to be utterly unable to respond in damages for a breach of the covenants in his deed, was an act of bad faith tow- ards the purchaser, and a perpetual injunction was therefore decreed. AS TO COVENANTS FOR TITLE. 691 breach of the covenant of warrantj,i and the doctrine of these cases has been recognized in many others.^ In Missouri, however, the court seem to have gone farther than the current of authorities would sanction. A purchaser filed a bill to enjoin a judgment recovered by his vendor for a balance of pur- chase-money of certain land sold with statutory covenants for the title, alleging that the vendor's title extended to but one-half of the land, and that he was insolvent. It appeared by the proofs that the defect of title was undoubted, and that the purchaser was still in possession, but the proof as to the vendor's solvency was some- what contradictory, and the court held that, upon the whole, taking into consideration the admitted defect in the vendor's title, and the just doubt existing in relation to his ability to pay his debts, they were warranted in requiring a stay of the collection of the debt, until the vendor should give a bond with security indemnifying the purchaser against any loss he might sustain, in consequence of the defect of title,^ but this case seems open to much consideration. But where there is no actual prosecution of the adverse title or incumbrance, it seems that the insolvency or non-residence of the vendor will not, when coupled with the mere existence of such title or incumbrance, give to the purchaser a right to equitable relief. Thus in a case in Mississippi,* where there was no eviction, actual or threatened, it was held that, under the repeated decisions in that State,^ the insolvency of the vendor could not help the position of the purchaser. So in a case in South Carolina, where the pur- chaser, after having been ten years in possession, was advised by his counsel that there was an outstanding title in minor children, and filed a bill for a rescission of the contract, alleging the insol- vency of his vendor ; upon the facts in the bill being admitted in the answer, the court held that it was impossible to assimilate the ' Green v. Campbell, 2 Jones' Eq. (N. C.) 446. In the later case of Falls V. Dickey, 6 id. 358, the bill alleged that the vendor was a non-resident, but did not aver that he had no property in the State, and this omission was held to be fatal to his relief See also Richardson v. Williams, 3 id. 116. ' Walton u. Bonham, 24 Ala. 613 ; Wray v. Furniss, 27 id. 471 (see also the remarks in CuUum v. Bank at Mobile, 4 id. 21, supra, p. 604) ; Busby v. Tread- well, 24 Ark. 458 ; Brooks v. Moody, 26 id. 462 ; Hatcher v. Andrews, 6 Bush (Ky.), 562; Young v. Butler, 1 Head (Tenn.), 648. * Jones V. Stanton, 11 Mo. 433. The facts in this case occurred before the passage of the Missouri statute, cited supra, p. 688. * Latham v. Morgan, 1 Sm. & Marsh. Ch. 618. * The decisions referred to, however, are not given. There are dicta to that effect in Vick v. Percy, 7 Sm. & Marsh. 268, and Wailes v. Cooper, 24 Miss. 233. 692 THE JURISDICTION OP EQUITY case to a bill quia timet} So in a case in Kentucky ,2 it was held that if the insolvency of the vendor were to be a ground for equity to interfere, still a chancellor ought not to go further than to the extent to which a court of law would go in assessing damages for the part lost. If equity could interfere by reason of the insolvency of the warrantor to arrest the payment of the purchase-money, or any part of it, it would be only by clear evidence of eviction or un- doubted defect of title, so as to show the covenant of warranty broken,^ and by stopping payment of so much of the purchase- money as was equal to the damages incurred by the breach. So in the same State it was held that the admitted insolvency of the vendor was no ground for an injunction where one of the paramount owners, all of whom were minors, merely declared his intention of suing for the part belonging to him,* and the same doctrine is announced in late cases in Arkansas.^ So in a case in the Supreme Court of the United States, where a purchaser bought with a covenant of general warranty, and find- ing after the execution of his deed that a complete cliain of title could not be deduced, filed a bill for the rescission of the contract, on the ground of the defective title, and in a subsequent bill of revivor against the heirs of the vendor, alleged that he had died insolvent, the court below had rescinded the contract, but the ' Maner w. Washington, 3 Strob. Eq. (S. C.) 171. "The purchaser," said the Chancellor, " had the legal enjoyment of the land, in which he might never be interrupted ; but if that contingency should occur, he had a plain and ade- quate remedy against the vendor for the breach of his covenant, and the possi- bility or even probability of 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 equity, except upon the ground of fraud, to rescind it, but must rely upon the covenants of his deed for redress." = Rawlins v. Timberlake, 6 Mon. (Ky). 282. ^ It will be of course remembered that this covenant is only broken by an evic- tion, or somitMng equivalent to it; supra, p. 144 et seq. And in Kentucky it seems to have been held, in some cases, that a judgment of a court of record in favor of the paramount title was sufficient to constitute an eviction. Such a doctrine,"however, does not generally prevail ; see supra, p. 229. * Wiley V. Fitzpatrick, 3 J. J. Marsh. (Ky.) 683 (infra, p. 695 ; Trumbo V. Lockridge, i Bush (Ky.), 416. * Worthington v. Curd, 22 Ark. 284, citing the text ; Hoppes v. Cheek, 21 id. 590. AS TO COVENANTS FOR TITLE. 693 Supreme Court were clearly of the opinion that unless the ground of insolvency alone was sufficient to sustain it, the decree of that court could not be upheld, and that it was not sufficient, the court had no doubt,^ aijd this decision has been approved in later cases in the same court.^ In cases, however, where all the parties to the title are before the court — the vendor, the purchaser and the paramount claim- ant — and an equitable adjustment can therefore be made of their mutual rights, the fact of insolvency or non-residence seem to have been admitted to be a material circumstance. Thus where in a case in Kentucky,^ upon a bill praying relief against a judgment * for the purchase-money of land sold with a general covenant of warranty, it appeared that a prior mortgage had been given by a former owner of a large tract, of which this was part — that the greater part of the mortgage debt had been paid, and the mortgagor was willing to pay the balance, but the mortgagee refused to receive it ' Pattonjj. Taylor, 7 How. (U. S.) 132. Nelson, J., after citing the cases of Bumpus V. Plainer, 1 Johns. Cb. 213 ; Abbott v. Allen, 2 id. 619 ; Gouverneur «. Elmendorf, 5 id. 79 ; Simpson v. Hawkins, 1 Dana, 305 ; and James v. Mc- Kernon, 6 Johns. 543, said that these cases showed "that a purchaser in the undisturbed possession of the land will not be relieved against the payment of the purchase-money on the mere ground of defect of title, there being no fraud or misrepresentation ; and that in such a case he must seek his remedy at law on the covenants in his deed." ^ Refeld v. Woodfolk, 22 How. (U. S.) 318 (where the contract was execu- tory) ; Noonan v. Lee, 2 Black (U. S.), 507, supra, p. 681. The strongest modern case upon the subject of insolvency creating a distinct equity, seems to be the Tuscumbia Railroad Co. v. Rhodes, 8 Ala. 206, where many authorities are collected and examined. The complainant, being indebted to the company on an open account, the latter assigned it to a third party, who commenced suit and obtained judgment thereon. Pending the suit, the com- plainant 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 a reargument, their former opinion), that although independently of the insolvency of the company the complainant had no right of set-off whatever, either in law or equity, yet that 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 man- ner in which it was created, until the company either relieved him from or indem- nified him against his obligation. See also Hupp v. Hupp, 6 Gratt. (Va.) 310. ' Morrison «, Beckwith, i Mon. (Ky.) 73. * There were, in fact, two judgments, but as to one of them it was held that the complainant had barred his equity, by representations made by him at the time of the transfer of the security on which the judgment was founded. A similar decision was made in Jaques v. Esler, 3 Green's Ch. (N. J.) 461. 694 THE JURISDICTION OP EQUITY till a certain suit had been determined — and the bill made both the mortgagee and mortgagor parties, together with the vendor, who it appeared was insolvent, it was held, that although equity would not, in general, grant relief where a contract was executed, but would leave the purchaser to his action on the covenants, yet ^hat in the case of the insolvency of the vendor it was competent for the vendee to go into equity, without intending to rescind the contract, to procure the appropriation of the purchase-money to the removal of the incumbrance, and that upon this ground alone could the bill be held tenable.^ So in a subsequent case, where a ' The following portion of the opinion will show the manner in which, when all the parties are before the court, their respective rights can be mutually adjusted. " As the complainants ha.ve prima facie shown a ground for coming into a court of equity, the question remains, what relief is to be granted? Is a perpetual injunction the proper redress ? We conceive not. If that is granted, the complainants may forever keep the estate and also this part of the purchase- 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 estate in controversy. If that can be done, without the application of the money in contest, then Churchill (the holder of the judgment) will be entitled to a dissolution of the injunution ; but if a part of this money is necessary to remove the burden, then the complainants can be entitled to relief as to such part only, not by being discharged from the payment of it, but by directing its payment for their security. By inspecting the mortgage, it will be seen that the estate mortgaged is a large one, and the price considerable, and all but a 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 operation, and when it is made to bear on 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 mortgage ; Stevens v. Cooper, 1 Johns. Ch. (KT. Y.) 430. It is also a correct doctrine that as between these purchasers and the mortgagor, if he holds a proportion of the estate himself, such portion must first be subjected entire. If it discharges the demand, the purchasers are clear ; if it does not, then they must contribute proportionably to make up the residue. " Now it seems more than probable, even if Cosby has sold the whole estate mortgaged by him, so that the balance due from him must fall on every part equally, that the proportion of that balance which will fall to the share of the complainants will not be nearly equal to the sum which they have in their hands, now claimed by Churchill. But if Cosby has not parted with the whole estate, but still retains a portion thereof, that portion may be more than equal to the discharge of the balance due on the mortgage ; and these facts must be ascer- tained before it. can be clearly perceived what redress is to be given to the com- plainants. " The proper mode to ascertain this is jto direct an account to be taken by a commissioner of the sums paid and balance due on the mortgage, between AS TO COVENANTS FOE TITLE. 695 purchaser filed his bill to enjoin a judgment given for the purchase- money of land sold with general warranty, on the ground that by a prior partition the more valuable portion of the land had been conveyed to one whose heirs he made co-defendants with the ven- dor, who it was admitted was insolvent, and the court below granted an injunction, the decree was reversed on appeal, upon the express ground that no decree had been prayed for against those heirs, and that all of them had not been served with process.^ Cosby and Mrs. Beard's representatives, showing the true balance ; also of the value of the whole estate mortgaged, at the date of the mortgage, and of the part sold by Morrison (the vendor) to the complainants, so that the proportion of the mortgage-money chargeable thereon may be clearly seen. By the same proceeding it must be 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 refuse to receive the money from Cosby, or Cosby declines paying it. If he receive, and he shall pay or secure it, then there will be no further obstacle to the dissolution of the injunction. If the obstruc- tion is not thus removed, and Cosby shall retain at this time a portion of the estate amply sufficient to discharge the balance due, and he will not otherwise indemnify the complainants, then he must be compelled to execute to the com- plainants a mortgage on the estate so retained by him, defeasible on his paying the balance to Sarah Beard's representatives, and 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 contest, must be decreed to Sarah Beard's representatives, and the injunction of the complainants must be dissolved as to the residue. It might be equitable to decree the amount for which the injunction shall be perpetuated in this event, in favor of Churchill against Cosby, as he would be entitled to stand by substitution in the place of a purchaser from Cosby. But this cannot be granted to him in this suit, as he has not interpleaded with Cosby, or shaped his defence in such a manner as to entitle him to decree against his co-defendants. His claim in this respect must therefore be left to some future mode of redress." ' Wiley w. Fitzpatriok, 3 J. J. Marsh. (Ky.) 582. The court held that had the complainant brought the proper parties before the court, and by a prayer in his bill compelled these heirs either to insist upon and exhibit their title to the part in question, or yield it to him, the decree of the court below would have been correct, unless it should appear that their title was invalid. But the contract should, as to that part, be rescinded, if the vendor had conveyed no title to it, as it would be unjust to permit the purchaser to hold the deed for it, and yet have the injunction for the price of that part perpetuated, and leave was given to the complainant to amend his bill if he thought jjroper, so as to bring all the proper parties before the court.. 696 THE JURISDICTION OF EQUITY So in a later case, it was held, after much consideration, that where the vendor was alleged to be insolvent, and there were just grounds for fearing an eviction, the Chancellor might interpose and suspend the payment of the purchase-money, although the con- tract had been executed by a conveyance. But the court regarded it as indispensable^ that if there had been no eviction, all the par- ties interested should be brought before the court, which could then settle their respective rights ; and for want of this precaution, the decree of the court below, restraining the collection of the purchase-money, was reversed. ^ The principle of these cases is one of general application, and has been elsewhere recognized.^ And, lastly, as to the jurisdiction in the reformation of contracts. It has long been settled that if, by reason of fraud or mistake, accident or surprise, an instrument does not express the true ' Simpson v. Hawkins, 1 Dana (Ky.), 303. The complainants had leave granted to amend their bill as in the case last cited. The following language' was held by Underwood, J., as to the complainant's equity to rescind the contract : " Regarding the protection which time had thrown round the vendors, perceiving no actual fraud on their part with the purchasers, and seeing that the contract has been fully executed by a formal conveyance with warranty of title against all the world, which warranty has not been broken by an eviction from the premises, and for aught that appears to us never will be, we cannot concur with the Circuit Court in a total rescission of the contract. Indeed, where contracts are executed by conveyances, we are of opinion that there can be no rescission of a contract in any case, unless it has been tainted by actual fraud. If the warranty of title has been broken, so as to entitle the vendee to damages, or if the vendee be entitled to damages upon a. covenant of seisin, he may apply to the Chancellor, where the vendee is insolvent, to set off those damages against the unpaid por- tion 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 insolvency. He ought not to act upon the principle of rescinding the contract. On the contrary, he should affirm the contract, and secure to the party such damages as he might be entitled to, for a partial or total violation thereof by the obligor. If a deed of conveyance be executed, for any quantity of land, and the vendee is put into possession thereafter, in case he loses half or three-fourths of the land, the law only authorizes a 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." " Davis V. Logan, 5 B. Mon. (Ky.) 341; Denny v. Wickliffe, 1 Met.. (Ky.) 226; Hatcher v. Andrews, 6 Bush (Ky.), 562; Shannon v. Marselis, Saxton (N. J.), 413 ; Atwood v. Vincent, 17 Conn. 675. AS TO COVENANTS FOE TITLE. 697 intent and meaning of the parties, equity will, upon sufficient evidence, reform it, and carry it into execution as reformed. The rule of the common law that parol evidence shall not be admitted to contradict or vary a written contract rests upon the ground that " the written instrument in contemplation of law con- tains the true agreement of the parties, and that the writing fur- nishes better evidence of the sense of the parties than any that can be supplied by parol. But equity has a broader jurisdiction, and will open the written contract to let in an equity arising from facts perfectly distinct from the sense and construction of the instru- ment itself." 1 And of course this familiar branch of jurisdiction applies to cove- nants for title. The real difficulty is the sufficiency of proof. When the true intention of the parties, however defectively expressed, sufficiently appears on the face of the instrument, of course it needs no re- formation — a court will construe it according to the intention thus appearing. When the true intention does not so appear, and the parol evidence is in aid of other evidence, there may be but little difficulty as to the jurisdiction ; but when that which was written is sought to be modified and reformed merely by that which was said, it is easy to see that unless the proof be very clear, fraud would be more promoted than prevented by the reformation of contracts. An examination of the cases will show that although in the reports of some of them the question of evidence may not perhaps have been set forth with sufficient prominence, yet that this prin- ciple has been steadily kept in view. In the early case of Coldcot v. Hill,^ the complainant having purchased church lands under the title of Cromwell, sold them to the defendant's testator with general covenants for the title. Upon ' Per Kent, C. in Gillespie v. Moon, 2 Johns. Ch. (N. Y.) 585. See also Judge Hare's statement, supra, p. 118. For the rule of the common law, both before and since the passage of the statute of Frauds (not always free from fluctuation), the student may refer to the notes to the leading case of Doe d. His- cocks ». Hiscocks, Tudor's Lead. Cas. on Real Property (2d. Eng. ed.), 819, and, of course, Sir James Wigram's familiar treatise, and for the rule in courts of equity, to the notes to Woolam v. Hearn, 2 Lead. Cas. in Eq. (3d Am. ed.) p. 679; id. (4th Eng. ed.) vol. ii. p. 484. ^ 1 Cases in Chancery, 15 ; Freem. 173 ; 1 Sid. 328, nom. Coldecot v. Hide. 698 THE JURISDICTION OP EQUITY the Restoration, the estate was avoided, and the defendant, in an action on the covenants, obtained judgment for his purchase-money, upon jvhich the vendor filed a bill to enjoin its collection, " which did suggest a surprise upon the plaintiff in getting him into that covenant, and that it was declared by Dr. Coldcot, when he sealed, and the defendant's testator, that it was intended Dr. Coldcot should not undertake any further than against himself; " and there being proof of ihis,^ the purchaser was decreed to enter satisfaction on the judgment and pay costs.^ ' That is to say, " Upon the hearing, it was proved that the matter of the covenant upon which the judgment was had against the plaintiff was contro- verted in the paper draught, and put out by the plaintiff's counsel, and in again by the defendant's counsel, with the alteration only that whereas the covenant was that the plaintiff was lawfully seised, &c., the plaintiff's counsel put out (lawfully), which signified nothing; for to covenant one is seised, is intended lawfully. But some proof being that it was declared upon sealing that the plaintiff should undertake for his own act only, it was decreed that the defendant should acknowledge satisfaction on the judgment and pay costs.'' 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 before. ' "Cases in Chancery" is "notoriously a book of doubtful authority" (Wallace's Rep. 297), but the report in Freeman (himself a reporter not always without reproach) is substantially the same: "Dr. CoUicot having purchased the fee of church lands, sold them with a general covenant ; the church is restored, the lands evicted, the vendee brings covenant and recovers the value of the lands ; the plaintiff in his bill suggests that the said covenant was gotten by surprise, and that it was agreed only that he should covenant against his own act, which appearing upon proof, the court ordered the defendant to acknowledge satis- faction of the judgment. The like between Ferrar v. Ferrar, about six months before." The entry in the registrar's book is, " The court, upon consideration that the covenant for enjoyment was intended only against acts done by the plaintiff or his trustees, and that the agreement to that effect was fully proved, declared the plaintiff ought to be relieved against the covenants inserted in the deeds and the judgment obtained thereon, and did therefore decree the defendant to acknowledge satisfaction on the said judgment, and to release all errors, and that no more actions should be brought on the said covenant, and for that end awarded an injunction against the defendants. The plaintiff to have his costs." In the earlier editions of his treatise, Sugden said, " But whatever difficulty there may be of admitting parol evidence singly, yet if is always admitted when it is corroborated by other evidence. This doctrine was carried a great way in the case of Coldcot v. Hide; " 1 Sugd. on Vend. (10th ed.) 262. In the Uth edition, this last sentence is omitted. For two cases in which Sugden him- self, while Chancellor of Ireland, exercised this jurisdiction, see Alexander v. Crosbie, LI. & Goold (temp. Sugd.), 145 ; and Mortimer v. Shortall, 2 Dru. & War. 363. AS TO COVENANTS FOR TITLE.. 699 In another case, eleven years after,^ a bill was filed to enjoin a judgment obtained upon a general covenant that the grantor had lawful power to convey, "which being contrary to the true -intent and meaning of the said parties, and it appearing so in the convey- ance, where the rest of the covenants are restrained to the acts done by the plaintiff and all claiming under him, and that the cove- nants ought to be so restrained, especially since the purchaser knew the plaintift's title, and that he sold him only such estate which he had in the premises,^ . . . the court decreed, that the general words in this covenant ought not to oblige the plaintiff; being contradicted by all the subsequent covenants, and the plain- tiff selling only such an estate which he had, therefore it was ordered that the defendant acknowledge satisfaction on the judg- ment he had obtained, and a perpetual injunction to stay all pro- ceedings at law.^ And upon the authority of these and other analogous cases, Sugden has said broadly, " If general covenants for title are entered into contrary to the intention of the parties, equity will, on sufficient proof, correct the mistake in the same manner as errors are corrected in marriage articles, and will relieve ' Fielder v. Studley, Rep. temp. Finch, 90. ^ " And nerer took any advantage or questioned the plaintiff in any of the covenants in the deed, but continued in the possession and received the profits thereof for ten years and upwards, and after the Restoration, he or his son took a new lease of the Dean and Chapter of Sarura for three lives, and had a con- siderable abatement of the fine, in respect of the purchase made by the plain- tiff." ^ "This last case," said Sugden, "was quoted in a case in the Common Pleas before Lord Eldon (Browning v. Wright, 2 Bos. & Pull. 26), who thought the decision must have been made on the ground of the intent of the parties appearing on the instrument, since that intent, and the consequent legal effect of the instrument, could only be collected from the instrument itself, and not from any thing dehors. In a still later case in the same court (Hesse v. Stevenson, 3 Bos. & Pull. 575), Lord Alvanley thought, under the circumstances of the case, that the application was made to the Court of Chancery to correct the mistake, in the same manner as applications are made to that court to correct marriage articles, where clauses are inserted contrary to the intent of the parties. ' It seems clear, however, that the relief in this case was founded on parol evidence that the vendor sold only such estate as he had, corroborated as it was by the form of the deed and the subject of the contract. Such evidence was received in the prior case of Coldcot v. Hide, and is still clearly admissible." 1 Sugden on Vendors (10th ed.), 262, but in the last edition (the 14th) this passage is omitted. y 700 THE JURISDICTION OP EQUITY against any proceedings at law upon the covenants as they origi- nally stood." 1- And upon this side of the Atlantic the law is equally well settled. In a very early case in Kentucky,^ a deed which contained a limited covenant of warranty was reformed upon evidence tliat the grantee, at the time of its execution, objected to a covenant of such narrow extent, but yielded upon the assurance of the draughtsman and others present, that the real meaning of the covenant was that if the land were lost from whatever cause, the purchase-money with interest would be refunded.^ So where the complainant alleged that when he sold to the defendant it was made known to the latter that a railroad company had laid its track across the land, and that damages had been paid therefor, and that certain other damages for another part of the land were to be paid to the defendant, in consideration whereof the latter was to make no claim on the covenants for title in the deed, yet that notwithstanding his agreement, the defendant had sued the complainant at law upon the covenants, the court, although the answer denied the facts, considered them proved by the testi- mony in the case, and afi&rmed the decree below restraining the proceedings at law.* ' Sugden on Vendors (14th ed.), 610. This is also said in the previous edi- tions. ■' Coger ». McGee, 2 Bibb, 321. ' The opinion in this case fully recognizes the danger of giving " too easy an ear to the effect of parol evidence in contradicting or varying the terras of a written contract," but the evidence, as it appears in the opinion, was quite suffi- cient to overthrow the positive denials of the answer. * Taylor v. Gilman, 25 Vt. 413. " There can be no doubt," said the court, "that on the trial of that action of covenant at law, the right of the railroad upon these premises would be considered a breach of the covenants in the deed, and the party would be entitled to recover his damages therefor. The right of action on those covenants for that matter cannot be affected or controverted by the introduction of parol testimony altering or varying the obligation created by the express covenants contained in the deed. . . . The jurisdiction of a court of equity on this subject is well defined, and in the exercise of their powers they are governed by the same general rule of evidence that exists at law. ... To this general rule, however, in equity, exceptions have been introduced in cases of mistake, accident and fraud. . . . On a bill properly framed, and competent proof that either of those causes exist, the covenants in a deed may be converted so as to conform to and express the real contract of parties. " It would seem from the testimony thatthere is no ground for relief in conse- quence of any accident or mistake, for the deed and its covenants were drawn as AS TO COVENANTS FOE TITLE. 701 So in a recent case,* where the complainant conveyed land to the defendant by a deed containing printed general covenants for title, after which were written the qualifying words " claiming through or under us," and it turned out that there was a paramount mort- gage created by a former owner, which was unknown to either vendor or purchaser,^ and which the defendants having been com- pelled to pay, had then sued on the covenants, upon a bill filed to reform the deed and restrain the proceedings at law, the court, having no doubt as to the sufficiency of the proof, granted the relief.^ they were, understandingly ; tlie attention of the parties and the scrivener was called at the time to this matter of which they now complain ; so that they inten- tionally neglected to make those covenants conformable to the true contract of the parties. There was, therefore, no accident or mistake, either in fact or law, existing in the case. Neither does the bill set up any mistake or accident of the parties in the drawing or execution of the deed or covenants, as a ground of equitable interference. " The only ground, therefore, upon which this testimony can be received, to control the legal efiTect and operation of these covenants, is the fraud of the party in attempting to enforce them in violation of his agreement. The evidence is regarded as sufficiently certain and clear in the proof of that contract, that the damages to be paid by the railroad for their right in the premises were to be divided between these parties in specified proportions, and that no claim was to be made on the grantor, on his covenant in this deed, for any matter arising out of that negotiation ; and evidently it was in confident reliance upon this under- standing, that the grantor neglected so to qualify his covenant that no right of action should arise thereon for that matter. Regarding these facts therefore as sufficiently proved, and the bill as sufficiently setting up the fraud and asking for relief on that ground, we think the case is brought within the general rule upon which relief is granted." » Crura V. Loud, 23 Iowa, 219. ° With the registry acts which are in force in all our States, this case is but another instance of the carelessness of conveyancing which is sometimes found. ' The grounds upon which the court rested the opinion were thus stated : " The plaintiff loaned to one Bowles seventy dollars, and took a deed for these premises as security. Bowles sold to defendants, and they borrowed of plaintiff an additional sum to complete their payment, he executing a bond, which recited that ' I hereby agree to sell and convey of warranty to, &c., and their assigns, all the title that James C. Bowles and his wife have this day conveyed to me by warranty.' There is testimony tending to show that when the money was paid, plaintiff proposed to make a quitclaim deed, claiming that such was his con- tract; that there was some controversy, and that finally defendants agreed to accept such a deed ; that he endeavored to obtain a printed form appropriate to the purpose, and being unable to do so, undertook to secure the same end by adding the words found in the deed, at the close of the covenants in a 702 THE JURISDICTION OP EQUITY The difference between the doctrines enforced in the courts of law and of equity as to this subject is well shown in some rather recent American cases. Thus where grantors covenanted that their heirs, executors and administrators (not themselves) would warrant and defend the title, and the purchaser, being evicted, sued the grantors, it was held that the latter were not liable.^ The covenant was not that the grantors would defend the title, but that it would be defended by their heirs, executors or administrators.^ It might, deed of general warranty; and that the parties mutually understood and in- tended, in fact, to give and take a conveyance by quitclaim. And that this was the real intention of the parties, it is claimed is shown, first, by the lan- guage of the deed itself, in connection with the fact that these words were written ; second, by the tenor of the bond ; third, by the title and circum- stances under which plaintiff held ; fourth, by the improbability that plaintiff would thus covenant as to a title which he had not examined, and when the amount loaned bore so small a proportion to the full value of the land ; fifth, by the positive testimony of plaintiff and another witness as to the real inten- tion and understanding ; sixth, the flagrant and manifest injustice of holding plaintiff for incumbrances under his covenants, when defendants bought of Bowles and knew that plaintiff, as to them and their vendor, held the title as a mortgagee and trustee, having no claim or interest in the property beyond the amount thus loaned and secured. And conceding the [rule that it was plain- tiff's duty to make out his case by proof clear and satisfactory, the majority think that this has been done, and that he is entitled to the reformation of the contract asked. The rules applicable are not controverted. Each case stands very much upon its own circumstances, and I am instructed to thus state the result reached, which I do without entering at length into a discussion of the testimony or the law applicable." ' Rufner v. McConnel, 14 111. 168. ' " It does not give," the opinion went on to say, " a right of action against the grantors on the loss of the title, but it provides a remedy against their legal and personal representatives. It exempts the grantors from personal liability, but it binds their descendants in respect of the estate that maybe cast upon them. It is not like a covenant that a person who is not a party to the deed shall warrant and defend the title. In such a case, upon the eviction and the failure of such third person to comply with the terms of the covenant, an action might be maintained against the grantor. It would be sustained on the familiar principle that what a party undertakes shall be done by ahother, he must perform on the default of that other. But this case is essentially different. The cove- nant is that the act shall be performed by parties who can have no legal existence during the life of the grantors ; while they survive, they can have neither heirs nor executors or administrators. The covenant postpones the remedy for a failure of the title until the decease of the grantors, or one of them. Until such an event transpires, there is no party in esse who can be called on' to avouch the title. This is the only construction that can be put on the covenant. It is, AS TO COVENANTS FOE TITLE. 703 however, be that it was the real intention of the parties that the grantors should warrant and defend the title, but it was not com- petent for a court of law to hear proof of the intention and relieve the mistake. If there were such a mistake, the plaintiff must apply to a court of equity and have the deed reformed, and when that was done, he might bring an action against the grantor and assign breaches on the covenant.^ So in a case in equity in Massachusetts, where the defendants agreed to convey a tract of land to the plaintiif with a covenant that they would warrant that the same contained seven acres, and a deed was subsequently drawn with such a covenant, which, how- ever, was afterwards fraudulently erased by the defendants without the knowledge of the plaintiff, it was held that the latter, who filed a bill to rescind the contract, was entitled to relief.^ And even in those States in which codification has either swept away or at least modified the distinction between law and equity, and in which, therefore, the eqiiitable doctrine would be en- indeed, an unusual covenant, but that does not help the plaintiff. Parties are allowed to make their own contracts." ' In Stanley v. Goodrich, 18 Wis. 505, however, where the facts were similar to those in Rufner v. McConnel, supra, this distinction does not seem to have been very carefully observed, although the case can perhaps be supported upon other grounds. Upon the petition of a covenantor to be admitted as a defendant in an action to foreclose a mortgage executed by him prior to his conveyance to the defendant with whom he had covenanted not for himself, but for his heirs, executors and administrators to warrant and defend the land, it was urged that as the above covenant did not bind him personally, he was not in- terested in the result of the action, but the court, in giving judgment for the petitioner, said : " As to the omission of the word ' himself in the covenants of the deed, we do not dwell much upon that. There can be no doubt of the inten- tion of the parties, and if the covenants are not technically valid at law, a court of equity, in conformity to the intention of the covenantor, will soon make them so." " Metcalf ». Putnam, 9 Allen, 98. " Upon elementary principles," said Bige- low, C. J., " the plaintiff is entitled to have his deed reformed so that it may truly set forth the whole contract, and that the plaintiff may thus obtain the means of redressing the wrong which the fraudulent acts of the defendants have occasioned. That such redress could not be had at law is too clear to admit of debate. The plaintiff could not, in an action at law for the breach of the alleged agreement, introduce parol evidence to prove it. He would be shut out of such proof by the rule that oral evidence is inadmissible to add to or vary a written contract. It would there be said that the oral contract was merged in the deed. But equity furnishes relief in such cases, which the law is inade- quate to afford." 704 THE JURISDICTION OP EQUITY, ETC. forced whenever otherwise properly applicable, there may arise cases ia which the machinery substituted by codification may be inadequate to proper relief. Thus in a case in New York (where it is familiar that all such dis- tinction has been abolished by the Eevised Statutes), the complaint alleged that the defendant purchased from the plaintiff a farm, sub- ject to a mortgage which the former agreed to pay, but by mistake the plaintiff inserted in the deed a covenant that the premises were free from all incumbrance. The mortgage being subsequently foreclosed, the defendant sued on this covenant, when the plaintiff commenced this suit and prayed that the deed be reformed and the defendant restrained from proceeding in his action on the cove- nant. To this the defendant demurred, upon the ground that while the former action was pending these facts could not be made the subject of a separa,te suit, but the court held that, as the plain- tiff could not have obtained relief in the action on the covenant, he was entitled to a decree, and the judgment below dismissing the complaint was reversed. ^ ' Haire v. Baker, 1 Selden (N. Y.), 857. Foot, J., dissented on the ground that the plaintiff's contention was, he thought, cognizable as an equitable defence in the action on the covenant. INDEX. A. ABSENCE OF TITLE, of itself no defence to payment of securities given for purchase-money, 698. ABSTRACTS OF TITLE, how excepted incumbrances noticed in, 122. ACCEPTANCE, of estate does not operate as estoppel on purchaser, 453. unless possessed of paramount title at time of conveyance, 455. ACCIDENT, when ground for reforming covenants in equity, 696. ACCORD AND SATISFACTION, when bar to action on covenants, 350, n. when a proper plea, 567, n. ACRES, enumeration of, does not imply covenant for quantity, 623. ACTION, circuity of, how prevented by doctrine of estoppel, 393. by allowing purchaser to detain purchase-money, 585. of covenant, when founded on privity of contract, is transitory, 533. aliter when founded on privity of estate, 534. parties to, on joint and several covenants, 657-660. of deceit, when it lies, 573, ■«. purchaser's remedy, as plaintiff, is in covenant, 586. ACTS, what may be required under covenant for further assurance, 196. "ACTS AND MEANS," effect of, in covenant for quiet enjoyment, 129. ACTUAL EVICTION. (See Eviction.) ACTUAL SEISIN, in some States, sufficient to support covenant for seisin, 66-77. origin of doctrine, 56. dissent from it, 61. (See Seisin, Covenant foe.) 45 706 INDEX. ADMmiSTEATION OF ASSETS, when specific performance of covenants enforced in, 659-663. (See Marshalling Assets ; Specific Performance.) ADMINISTRATORS, covenants by, when personally binding, 49. do not bind estate, 50. (See Executor.) ADVERSE ENTRY, under paramount title is an eviction, 146. ADVERSE POSSESSION, connection of doctrine with champerty acts, 69-75. mere fact of, will not invalidate conveyance, 68. when breach of covenant for seisin, 74. ADVERSE SUIT, notice of, not necessary to be given to covenantor, 231. (See Notice.) AFTER-ACQUIRED TITLE. (See Estoppel.) AGENT, covenants by, 48. when personally binding, 49. AGREEMENT, to convey by reasonable assurance, carries rights to covenants for title, 202. for sale, measure of damages in, 234, n. how covenants limited by, 520. (See Contract.) ALABAMA, covenants not implied by statute in, 489. when purchaser has right at law to detain purchase-money in, 603. ANCESTOR. (See Vendor.) APPORTIONMENT, of damages, when breach partial, 283-288. (See Damages, Measure of.) ARKANSAS, covenants not implied by statute in, 490. ARREARS OF RENT, when breach of covenant for quiet enjoyment, 130. ARTICLES, rights of purchaser while contract rests under, 23, 42, 565. ASSETS, heir not bound by ancestor's warrant, without, 375, 542. how covenants for title affected by doctrine of marshalling, 532, n. doctrine in Massachusetts depends on presence of covenant of warranty, 534, n. specific performance of covenant in administration of, 669-663. (See Marshalling Assets ; Purchaser.) ASSIGNEE, of covenantee has no right of action on broken covenants, 355. but may sue in name of his covenantor, 357. when affected by release of broken covenants, 369. INDEX. 707 ASSIGNEE, — continued. rights of, how affected by want of estate to support covenants, 361. effect of doctrine, 363. not relieved by effect of doctrine of estoppel, 366. of reversion, covenants in leasehold are binding upon, 556. could not take advantage of warranty implied from dedi, 563. aliter of covenants implied from concessi or demisi,' 563. could not take advantage of warranty unless named, 564. aliter of covenants for title, 564. (See PUKCHASEB.) ASSIGNMENT, of leasehold interest, form of covenants in, 27. no covenants implied in, 463. ASSUMPSIT, action of, cannot be brought on covenants for title, 586. ASSURANCE. (See Further Assurance.) ATTORNEY, liability of, if client enters into unusual covenants, 23, n. B. BANKRUPT, usually joins with assignee in conveyance of his estate, 45. assignees of, what covenants demandable from, 45. BANKRUPTCY, of vendor, does not affect estoppel created by covenants, 403. when a discharge of liability on covenants, 534. BENEFIT, of covenants for title. (See Covenants for Title.) BIOAMIS, statute de. (See Statutes.) BOND, when consideration can be inquired into, 523, 593, n. BREACH, assignment of, on covenant for seisin, 82-84. good right to convey, 88. against incumbrances, 114-116. for quiet enjoyment, 192-194. further assurance, 202. of warranty, 192-194. of covenants, when right of action vested in personal representatives of I ancestor, 561. when in heir, 662. of contract, damages in equity, 649. what amounts to. (See the different covenants.) BUILDING COVENANTS, damages on. (See Damages, Measure of.) BURDEN, of covenants for title. (See Covenants for Title.) 708 INDEX. BURDEN OF PROOF, upon whom it rests in action on covenant for seisin, 84. against incumbrances, 114. plaintiff must prove real value of incumbrance, 293. or only nominal damages can be recovered, 294. for quiet enjoyment, 194. is on plaintiff, 194. but may be shifted, 194. is on purchaser who surren- ders to paramount title, 150. of warranty, 194. afler notice of action of paramount claim, 219. effect of notice to covenantor of suit on adverse claim, 228. "BY, FROM OR UNDER," construction of words, 126. c. CALIFORNIA, covenants implied by statute in, 490. ATE AT EMPTOR, rule of, 565, n. applies to judicial sales, 622, n. but not to partition or exchange, 622, n. (See Leases ; Pdkchaser.) CESTUI QUE TRUST, covenants by, 45. CHAMPERTY, doctrine of, 68. how far connected with that of actual seisin, 64. how affecting covenant for right to convey, 88. CHATTELS, implied warranty in sale of, 48, 81. when warranty after sale is effectual, 465, n. when breach of warranty is defence to payment, 692. specific performance of agreements to deliver, 651, n. GROSES IN ACTION. (See Covenants fok Title, extent to which they run with land.) CIRCUITY OF ACTION, doctrine of estoppel rests on principles of preventing, 393. so of allowing purchaser to detain purchase-money, 685. (See Estoppel.) COLLATERAL WARRANTY. (See Wakeantt.) COLORADO, no covenants for title implied by statute in, 488. COMMENDATION, of estate by vendor, how far allowable, 573-575, re. INDEX. 709 COMMON RECOVERIES, origin of, 9, 10, n. inseparable incident to estates tail, 10, n. effect of, at common law, 384, 414. CONCEALMENT, when amounting to fraud, 569-681. CONDITION OF RE-ENTRY, implied from exchange, 471. partition, 473. but only in favor of coparceners, 474. CONNECTICUT, titles in Pennsylvania derived from, 70, n. no covenants implied by statute in, 488. CONSIDERATION, what is, for purchase-money, 688. ^-^"' distinction between total and partial failure of, 692. CONSIDERATION-MONEY, is evidence of value of land at time of sale, 235. but not conclusive evidence, 257, 268. when ultimate measure of damages, 235. amount of, may be explained by parol, 258, 585. but not against assignee without notice, 351. inquiry into, not precluded by covenants in deed, 587, n. (See Damages, Measure op.) right of purchaser to detain. (See Purchase-Money.) CONSTRUCTIVE EVICTION. (See Eviction.) CONTINGENT LIABILITY, executor not bound to retain assets to meet future, 556, n. CONTRACT, to give good and sufficient deed, by what complied with, 40, 41. difference between executory and executed, 42, 565. when covenant against incumbrances qualified by subject-matter of, 113. for sale, damages on breach of, 284, n. when purchaser entitled to rescind, on breach of covenant for seisin, 266. performance of, sealed, may be dispensed by parol, 350. when rescinded by fraud of vendor, 567-681. when reformed in equity, 697. (See Agkbbmbnt.) CONTRIBUTION, when enforced in equity, 666. not in favor of grantee of voluntary deed, 666. CONVEYANCE. (See Deed.) COPARCENERS, implied warranty in partition by writ between, 457, 474, 475. in deed of partition of, no warranty implied, 476. must join in actions of covenant, 560. COSTS, of defending covenantor's title, when recoverable, 305-312. counsel fees and other expenses, 309-312. when notice to covenantor necessary to recover, 809. 710 INDPX. COUNSEL, draft of further assurance submitted to, 196. fees of, when recoverable bv purchaser as damages, 305-312. COVENANT TO STAND SEISED TO USES, at law, vested estate necessary to validity of, 417, n. ■when equity enforces covenants to dispose of future estates, 417, n. COVENANTEE. (See Equity; Purchaser.) COVENANTOR, not liable for incumbrance excepted from deed, 122. acts of, to constitute breach of covenants for quiet enjoyment and of war- ranty, must be done under assumption of right, 136. subsequent deed of, no breach of covenants in prior conveyance, 137. liability of, on covenants against the acts of particularly named persons, 139. effect of notice to, of action on paramount title, 219. to prosecute title, 220. notice to, must be given in reasonable time, 224, n. must be allowed benefit of all defences covenantee could have made, 224, n. (And see Vendor.) COVENANTS FOR TITLE, introduction of, 16, 17. their number, 17. the usual, 21. in America, not applied to purposes of collateral warranty, 21. when vendor must give, 23. importance to solicitors, 23, n. in England, form of, 25, 483. concise form of, 26, n., 483, n. form in lease, 27. in America, form of, 28. in ground-rent deeds, 28, n. in New England, 29. in sale of leaseholds are qualified, 32. practice in England in vesting benefit of, in purchasers, 33. by fiduciary vendors, 43. when demandable from trustee, 52. when limited to estate conveyed, 199, 524. in action on, fraud of vendor cannot increase damages, 238. extent to which they run with land, 313-374. what covenants run with land, 313. common-law rule prohibiting assignment of choses in action, 313. statute of quia emptores, 314. distinction between benefit and burden of covenants, 315. ancient warranty ran with land, 316. descended to heir, 318. until breach all covenants run with land, 318. distinction taken in America between different covenants, 318. covenant for seisin, 319. weight of American authority does not run with land, 320. origin of doctrine, 319, n. INDEX. 711 COVENANTS FOR TITLE, — continued. cases upon which it is supposed to rest explained, 321. in England all covenants run with land, 324. English rule adopted in many States, 328-333. ■ for right to convey, does not run with land, 88. _,^^ covenant against incumbrances does not run with land in America, 89, 333. States in which different rule is held, 333. when joined with prospective covenant, 334. covenant for further assurance, runs with land until ultimate damage sustained, 361. of non-claim, same effect as covenant of warranty, 361. except in Maine, 361. covenants for quiet enjoyment and of warranty, run with land, 334. pass by voluntary or involuntary alienation, 334. benefit of, passes to purchaser at sheriff's sale, 384. practice in England of vesting in purchaser, 335. divisibility of, 336. Preston's opinion, 336. Sugden, contra, 336. who entitled to benefit of, when estate is divided, 337, 338. limitations of liability of vendor upon, 338-341. how far benefit of, passes to mortgagee, 341-347. release of covenants running with land, 348-354. broken when made, 359-361. merger of, 349. right of assignee to sue in name of covenantor, 357. how affected by statutes of limitation, 360. when want of estate affects rights of assignee of, 362. effect of doctrine, 364. not avoided by effect of doctrine of estoppel, 365. but deed of grantor in possession carries benefit of, 367. operation of, by way of estoppel or rebutter. (See Estoppel.) how limited or restrained by other covenants — 1. when preceding restrictive words, extend to all the covenants, 498-506. exceptions, 606-514. 2. when subsequent limited covenant will not restrain preceding gen- ■ eral one, 514-519. 3. when preceding general covenant will not enlarge subsequent lim- ited one, 519-520. 4. when restrictive words do not operate, the covenants being of different natures, 520. how limited by express agreement, 521. how limited by description in deed, 523. when limited by estate conveyed, 199, 524. not unless such intention appears in the deed, 528. '-"^^ when liability on, discharged by bankruptcy, 534. 712 INDEX. COVENANTS FOR TITLE,— continued. when joint and several, 536, 557. create a specialty debt, 543, 660, n. how affected by. statute of limitations, 557. when heir entitled to take advantage of, 561. personal representatives, 562. what is the consideration for, 588. when reformed in equity, 521, 696. (See Equity.) when implied. (See Implied Covenants.) purchaser's right to detain purchase-money for breach of. (See PuE- CHASB-MONBY.) jurisdiction in equity over. (See Equity ; Injunction ; Refoemation ; SpEcirio Peefokmanck.) for further assurance. (See Ftjethee Assurance.) against incumbrance. (See Incumbeanoes.) of non-claim. (See Non-claim.) for quiet enjoyment. (See Quiet Enjoyment.) right to convey. (See Right to Convey.) seisin. (See Seisin.) of warranty. (See Warranty.) (And see Pukchasee ; Vendoe.) D. DAM, when breach of covenant against incumbrances, 108. DAMAGES, when purchaser's right to, affected by bankruptcy of vendor, 534. married women, when liable for, 538. when awarded in equity, 649. DAMAGES, MEASURE OF, on ancient warranty, 15, 233, 257. on contract for sale, 234, n. in writs of dower, 246. on covenant for seisin and right to convey, 235. limited by consideration-money, 235. value of land at time of sale, 235. increased value of land not recoverable, 235. nor improvements, 236. cannot be increased in action on covenant by fraud of vendor, 238. neither vendor nor purchaser concluded by consideration clause, 238. only prima facie evidence of amount paid, 258. may be explained by parol, 258. damages may be increased or diminished by amount paid, 259. evidence of value of land where no consideration appears, 261. on technical breach of covenant for seisin, 262. rule in England, 264. recovery of nominal -damages a bar to subsequent action, 263. INDEX. 713 DAMAGES, MEASURE OF, — eoniimed. if possession has ripened into valid title, only nominal damages given, 265. where possession is undisturbed, 265. differs in this respect from covenant for quiet enjoyment, 265. when purchaser can consider contract as rescinded, 266. when after-acquired title enuring by estoppel reduces the damages, 266. when equity will compel purchaser to receive after-acquired title in reduction of damages, 266-276. option of recovering damages or accepting title should be purchaser's, not vendor's, 273. after breach of covenant, title by estoppel cannot be forced upon pur- chaser against his will, 277. when recovery of substantial damages revests the title in covenantor, 280. reconveyance by purchaser, when necessary, 281. execution, when stayed until, 281. when decreed in equity, 282. upon partial breach, purchaser recovers pro tanto, 283. evidence of relative value of part lost, admissible, 281. upon partial breach, contract not rescinded, 287. on covenant against incumbrances, in covenant of indemnity, 288- nominal damages for nominal loss, 288. measured by actual loss, 288. verdict for defendant in action before loss, no bar to recovery after loss, 290. but nominal damage bars future action, 290. reason therefor, 290. when incumbrance cannot be removed, estimated by injury sustained, 291. motive of purchaser not admissible in evidence, 291, n. when incumbrance is easement, 291. right of way, 292. term of years, 292. life-estate, 293. where incumbrance can be removed, 293. plaintiff recovers amount fairly paid, 263. subject to burden of proving real value of incumbrance, 294. of which amount paid is not evidence, 294. and if not proved, only nominal damages recoverable, 294. but in some estates the amount paid must not exceed the considera- tion-money and interest, 295. aliter in others, 297. on covenant for further assurance, redress generally sought in equity, 298. mere refusal to execute further assurance entitles plaintiif only to nomi- nal damages, 300. unless the ultimate damage be sustained, 300. 714 INDEX. DAMAGES, MEASURE OF, — continued. on covenants for quiet enjoyment and of warranty, in England, 236. in America, 239. in some States measured by value of land at time of eviction, 239. ■weight of authority is contra, 240. authorities explained, 244. motive of purchaser cannot increase damages, 251. exceptions — 1. leases, 251. English rule, 252. is value of term lost, 252. followed in America, 254. 2. ground rents, 266. interest upon consideration-money, when allowed, 300-304. limited to amount of mesne profits, 300. taxed costs of suit, when allowed, 305. costs as between party and party, 306, re. when dependent upon notice being given to covenantor, 306-308. counsel fees, when allowed, 309-312. expenses of suing trespassers not allowed, 312. nor those incurred in suing covenantor, 312. DEBT, meaning of word, in statute of fraudulent devises, 652. covenants for title create a specialty, 643, 660, n. distinction between covenants and bond, 646. DEBTS, liability of land for payment of, 547. DECEDENT, at common law, covenants did not bind devisee, 660. (See Devisee; Heir.) DECEIT, action of, when it lies, 573, n. DECLARATION, plaintiff may recover on good counts in, although others are defective, 84. in action on covenant against incumbrances, must set forth incumbrance, 114. form of, 116, n. for quiet enjoyment and of waiTanty, must aver dis- ' turbance under paramount title, 192. must state title to have existed before convey- ance, 193. but need not set it forth particularly, 193. form of, 193, n. for further assurance, 202. when paramount title need only be substantially set forth, 114. DEDI, warranty implied from, at common law, 457. created general warranty during life of feoffor, 460. how affected by statutes, 459. assignee could not take advantage of, 663. INDEX. 715 BE BONIS, effect of statute, upon warranty, 5. DEED, usual covenants in, 25. should not be punctuated, 26, n. form of covenants in, 25, 28. of leasehold interest, vendor's covenants in, 32. form of, in Massachusetts, 36. by a State, no covenants in, 52. not invalidated by adverse possession, 68. by minor, breach of covenant for right to convey, 80, n., 87. aliter of covenant for seisin, 80, n. under power, covenants in, 87. subsequent conveyance, no breach of covenants in prior, 137. when enrolment of prior conveyance, breach of covenants in subsequent, 139. consideration of, may be proved by parol, 258. but not against an assignee without notice, 351. whe'n grantee of part of estate entitled to sue on covenants in, 337. when release of covenants in, is effectual, 348, 359. where no right of action on covenants in former conveyance passes by, 355. of grantor in possession carries benefit of covenants running with land, 367. of feoffment passed subsequent title by estoppel, 384. aliier of grant or release, 385. or of conveyances under statute of Uses, 387. when transferring after-acquired title by estoppel. (See Estoppel.) no estoppel when merely interest of grantor conveyed, 393. nor of title acquired as trustee, 399. nor when imperfectly executed, 399. when by married women, 401, 402, 538, n. by a State when estoppel created, 402. no estoppel when in violation of a statute, 407. nor when fraudulent, 407. of covenant to stand seised to uses, when vested estate necessary to va- lidity of, 417, n. of bargain and sale by tenant for life no discontinuance, 417, n. of lease and release when introduced into English conveyancing, 481. does not transfer title by estoppel, 437. of partition, no implied warranty in, 476, 478. how covenants for title limited by agreement in, 520. description, 523. estate conveyed, 524-530. when covenants of married woman in, bind her, 536-541. when avoided by misrepresentations or concealment of vendor, 669-581. when failure of consideration can be shown in, 585. not precluded by covenants, 587, n. when voluntary covenants in, enforced in equity, 659-668. when reformed in equity, 697. 716 INDEX. DEED-POLL, when covenant will lie against grantee under, 462, n. DEFAULT, when breach of covenant for quiet enjoyment, 130. DEFECT, notice of, no defence to action on covenants, 116-122. (See Estoppel ; Purchasbk ; Title.) DEFINITIONS, of covenant for further assurance, 195. against incumbrances, 95. for quiet enjoyment, 125. of eviction, 144. DELAWARE, covenants implied by statute in, 491. statutory provisions as to liability of married women in, 539, n. DEMISE, covenant implied from, 151, 461. DESCENT, what covenants demandable when vendor takes by, 32. DEVISE, what covenants demandable when vendor takes by, 33. DEVISEE, liability of, at common law, 550. how aflfected by statute of fraudulent devises, 551. 1 recent legislation in England, 552. construction of statutes, 552. rights of, on covenants for title, 562. on joint and several covenants, 560, n. DISCONTINUANCE, when produced by warranty, 417, n. DISPOSSESSION, under paramount title is eviction, 146. DISSEISIN. (See Wakranty.) DISTURBANCE, must be lawful to constitute breach of covenants, 133. exceptions, 135, 140. must be under paramount title, 145. DIVISIBILITY, of covenants for title, Preston's opinion against, 336. , Sugden's, contra, 336. adopted in America, 337. DOUBTFUL TITLE, purchaser not compelled to accept, 42, n. DOWER, no breach of covenant for seisin, 80. aliter of covenant against incumbrances, 96. measure of damages on writ of, 246. in action of, purchaser not estopped to deny grantor's title, 454. INDEX. 717 E. EASEMENT, ■when breach of covenant for seisin, 78-80. covenant against incumbrances, 100. damages when incumbrance is, 291. EJECTMENT, in Pennsylvania, is brought upon equitable title, 434, n. ELECTION, doctrine of, 682. ELEGIT, only execution on lands by statute of Westminster, 542. EMANCIPATION PROCLAMATION, no breach of warranty in sale of slaves, 141. EMINENT DOMAIN, exercise of no breach of covenants for title, 140, 185. ENJOYMENT. (See Quiet Enjoyment.) ENROLMENT, of prior deed, breach of covenants for seisin in subsequent conveyance, 139, n. ENTRY, under paramount title, is eviction, 146. EQUITABLE ESTATE, when owner of, covenants for the title, 45. EQUITIES, assignee not affected by unknown, 350. EQUITY, suit in, when breach of covenant for quiet enjoyment, 143. when rules in regard to eviction relaxed in, 175. when purchaser compelled to accept title by estoppel in mitigation of his damages, 267-276, 424. will not deprive purchaser of his right to damages, 273, 424, 661. when reconveyance after recovery of damages decreed in, 282. when mortgagor entitled to benefit of covenants in, 346. enfoices covenants to dispose of future acquisitions, 417, n. when conveyance of after-acquired title decreed in, 421—443. bill in, is proper remedy on implied warranty in partition, 479. doctrine of election in, 632. when married women liable on covenants in, 640. when contract rescinded by fraud of vendor, 569-581. remedies on breach of contract in, 648. when damages awarded in, 648. Lord Cairns' Act, 648. Sir John Rolfs Act, 649. specific performance, origin of doctrine, 650. of chattels, 661, n. of doubtful title, 42, n. of covenant to build, 652. when enforced on principles of quia timet, 652. 718 INDEX. EQUITY, — continued. specific performance, of covenants of indemnity, 652. relief not granted on mere apprehension of damage, 664. of covenant for further assurance, 652, 656. not enforced -when effect is to defeat intention expressed in deed, 658. in administering or marshalling assets, 659. will enforce covenants whether voluntary or not, 659. grantee is entitled to prove as specialty creditor, 543, 660, n. of voluntary covenants, refused, 663. nor will contribution or exoneration be decreed, 665. injunction, at suit of covenantor, 669-674. of covenantee, unless purchaser has present right to damages, collection of purchase- money will not be enjoined, 674. nor will contract be rescinded, 681. local practice in Virginia, 682. knowledge of incumbrance bars relief, 683. but where purchaser is entitled to damages, equity interferes, 684. statutory provisions in Missouri, 688. when insolvency or non-residence of vendor sufficient to grant relief, 688-693. when all parties are before the court, 693. reformation, by reason of fraud or mistake, 521, 696. difficulty is in sufficiency of proof, 697. distinction between doctrines enforced at law and in equity, 702. decision under statutes abolishing such distinction, 704. EQUITY OF REDEMPTION, in England and Kentucky benefit of covenants does not pass with, 341. contra in United States generally, 342-348. relief granted to mortgagor in equity, 346. ESTATE, covenants qualified by nature of, 113, 199, 524-530. when divided, in England each owner may sue on covenants, 337. rule in Pennsylvania, 338. doctrine that want of, defeats assignee's right to benefit of covenants, 362. effect of doctrine, 364. no longer law, 369. passed by estoppel at common law, by feoffment, fine, common recovery or lease, 384. contra by grant or release, 385. nor by conveyance under statute of Uses, 386. (And see Estoppel.) could not be enlarged by warranty, 415. nor by covenants for title, 443, 658. when purchaser entitled to conveyance of after-acquired title, 421-443. when subsequent title is forced on purchaser nolens volens, 424. INDEX. 719 ESTATE, — continued. purchaser not estopped by acceptance of, 458. unless he was possessed of valid title, 453. when married woman liable on covenants in conveyance of her separate, 540. ESTATE FOR LIFE, when breach of covenant for seisin, 78. measure of damages on, 283, 293. life tables admissible to show value of, 293. ESTATE FOR YEARS. (See Lease.) ESTATE TAIL, origin of, 6. effect of warranty of tenant in tail, 6. collateral warranty introduced to defeat, 7, 8. common recovery inseparable incident to, 10, n. when breach of covenant for seisin, 78. no discontinuance by alienation by tenant in tail with covenant of war- ranty, 211, n. will not be enlarged into fee by doctrine of estoppel, 443, 658. ESTOPPEL, by judgment, 265, n. when title enuring by, reduces purchaser's right to damages, 266-277. doctrine of, does not enlarge right of assignee when no estate passed, 365. at common law, by what caused, 383. extraordinary effect of, 384. grant or release did not pass estate by, 385. nor conveyances under the statute of Uses, 886. by recitals, 388. operation of covenants by way of, difference between ordinary and extraordinary effect of, 389. after-acquired title does not pass unless deed contains covenants, 390. statutory provisions in different States, 391, n. when deed contains certain covenants the after-acquired estate passes as if transferred by deed, 392. based on the ground of preventing circuity of action, 393. not created in Maine or New York by covenant of non-claim, 217, 393, 409. but this construction not generally adopted, 217, 410. nor when conveyance is only of interest of grantor, 393. nor by covenant of seisin when satisfied by tortious seisin, 395. nor where covenants are extinguished, 895. nor where after-acquired estate is mot within the terms of the cove- nants, 396. nor when subsequent title is acquired by disseisin of grantee, followed by adverse possession, 898. nor when after-acquired estate is held in different right from that con- veyed, 399. exceptions to rule that doctrine is based on ground of preventing cir- cuity of action — 1. where question arises between assignees of different title, 401. 720 INDEX. ESTOPPEL, — continued. 2. ooTenanfs of married women, 401. 8. grants by States, 402. contrary doctrine ia North Carolina, 403. 4. where covenantor is bankrupt, 403. in Massachusetts covenants barred by statute of limitations operate by estoppel, 403. when covenant of warranty transfers after-acquired title, 404. not when implied from partition, 406, 479. nor where estoppels are mutual, 407. ' nor in conveyance prohibited by statute, 40/. nor in fraudulent deed, 407. when covenant for further assurance operates by estoppel,407, 408. seisin, 408. right to convey, 408. quiet enjoyment, 408. implied from " grant, bargain and sell," 410. doctrine applied to other covenants than those for title, 411. origin of doctrine, 412. passages from Littleton and Coke on which it is supposed to be founded, 412. passages explained, 413-417. grounds upon which cases can be rested, 418. 1. that covenants operate merely as personal rebutter, 418. 2. that their effect is as if particular recital had been introduced, 418. difference between effect of covenants operating as rebutter and trans- ferring estate, 419. 1. between purchaser and vendor, 419. subsequent title would relate back to original conveyance, 420. in action on covenant of warranty verdict would be for defend- ant, 421. on covenant for seisin only nominal damages, 421. when subsequent title forced on purchaser nolens volens, 265- 277, 424. 2. between purchasers from same grantor, 427. doctrine violates registry laws, 428. when estate is transferred against subsequent purchaser without notice, 429. doctrine in Pennsylvania, 430-435. England, 436-443. estate will not be enlarged beyond that intended to be conveyed, 443. result of cases, 445. purchaser not estopped by covenants in purchase-money mortgage, 449. nor by acceptance of estate conveyed, 453. unless possessed of the valid title at time of conveyance, 455. not estopped from denying accuracy of recitals of title, 456. EVICTION, unnecessary to aver, in action on covenant of seisin, 83. must be lawful to constitute breach of covenants, 136. INDEX. 721 EVICTION, —continued. exceptions, 135-140. necessary to constitute breach of covenants for quiet enjoyment and of warranty, 144. definition of, 144. actual, need not be by legal process, 144. must be by paramount title, 145. when by actual entry and dispossession, 146. by ouster in pais, 146-151. doctrine in Mississippi, 148, n. constructive, by inability to obtain possession, 151-158. rule applied to uncultivated lands, 154. by compulsory purchase or lease of paramount title after its establishment by judgment, 158. analogy to rule prohibiting tenant from denying landlord's title, 159. analogy fails between vendor and vendee, 160. no distinction between lease and purchase of paramount title, 166. by compulsory lease or purchase of paramount title before its establish- ment by judgment, 168. doctrine in Kentucky, 172. when all parties are before a court of equity rules in regard to, are re- laxed, 175. distinction between the different covenants regarding, 176. paramount title must be adversarily asserted, 176. where loss is of something which represents the land, 181-190. by diversion of stream of water, 181. review of cases upon subject of, 191. not necessary in warranty, 213. when record of adverse suit is evidence of, 229. measure of damages for, 239-244. authorities explained, 244. of purchaser, entitles him to detain unpaid purchase-money at law, 691- 611. and in equity, 675-684. EVIDENCE, that incumbrance was to be excepted from covenants, not admissible, 119, 260, n. when admitted to prove that purchaser agreed to discharge incum- brances, 451. vC that adverse title was not derived from covenantor, 227. when eviction is proved by record of adverse suit, 229. paramount title proved by such record, 230. of value of land, when consideration is, 235. but this not conclusive, 257. to contradict consideration clause when admissible, 258, 351. as to value of land when no consideration appears, 261. of relative value of land lost, 284. life tables admissible in, 284, «., 293. motive of purchaser not admissible, 291, n. 46 722 INDEX. EVIDENCE, — continued. when plaintiff must prove real value of incumbrance, 293. amount paid no proof, 294. of set-oflf, when allowed, 583. when partial or total failure of consi "'eration can be shown, 598, n. when sufficient to reform contracts in equity, 697. when contract reformed by parol, 697. (See the several covenants.) EXCAMSIUM, when warranty implied from use of, 471. EXCEPTED INCUMBRANCES. (See Incumbrances.) EXCHANGE, warranty implied from, 471. abolished in England, 473, n. EXECUTED AND EXECUTORY CONTRACTS, different doctrines that govern, 42, 666. EXECUTION, after recovery of damages, when stayed until reconveyance, 281. EXECUTOR, what covenant demandable from, 43. rights of, never succeeded to warranty, 318. contra of covenants for title, 318. entitled to benefit of covenants broken in lifetime of decedent, 663. liability of, at common law, covenantee might sue heir or, 643. how altered in United States, 546-648. real estate, when assets in hands of, 546. bound by covenants of decedent, 564. no distinction whether covenants broken before or after testator's death, 564. not bound to retain assets to meet future contingent breaches, 666, n. (See Covenants for Titlb, extent to which they run with land.) EXECUTORY CONTRACT. (See Contract.) EXONERATION, when allowed n equity, 665. not in favor of voluntary grantee, 666. EXPENDITURE. (See Costs; Improvements.) EXPENSES, personal, &c., when recoverable as damages, 306-312. EXPRESS COVENANTS. (See Implied Covenants.) EXTINGUISHMENT, of covenants, by grantor becoming invested with estate conveyed,-349, 353. when covenants are satisfied no estoppel created, 395. F. FAILURE OF TITLE, right to recover or detain purchase-money by reason of. (See Puechase- Monby.) INDEX. 723 FEES, of counsel, when recoverable as damages, 305-312. FEMES COVERT. (See Married Wombn.) FENCES, when breach of covenant for seisin, 79. against incumbrances, 98. FEOFFMENT, eifiL'acy of, at common law, 384. created an estate rightfully or wrongfully, 413. FIDUCIARY VENDORS, usual covenants of, 43. do not covenant for further assurance, 44. can limit their liability on covenants, 51. FINE, when covenant for further assurance extends to buying, 198. at common law passed estate by estoppel, 384. created an estate, 414. married women's liability on covenants in, 637. specific performance of contract to buy, 652. FLORIDA, no covenants for title implied by statute in, 488. FORMER RECOVERY, when bar to subsequent action, 290. FORMS, of covenants for title, in England, 25, 483. in America generally, 28. in Massachusetts, 36. by trustee, 44. of declaration in action on covenant against incumbrances, 115, n. for quiet enjoyment, 193, n. FRAUD, in absence of, when covenantee not allowed to prove that recovery was had under paramount title, 219. 'cannot increase the damages in action of covenant, 238. remedy of purchaser, 245. deed made in, creates no estoppel, 407. when concealment or misrepresentation by vendor amounts to, 569-681. distinction between allegatio falsi and suppressio veri, 576, n. when covenants reformed in equity for, 696. FRAUDULENT DEVISES, statute of, 544, 661. FREEHOLD, could not pass without livery of seisin, 63. except in case of fines, 63, ra. FULL. COVEN ANTS, what are, 27. FURTHER ASSURANCE, covenant for, form of, 26, 28. 724 INDEX. FURTHER ASSURANCE, — continued. covenant for, usual covenant in England, 25. what held to be, 28. cannot be exacted from fiduciary vendors, 44. importance of, 195. little used in United States, 195. definition of, 195. mode in England of requiring performance, 195. what acts demandable under, 196. must be necessary, 196. and practicable, 197. request must be made in reasonable time, 197. removal of incumbrance may be required, 198. bu this depends — 1. upon the scope of the other covenants, if general purchaser may invoke aid equity to remove incumbrance, 198. aliter if limited, 198. 2. upon nature of estate conveyed, 198. covenants are restricted to the interest conveyed, 199. covenants not demandable in deed of further assurance itself, 202. aliter in agreements to convey by reasonable assuran ce, 202. pleadings, 202. breach is generally assigned in words of covenant, 20^. particularity required in declaration, 203. release of, 348-354. (See Release.) when after-acquired title enures by estoppel under, 457. will not enlarge estate beyond that intended to be granted, 443. when satisfied by statute of limitations, 557. heir may sue on, though not named, 561. unless breach of, occurs in lifetime of ancestor, 562. when specific performance of, enforced, 652, 656. measure of damages on. (See Damages, Measure of.) capacity for running with land. (See Covenants for Title.) operation by way of estoppel or rebutter. [See Estoppel.) FUTURE ESTATES. (See Estoppel.) G. GATE, erection of, when breach of covenant for quiet enjoyment, 144, n. GAVELKIND, warranty by ancestor did not descend upon heir by custom of, 379. except by way of rebutter, 379. GENERAL ISSUE, only total failure of consideration admissible under, without notice; 598, n. GENERAL WORDS, ' how limited. (See Covenants for Title.) GEORGIA, covenants implied by statute in, 495. INDEX. 725 GIVE, warranty implied from word, 457. GOOD AND SUFFICIENT DEED, meaning of, in contract, 40, 41. GOOD RIGHT TO CONVEY. (See Right to Convey.) GRANT, operation of, at common law, 385. did not pass estate by estoppel, 410. by State, when operative as an estoppel, 402. " GRANT, BARGAIN AND SELL," origin of statutory effect given to, 3. whether covenants implied from, create estoppel, 410. does not imply warranty, 458, n. covenants implied from, by statute in England, 481. inthe different States, 484-497. GROUND RENT, form of covenant for quiet enjoyment in, 28. usual covenants in, 123. measure of damages on eviction, 256. when purchaser entitled to detain unpaid, 644. GUARDIAN. (See Fiduciary Vendor.) H. HEIR, when value of improvements recoverable from, in writ of dower, 246. alone received the benefit and burden of warranty, 318, 475. by custom of gavelkind and borough English, not bound by warranty, 379, n. except by way of rebutter, 379, n. difference between liability for damages and estoppel of, 382. liability of, at common law, must be named, 541. must have sufficient assets by descent, 542. covenantee might sue executor or, 543. when land aliened by, before suit brought, 544. how affected by statute of fraudulent devises, 544. in United States, lands are liable for debts of decedent, 546. debts are lien on real estate, 546. except when modified by statute, 547. difference between English and American law in this respect, 546. right of, ' must be named, to take advantage of warranty, 661. contra, on covenants for title, 561. when entitled to sue on covenants, 561. HIGHWAY, no breach of covenant for seisin, 80. when breach of covenant against incumbrances, 101. 726 INDEZ. HOMAGE, warranty implied from, 2, 457. how affected by statute ot quia emptores, 3, 469. HOUSE, right of occupancy of, when breach of covenant against incumbrances, 98. building, removing or destroying, when breach of covenants, 144, n., 182, n. HUSBAND AND WIFE, form of covenant in sale of estate of wife, 31, n. I. n^LINOIS, usual covenants in, 38. peculiar construction given to covenant for seisin, 58. covenants implied by statute, 491. statutory provisions as to liability of married women upon their covenants, 539, n. IMPLIED COVENANTS, not implied at present day in transfei* of freehold, 461. in leases, implied from words of leasing, 457, 461. yielding and paying, 461, n. relation of landlord and tenant, 462, 464^467. rule in New York, 463, n. not implied in assignment of leasehold, 463. when implied, are 1. power to demise, 464. 2. quiet enjoyment, 464. in parol leases, 464-467. are restrained by express covenants, 468. ceases when estate determines, 469. distinction between express and implied covenants, 470, n. not implied from recitals, 479. implied from "grant, bargain and sell" in England, 481. when estoppel created by, 410. statutory provisions in the different States, 484-497. (See the diiferent States.) when implied by statute, are limited, 486. IMPLIED WAKRANTr, from word decli, 457, 460. not implied from " grant, bargain and sell," 458, n. effect of statutes de higaniis and quia emptores, 459. not restrained by express covenants, 460. alitei- in leases, 460, n., 468. did not run with land, 461. implied from exchange, 471. partition by writ, 457, 473. originally only in favor of coparceners, 474. extended by statute to joint tenants and tenants in common, 476. American cases criticised, 477. but not in partition by deed, 476, 478. INDEX. 727 IMPLIED WA-RRA-NTY,^ continued. eflfeet of implied warranty in partition, 478. bill in equity proper remedy on, 478. no estoppel by, 479. in sales of chattels, 81. IMPROVEMENTS, not recoverable as damages in action on covenant for seisin, 236. in some States recoverable on covenants for quiet enjoyment and of warranty, 239. weight of authority contra, 240. authorities explained, 244. when recoverable in writ of dower, 246. in cases of sales with building covenants, 266. when recoverable in case of fraud, 245. (See Damages, Mbasuke op.) INCREASE IN VALUE. (See Damages, Measure of.) INCORPOREAL HEREDITAMENTS, ' were subject of warranty, 185. and of covenants for title, 186. INCUMBER, fiduciary vendors only covenant that they have done no act to, 44. INCUMBRANCES, when breach of covenant for seisin, 78, 80. removed in equity under covenant for further assurance, 198, 659. cannot be proved by parol to be excepted from covenants, 119, 260, ii.. effect of declarations that estate is free from, 533, n., 665. what in Pennsj-lvania will entitle purchaser to detain unpaid purchase- money, 628-647. distinction in Pennsylvania between defect of title and, "635. when notice of, bars purchaser's relief in equity, 663. covenant against, 89-124. ^, usual in conveyances, 25. form of, 25, 28. by trustee, 44. in England, supplement to covenant for quiet enjoyment, 89. distinction between covenant that estate is free from, and that pur- chaser shall enjoy free from, 89, 91, 7i., 97, n. does not run with land, 89, 334. States in which contrary doctrine is held, 333. construction of, when joined to covenant for quiet enjoyment, 90. distinction between, and covenants of indemnity against, 91, n., 92-94. definition of, 94. is limited and qualified by nature of estate conveyed, 112. breach of, 94-114. broken by mere existence of incumbrance, 89. rules by which to determine what is or is not an incumbrance, 95. \ by mortgage, 96. judgment, 96. dower, 96. taxes, 97, 98. 728 INDEX. INCUMBRANCES, — continued. breach of covenant against, erection of fences, 98. lease, 98-100. easements, 100. party-wall, 101. highways and public roads, 101-106. railroad, 106. rights of water, 107-111. mill-dams, 108. right of light, 111. covenant is limited by nature of estate conveyed, 113. what constitutes incumbrance should be determined by subject-matter of contract, 113. pleadings, 114. plaintiff must prove incumbrance, 114. incumbrance need only be substantially set forth, 114. form of declaration, 116, ri,. mere existence of incumbrance entitles plaintiff to nominal damages, 116. known incumbrances should be excepted from covenant, 116-123. notice of incumbrance no bar to recovery upon covenant, 117. parol evidence not allowed at law to vary covenant, 119. when excepted, covenantor not liable, 122. in what respects different from other covenants, 176, 178, n. no right of action on, passes to assignee of covenantee, 355. right of assignee to sue in name of covenantor, 359. effect of release of, 859. when liability on, is discharged by bankruptcy, 536. when satisfied by statute of limitations, 557. measure of damages' on. (See Damages, Measure of.) capacity for running with land. (See Covenants fok Title, extent to which they run with land.) operation by way of estoppel or rebutter. (See Estoppel.) INDEFEASIBLE SEISIN, doctrine of, 56, 60. INDEMNITY, covenant of, construction of, 92-94. when specifically performed, 652. relief not granted on mere apprehension of damage, 653. INDIANA, usual covenants in, 38. all covenants for title run with land in, 331. covenants implied by statute in, 495. statutory provisions as to liability of married women upon their cove- nants, 539, n. INFANT, conveyance .by, no breach of covenant for seisin, 80, 87, n. contra, of covenant for right to convey, 80, n., 87, n. INDEX. 729 INJUNCTION, at suit of covenantor, on principle of quia timet, 669-674. covenantee will not be deprived of his right to damages, 267-277, 674. after damages recovered grantee will be restrained from asserting his title, 282, 674. at suit of covenantee, to restrain collection of unpaid purchase-money, 675-696. denied unless purchaser has present right to damages, 675-681. practice in Virginia, 682. notice of incumbrance bars relief, 683. allowed where purchaser is entitled to damages, 684. statutory provisions in Missouri, 688. when vendor is insolvent or non-resident, 688-693. when all parties are before the court, 693-696. INSOLVENCY, of vendor, where purchaser entitled to detain purchase-money on account of, 688-693. INSURANCE TABLES, admissible in evidence, 293. INTENTION, of purchaser, not admissible as evidence, 291, n. INTEREST, upon consideration-money, when allowed as damages, 300. (See Estate; Estoppel.) INTERRUPTION. (See Eviction.) INVOLUNTARY ALIENATION, covenants for title pass by, 334, n. no estoppel created by, 391, n. IOWA, all covenants for title run with land in, 333. covenants implied by statute in, 496. statutory provisions as to liability of married women upon their covenants, 640. written covenants control printed ones in, 527, n. J. JOINT COVENANTS, what are, 536. who may sue on, 557. JOINT TENANTS, covenant separately, 31. when warranty implied in partition between, 474-478. (See Tenants in Common.) JUDGMENT, in writ of warraniia chartcB, 13. binds all lands of warrantor, 13, n. no breach of covenant for seisin, 80. 730 INDEX. JUDGMENT, — continued. aliter of covenant against incumbrances, 96. on covenants for title, may be impeached for fraud, 168, n. when covenantor has notice, is conclusive evidence of paramount title, 168, n., 219. when to be satisfied under covenant for further assurance, 198. purchaser may recover against all previous covenantors, 335. but can have but one satisfaction, 335. JUDICIAL SALES, when rule of caveat emptor applies to, 622, n. JURY, determine to some extent subject-matter of contract, 114. question of notice, 223. K. KENTUCKY, usual covenants in, 37. when eviction by purchase of paramount title before judgment caused in, 172. benefit of covenants does not pass with equity of redemption, 342. law of warranty in, 877, n. covenants implied by statute in, 495. KNOWN INCUMBRANCES, should be excepted from covenants, 116-122. L. LAND, value at time of sale is measure of damages on covenant for seisin, 235. on covenants for quiet enjoyment and of warranty, 237, 240. increased value not recoverable, 236. improvements not recoverable, 236. exceptions, 248-256. evidence of value where no consideration appears, 261. warranty implied from exchange of, 471. when liable to payment of debts of decedent, 646. covenants running with. (See Covenants for title.) LANDLORD AND TENANT, covenants implied from relation of, 462, 464. statutory provisions, 463, n. (See Leases.) LATENT DEFECTS, when vendor must disclose, 676, n. LEASE, lessee does not usually examine title, 22, n. usual covenants in, 26, 125. in England, form of covenants in, 27. usual covenants in. is question for jury, 39. when breach of covenant for seisin, 78. against incumbrances, 99. INDEX. 731 LEASE, — continued. taken compulsorily under paramount title is eviction, 158. of paramount title before judgment, when constructive eviction, 168. damages for breach of covenants in, 251. is value of term lost, 251. rule in England, 252. in America, 254. in action on covenant against incumbrances, when estate subject to, 292. estoppel caused by, 381, 418. implied covenants from words of leasing, 151, 457, 461. yielding and paying, 461. relation of landlord and tenant, 462, 464. statutory provisions, 463. no covenants implied in assignment of, 463. when implied in parol lease, 464-467. implied covenants are limited by express ones, 460, n., 468. cease when estate determines, 469. how different from express covenants, 470, n. covenants in, binding upon assignee of reversion, 556. assignee entitled to benefit of covenants in, 563. LEASE AND RELEASE, when introduced into English conveyancing, 481. does not transfer by estoppel subsequently acquired title, 437. LEASEHOLD INTEREST, vendor's covenants are qualified, 32, n. LEGAL PROCESS, not necessary to constitute eviction, 144. "LET," covenants implied from word, 461. LEX LOGI BEI SITM, how far covenants for title governed by, 72, n. LIABILITY, of assignep. (See Assignee.) of covenantor. (See Vendor.) of devisee. (See Devisee.) of executor. (See Executor.) of heir. (See Heir.) of married women. (See Married Women.) (And see Covenants for Title ; Purchaser.) LIEN, how far debts are, on real estate of decedent, 546. LIFE ESTATE, when breach of covenant for seisin, 78. measure of damages, 292. life insurance tables admissible to prove value of, 284, 293. LIFE INSURANCE, tables of, admissible in evidence, 284, 293. LIGHT, when right of breach of covenant against incumbrances, 111. 732 INDEX. LIMITATION, of rights of purchaser against prior vendors, 338-341. statute of, when bar to action on covenants for title, 360, 559. in Massachusetts, covenants barred by, operate by estoppel, 403. LIMITED COVENANTS. (See Covenants foe Title.) LIVERY OF SEISIN, doctrine of, 67, 414. LORD CAIRNS' ACT, 238, n., 648. LOUISIANA, no covenants for title implied by statute in, 488. M. MAINE, peculiar construction given to covenant for seisin, 57. covenants for title run with land in, 328. effect of covenant of non-claim in, 217, 361, 409. no covenants implied by statute, 488. MAINTENANCE, doctrine of, 67. MARRIAGE SETTLEMENT, when estoppel caused by covenant in, void, 399, n. MARRIED WOMEN, form of covenants by, under power, 31. when estopped by their covenants, 401, 538, n. liability of, statutory provisions, 538, n. when power to contract is given by statute, 540. in conveyance of her separate estate, 540. liable on covenants in a fine, 537. but not on covenants for title, 538. MARSHALLING ASSETS, when specific performance of covenants enforced in, 659-663. (See Assets ; Equity.) MARYLAND, no covenants implied by statute in, 495. MASSACHUSETTS, form of deeds in, 36. construction given to covenant for seisin, 66. covenants barred by statute of limitations operate by estoppel in, 403. no covenants implied by statute in, 488. doctrine of marshalling assets in, depends on presence of covenant of warranty, 534, n. statutory provisions as to liability of married women upon their covenants, 539, n. "MEANS," construction of word, 132. MERGER, of covenants by grantor becoming invested with estate conveyed, 349, 853. INDEX. 733 MESNE PROFITS, interest upon consideration-money limited to amount of, 300. METES AND BOUNDS, * when covenants extend to, 623. MICHIGAN, no covenants for title implied by statute in, 488. statutory provisions as to liability of married women upon their covenants, 539, n. MILL DAM, when breach of covenants against incumbrances, 108. MINISTERIAL VENDORS, no covenants can be demanded from, 51. MINNESOTA, usual covenants in, 38. no covenants implied by statute in, 488. when purchaser allowed to detain purchase-money, 606. MINOR, conveyance by, no breach of covenant for seisin, 80, 87, n. aliter of right to convey, 80, n., 87, 7i. MISREPRESENTATION, of vendor, when amounting to fraud, 669-581. MISSISSIPPI, doctrine of eviction in, 148. covenants not implied by statute in, 492. MISSOURI, all covenants for title run with land in, 330. covenants implied by statute, 492. statutory provisions as to liability of married women upon their covenants, 539, n. ^ as to purchaser's right to detain purchase-money, 688. MISTAKE, reformation of covenants on ground of, 696. MORTGAGE, usual covenants in, 26, 32. are unlimited, 26, 32. no breach of covenant for seisin, 80. contra of covenant against incumbrances, 96. when benefit of covenants pass with, 341-348. when mortgagee entitled to conveyance of after-acquired title, 442. mortgagor not estopped by his covenants, 449. MOTIVE, of purchaser not admissible as evidence, 291, n. N. NEVADA, covenants implied by statute in, 494. NEW ENGLAND, doctrine of indefeasible seisin in, 64. highway is breach of covenant against incumbrances in, 104. no covenants implied by statute in, 488. 734 INDEX. NEW HAMPSHIRE, no covenants implied by statute in, 488. NEW JERSEY, ' no covenants implied by statute in, 488. purchaser's right to detain purchase-money in, 677, n., 686, n. NEW YORK, all covenants for title run with land, 829. construction of covenant of non-claim in, 409. no covenants implied by statute in, 488. statutory provisions as to liability of married women upon theircovenants, 540. purchaser's right to detain purchase-money in, 696. NOMINAL DAMAGES. (See Damages, Mbasuke of.) NON-CLAIM, covenant of, form of, 29. its resemblance to the covenant of warranty, 26, 28,. n. estoppel by, 217, 410. runs with land, 361. construction of, in Maine and New York, 217, 361, 409. NON-RESIDENCE, of vendor, when purchaser allowed to detain purchase-money by reason of, 688-693. NORTH CAROLINA, doctrine as to effect of notice to covenantor of action on paramount title, 219, n. no covenants for title implied by statute in, 489. NOTICE, of incumbrances, no bar to recovery at law upon covenants, 117. - — when a bar in equity, 117, 683. to covenantor, of action on paramount title, 219-232. effect of, 219. to vendor to prosecute his title, 220. what constitutes proper notice, 221. whether parol is sufficient, 221. question of, is to some extent matter for jury, 223. must be given in reasonable time, 224, re. covenantor must be allowed benefit of all defences covenantee could have made, 224, n. local rules in South Carolina, 224, n. evidence allowed that title was not derived from covenantee, 227. when plaintiff must prove title was paramount, 228. what record of adverse suit is notice of, 229. not necessary to entitle plaintiff to recover, 231. but should be given, 232. review of authorities upon subject of, 232. when necessary to give, in order to recover costs and personal expenses as damages, 305-312. assignees not affected by unknown equities, 350. INDEX. 735 NOTICE, — continued. unrecorded release inoperative against purchaser without, 354. when estate is transferred by estoppel against purchaser without, 429. in Pennsylvania, to deprive purchaser of right of detaining purchase- money must be actual, 627, 638. of incumbrance not conclusive upon purchaser, 631. o. OBJECT, covenants having same, how limited by other covenants, 498-520. OHIO, usual covenants in, 38. construction given to covenant for seisin in, 57. all covenants for title run with land in, 329. no covenants for title implied by statute in, 489. OPTION, of recovering damages or accepting title by estoppel, should rest with purchaser, 273, 425, 654. OREGON, covenants implied by statute in, 496. ORPHAN'S COURT, rule of caveat emptor applies to sales by, 622, n. OUSTER IN PAIS, what constitutes, 146-151. (See Eviction.) P. PARAMOUNT TITLE, when it need only be substantially set forth, 83, 114, 193. assertion of, necessary to constitute breach of covenants for quiet enjoy- ment and of warranty, 145. must be hostilely asserted, 148, 176. rules necessary to constitute eviction by, when relaxed in equity, 175. when it must be averred to have existed before conveyance, 193. when record of adverse suit is evidence of, 230. PAROL, when notice of adverse suit can be given by, 221. when performance of sealed contract dispensed by, 350. what covenants implied in lease by, 464r-467. evidence. (See Evidence.) PARTIES TO COVENANTS. (See AssiGnise ; Devisee; Exbcutok; Heik; Makeied Women ; Pukchasbr ; Vendor.) PARTITION, warranty implied from writ of, 457, 473-478. but not by deed, 476, 478. no estoppel caused by implied warranty in, 406, 479. remedy on implied warranty in, 479. PARTr OR PRIVY, effect of these words in covenants, 45, n. 73 S INDEX. PARTY- WALL,. when breach of covenant against incumbrances, 101. PATENT-EIGHT, covenants in assignment of, construed strictly, 615, n. PEDIGREE, evidenced in England by affidavits, 22, n. contra in America, 22, n. PENNSYLVANIA, usual covenants in, 34. in ground-rent deeds, 125. highway, no breach of covenant against incumbrances, 102. rule in, as to liability of covenantor when estate is divided, 338. law of warranty in, 878, «. doctrine of transferring estates by estoppel in, 480-435. covenants implied by statute in, 484. when jDurchaser allowed to detain purchase-money in, 618-647. (See POECHASE-MONEY.) PERFORMANCE, ,of sealed contract may be dispensed by parol, 350. PERSONAL COVENANT. (See Covenants for Title.) PERSONAL EXPENSES, of purchaser, in defending title, when recoverable, 305-812. PERSONAL PROPERTY, warranty of title implied in sale of, 81. when purchaser must resort to, for damages, 547. PERSONAL REPRESENTATIVES, when entitled to sue on covenants for title, 561-563. PEWS, liability of, for assessments, when brsach of covenant against incum- brances, 98, n. PLAINTIFF, in action on covenant for seisin, if no evidence offered, is entitled to judg- ment, 84. against incumbrances, must prove incumbrances, 114. (See Burden of Proof.) PLEADINGS. (See the different covenants.) POSSESSION, when inability to obtain, is eviction, 151. deed of grantor in, passes benefit of covenants, 367. damages when purchaser not disturbed in, 265. when ripened into valid title, 265. (See Seisin, Covenant of.) POWER, • of attorney to sell, includes power to covenant, 48. usual covenants in conveyance under, 87. to demise, when implied from words of lease, 464. relation of landlord and tenant, 464-467. PRESUMPTION, of satisfaction of covenants from lapse of time, 360, 559. INDEX. 737 PRETENDED TITLE ACT, 66. PRICE. (See Damages, Measure oe.) PRINCIPAL, ■when bound by covenants of agent, 49. PRIVITY, construction of word in limited covenants, 132. of estate when necessary to enable covenants to run with land, 314. " PRIVY OR PARTY," construction of words, 45, n. " PROCUREMENT," construction of word, 131. PRODUCTION, of title-deeds, when demandable under covenant for further assurance, 201. PUBLIC ROADS, when breach of covenant against incumbrances, 101-106. PURCHASE, compulsorily made of paramount title, is eviction, 158. of paramount title before judgment when eviction, 168. PURCHASE-MONEY, what constitutes consideration for, 588. purchaser's right at law to detain, 567. depends upon covenants in deed, 666, 581. if no covenants, no relief granted, 567. except in cases of fraud, 568. by reason of misrepresentation or concealment by vendor, 669-581. denied where no eviction, actual or constructive, has occurred, 591-606. except when modified by codes, as in Wisconsin and Minnesota, 606. but allowed after eviction, 606-611. where purchaser has been compelled to purchase outstanding title, 609. purchaser's right in equity to detain, denied, unless purchaser has present right to damages, 675-681. practice in Virginia, 682. notice of incumbrance bars right, 683. allowed when purchaser is entitled to damages, 684. statutory provisions in Missouri, 688. how affected by insolvency or non-residence of vendor, 688-693. when all parties are before the court, 693-696. doctrine in South Carolina, 611. result of cases in, 612. Texas, 613-617. result of cases in, 617. Pennsylvania, 618-647. not wholly dependent upon presence of covenants, 619. result of doctrine, 620. purchaser may defend by reason of defect of title, unless he was to run the risk, 622. application of rule — 1. where defect or incumbrance is unknown, 623. what must be its character, 624. 47 738 INDEX. PURCHASE-MONEY, — coniinued. what will be deemed notice to purchaser, 627. constructive notice not sufficient, 628. 2. where there is known defect or incumbrance, and no covenant, 628. in case of defect of title, absence of covenant raises presumption that purchaser assumed risk of title, 629. although such presumption not conclusive, 631. but in case of pecuniary incumbrance no such presumption, 632. when security is given after notice is acquired, 636. 3. where there is covenant against known defect or incumbrance, 637. purchaser cannot detain purchase-money unless covenant is broken, 638. bound to perform his engagements when his knowledge and state of facts continue the same as at time of conveyance, 638. result of doctrine, 642. rights of purchaser upon a sale on ground-rent, 644. is entitled to defend from payment so long as incumbrance exists, 645. in case of eviction, rent apportioned pro ianto", 645. PURCHASER, when entitled to covenants for title, 23. rights of, under contract to give good and sufficient deed, 40, 41. different right under executed and executory contracts, 42, 565, 620. may surrender possession to owner of paramount title, 146. but if so, assumes burden of proof, 150. and surrenders at his own risk, 168, n. inability of, to obtain possession is constructive eviction, 151. under covenant for further assurance, may require fine to be levied, 197. or judgment or incumbrance to be removed, 198. but this depends upon scope of other covenants, 198. and upon nature of estate conveyed, 199. should give notice of action on paramount claim, 219. after notice, when required to prove that title was paramount, 228. cannot recover value of improvements as damages, 236, 244. reasons, 249. when entitled to recover costs, personal expenses, &c., 305-312. motive of, cannot increase damages, 251, 291, n. exceptions, 251. remedy for fraud of vendor, 245. damages on writ of dower, 246. not concluded by consideration clause, 267. but may prove real consideration by parol, 259. when recovery of nominal damages bars subsequent action, 263. when possession ripened into valid title, only nominal damages, 265. damages when possession is undisturbed, 265. when entitled to rescind contract, 266. when title enuring by estoppel reduces damages, 266-275, 423-426, 674. in equity, cannot be deprived of right to damages, 272, 674. but has option of accepting title or recovering damages, 273, 425, 674. and after breach cannot be compelled to accept title by estoppel, 277. INDEX. 739 PURCHASER, — continued. when reconveyance necessary after recovery of damages, 281, 611, 674. when execution stayed until reconveyance, 281. cannot assert title against vendor, which by action he has alleged to be defective, 282. upon partial breach of covenant for seisin, recovers pro tanto, 283. cannot rescind sale, 287. damage on covenant against incumbrances, 288-297. when incumbrance cannot be removed, 291. when it can, 293. burden of proving value of, rests on, 293. when amount must not exceed consideration-money, 295-297. \ on covenant for further assurance, 300. when entitled to recover interest upon consideration-money, 300. costs, fees, and personal expenses, 305-312. (And see Damages, Measure of.) at sheriff's sale, receives benefit of covenants of debtor's estate, 334, n. practice in England of vesting benefit of covenants in, 335. may sue all prior covenantors, 335. limitations of rights against prior vendors, 338-341. not affected by vendor's release of covenants, 349. release by, when owner of estate, is binding, 349. and at common law barred action by subsequent grantees, 352. should be recorded, 354. renders vendor competent witness, 349, n. not affected by unknown equities, 350. when entitled to sue in name of covenantor on broken covenants, 352-358. deed of grantor in possession carries benefit of covenants in prior con- veyances to, 367. when eniitled to conveyance of title subsequently acquired by vendor, 421-443. without notice, when estate is transferred by estoppel against, 429. not estopped by covenants in purchase-money mortgage, 449. when evidence admitted to prove that purchaser agreed to discharge incumbrances, 451. not estopped by acceptance of estate, 453. unless possessed of valid title at time of transfer, 456. not estopped from denying accuracy of recitals of title, 466. (And see Estoppel.) when vendor entitled to maintain covenant under deed-poll against, 462, n. effect of declaration of vendor that estate is free from incumbrances, 533, n. when right is founded on privity of contract, action is transitory, 533. aliter when founded on privity of estate, 634. how affected by bankruptcy of vendor, 534. when covenants of vendor are joint and several, 636. covenantor to married woman, 636-641. at common law might sue heir or executor, 643. rights of, at common law when land was aliened before suit brought, 544. when personal estate is to be first exhausted by, 647. 740 INDEX. PURCHASER, — continued. when right of action barred by statute of limitation, 557. right of, on joint and several covenants, 557-560. remedy on covenants is by action of covenant, 586. when affected by misrepresentation or concealment of vendor, 569-581. ^ unless evicted not entitled to detain unpaid purchase-money at law or in equity, 691-606, 675-684. aliter if evicted, 606-611, 684-688. on compulsory purchase of outstanding title, allowed to detain purchase- money, 609. when reconveyance by, necessary after detention, 611. rule of caveat emptor applies to, 622, n. when allowed in Pennsylvania to detain purchase-money, 623-647. is entitled to prove against vendor's estate as specialty creditor, 543, 660, «. when entitled to detain unpaid ground rent, 644. estate of, not enlarged by specific performance of covenants, 658. rights of, under voluntary conveyances, 659-668. in marshalling,or administering assets, 659-663. by specific performance, 663-665. contribution, 665. exoneration, 666. injunction at suit of, 675. (See Injunction; PnncHASE-MoNEY.) when notice of incumbrance bars relief in equity, 683. when allowed in equity to rescind contract, 681. to detain purchase-money on account of insolvency or non-residence of vendor, 688-693. (See Vendor.) Q. QUALIFIED COVENANTS. (See Covenants for Title.) QUANTITY, of land, covenants for title do not extend to, 502. QUIA EMPT0RE8, effect of statute of, upon warranty, 5, 459. QUIA TIMET, ■ when specific performance enforced on principles of, 652. injunction on ground of, 669. QUIET ENJOYMENT, covenant of, form of, 25, 28. usual in lease and ground-rent deed, 26, 125. what words held to constitute, 28. is covenant in futuro, 89. covenant for, definition of, 125. INDEX. 741 QUIET ENJOYMENT, — continued. covenant for, effect of words '* by, from or under," 126. "acts and means," 129. "default," 130. " means, title or procurement," 132. not broken by tortious disturbance, 133. exceptions: 1. broken by all acts of the covenantor himself, 135. if done under assumption of right, 136. subsequent deed no breach of covenant in prior con- veyance, 137. 2. broken by enrolment of prior deed, 139, n. if against particularly named person, not restrained to lawful acts, 139. 3. when opposite intention appears, 140. not broken by acts of sovereignty, 140. broken by suit in equity, 143. eviction necessary to constitute breach of actual eviction, 144. but legal process not necessary, 144. assertion of paramount title necessary to constitute eviction, 146. adverse entry and dispossession under paramount title is eviction, 146. purchaser may surrender possession to owner of paramount title, 146. ouster in pais, 148-151. doctrine in Mississippi, 148, n. constructive eviction, 1. when caused by inability of purchaser to obtain possession, 151-158. rule applied to uncultivated lands, 154. 2. by the covenantee having compulsorily purchased leases under the paramount title after its establishment by judgment, 158. analogy to rule prohibiting tenant from disputing paramount title, 159. analogy fails between vendor and vendee, 160. no distinction between lease and purchase of paramount title, 166. 3. by the purchase or leasing of the paramount title before its establish- ment by judgment, 168. doctrine in Kentucky, 172. when all parties are before court of equity, rule as to eviction sometimes.relaxed, 175. distinction between covenants for quiet enjoyment and of warranty, and those for seisin and against incumbrance, 176, 178, re. paramount title must be adversarily asserted, 176. 4. where loss is of something which represents the land, 181. review of cases upon subject of eviction, '191. pleadings, 192. declaration must aver that disturbance was under paramount title, 192. must state paramount title to have existed before conveyance, 193. but need not set it forth particularly, 193. form of, 193 re. burden of proof is on plaintiff, 194. but may be shifted, 194. 742 INDEX. QUIET ENJOYMENT, — continued. covenant for, generally same as covenant of warranty, 215. though sometimes recovery on, allowed when denied to covenant of warranty, 216. when satisfied by statute of limitations, 360, 557. when operative to transfer after-acquired title by estoppel, 408. implied from lease, 464. or from relation of landlord and tenant, 464. when liability on, discharged by bankruptcy, 535. heir may sue on, without being named, 561. unless breach occurs in lifetime of testator, 562. measure of damages on. (See Damages, Measure of.) capacity for running with land. (See Covenants for Title.) operation by way of estoppel or rebutter. (See Estoppel.) QUITCLAIM, form of deed in Massachusetts, 36. (See Non-claim.) R. RAILROAD, on land, where breach of covenants against incumbrances, 105. REAL COVENANTS, what are, 313. (And see Covenants for Title.) REASONABLE ACTS, construction of term, 196-200. REBUTTER, operation of warranty by, 211, 375. (See Estoppel.) RECITAL, purchaser not estopped by, 388, 456. covenants not implied from, 479. RECONVEYANCE, when necessary to reconvey on covenant for seisin, 281. when execution stayed until, 281. entry of judgment reserved, 281. when decreed in equity, 282, 674. when necessary to purchaser's right to detain purchase-money, 611. RECORD, upon whom burden of proving paramount title rests, when notice to covenantor not shown by, 228. of adverse title, is evidence of eviction, 229. but not that title was paramount, 230. RECORDING ACTS, release of covenants for title is subject of, 353. when violated by doctrine of estoppel, 428. RECOUPMENT, doctrine of, 583. INDEX. 743 RECOVERY, of damages, when title reinvested in grantor by, 280. when bar to future action, 290. REDDENDUM, implied covenants raised by, 461, n. REDEMPTION, equity of, when covenants run with, 341-348. RE-ENTRY, condition of, when implied in partition, 473. REFORMATION, of covenants for title in equity, 521, 696. difficulty is in sufficiency of proof, 697. when parol evidence admitted, 697. distinction between doctrines enforced at law and in equity, 702. when distinction abolished by statute, 704. REGISTRY LAWS. (See Rbcokding Acts.) RELATIVE' VALUE, of land, when forming measure of damages, 284. RELEASE, of covenants for title, after conveyance, is ineffectual, 348. but* if made by owner of estate, is binding, 349. and at common law barred action by subsequent purchaser, 3.52. should be recorded, 353. by nominal plaintiff, is ineffective, 357. of covenants broken when made, 359. deed of, at common- law created no estoppel, 385, 415. RELIEF. (See Equity ; Purchase-Money.) RENT. (See Ground Rent; Lease.) RESCISSION, of contract, when purchaser entitled to, after breach of covenant for seisin, 266-275. not allowed on partial failure of title, 287. when collection of unpaid purchase-money restrained by, 681. RESTRICTIVE WORDS. (See the different covenants.) RESULTING TRUST, when grantor estopped by covenants from asserting, 453. REVERSION, assignee of, liable on covenants in conveyance of leasehold, 556. RHODE ISLAND, no covenants for title implied by statute in, 488. RIGHT OF LIGHT, when breach of covenant against incumbrances. 111. RIGHT OF WATER. (See Water.) RIGHT OF WAY, no breach of covenant for seisin, 80. contra of covenant against incumbrances, 100. of railroad, breach of covenant against incumbrances, 106. measure of damages for, 292. when breach of covenant of warranty, 641. 744 INDEX. EIGHT TO CONVEY, covenant for, form of, 25, 28. in England has superseded covenant for seisin, 25, 87. doctrine of actual seisin applied to, 59. has no reference to the possession, 59. when sjTionymous with covenant for seisin, 87. reason for insertion in some States, 87. breach of, by conveyance by minor, 87, n. adverse possession, 88. does not run with land, 88. pleadings, same as on covenant for seisin, 88. no right of action on, passes to assignee, 355. right of assignee to sue in name of covenantor, 357. effect of release of, 359. when operative to transfer estates by estoppel, 408. when satisfied by statute of limitations, 557. measure of damages on. (See Damages, Measure op.) capacity for running with land . (See Covenants for Title.) operation by way of estoppel or rebutter. (See Estoppel.) RIGHTS, " of assignee. (See Assignee.) covenantee. (See Puechasee.) devisee. (See Devisee.) executor or administrator. (See Executor.) heir. (See Heir.) when joint and several. (See JorNT and Several Covenants.) ROADS. (See Highways ; Public Roads.) s. SALE, vendee entitled to covenants extending back to last purchaser, 32. not rescinded by partial failure of title, 287. but purchaser recovers pro tanto, 285. by sheriff passes benefit of covenants of debtor's estate, 334, n. SATISFACTION, of covenants, when decreed in equity, 659. SEISIN, definition of, 53, 77. necessary to pass freehold, 53. except in case of fines, 63, n. actual, 54, 76. constructive, 54. seisin and disseisin, 54, n. how affected by statute of Uses, 55. covenant for, 55. form of, 25, 28. sometimes synonymous with covenant for good right to convey, 66. INDEX. 745 SEISIN, — continued. covenant for, in England, means seised of indefeasible estate, 56. how modified in part of the United States, 66. doctrine of actual seisin sufficient to support the covenant, 66-77. its origin, 56. dissent from doctrine, 61, 76. reasons on which it is supposed to be based, 63. probably arose from champerty acts, 64r-76. result of authorities, 72. breach of, what constitutes, 77-81. by adverse possession, 56-77. easements, 78. incumbrances, 78. buildings, 79. not broken by highway, 80. judgment, 80. mortgage, 80. dower, 80. contingent events, 80. pleadings on, 82-84. ohly necessary to negative covenant, 82. unnecessary to aver eviction, 83. need not set forth particulars of paramount title, 83. burden of proof, 84. assures the title, 175. distinction between covenants for quiet enjoyment, or of warranty and, 176. in England runs with land, 264, 819. rule in America, 819-333. when title enuring by estoppel defeats action on, 265-277, 421. no right of action on, passes to assignee, 855. when assignee may sue in name of covenantor, 357. effect of release of, 359. how affected by statute of limitations, 360, 557. when operative by way of estoppel, 408. when satisfied by tortious seisin creates no estoppel, 395. measure of damages in. (See Damages, Measuee of.) capacity for running with land. (See Covenants for title.) operation by way of estoppel or rebutter. (See Estoppel.) SEPARATE ESTATE, when married women liable on covenants in conveyance of, 540. SET-OFF, doctrine of, at common law, 683. particularity required in plea of, 696. SEVERAL COVENANTS, what are, 636. who may sue on, 657. SHERIFF'S SALE, covenants for title pass by, 334, n. 746 INDEX. SLAVES, warranty in sale of, not broken by emancipation proclamation, 141, 185. when specific delivery of, enforced, 651, n. SOLICITOR, liability of, if client enters into unusual covenants, 23, n. SOUTH CAROLINA, effect of covenant of warranty in, 213, n. local rules regarding notice to covenantor of action on paramount title, 224, n. covenant against incumbrances runs with land, 333. no covenants implied by statute in, 489. when purchaser allowed to detain purchase-money, 611. SOVEREIGNTY, acts of, no breach of covenants, 140. SPECIALTY CREDITORS, rights of, in England, 542-545. in America, 546. SPECIALTY DEBT, covenants for title create. 543, 660, n. SPECIFIC PERFORMANCE, origin of doctrine of, 651. of chattels, 651, n. of covenant to build, 652. ♦ when enforced on principles of quia timet, 652. covenants of indemnity, 652. no relief upon mere apprehension of damage, 653. of covenant for further assurance, 652, 656. . by tenant in tail, 656. not enforced if grantee's title is thereby enlarged, 658. in marshalling or administering assets, 659. covenants enforced whether voluntary or not, 659-663. of voluntary covenants, 663—665. contribution, 665. exoneration, 666. (See Equity.) STATE, not bound to covenant for the title, 52. exercise of eminent domain by, no breach of covenants, 140. when grant by, creates an estoppel, 402. (See the different States.) STATUTE, conveyance in violation of, creates no estoppel, 407. when covenants implied by, transfer estates by estoppel, 410. covenants implied by, in the different States, 484^497. as to liability of married women upon their covenants, 539, 541. of limitations. (See Limitations.) of 4 Anne, c. 16 (Warranties), re-enacted in many States, 378-382. cited — 4 Edw. I. c. 6 (De Bigamis), 3, 459. 6 Edw. I. c. 3 (Gloucester), 4, 6, 7, 376. INDEX. 747 STATUTE, —continued. 13 Edw. I. 0. 1 {De Bonis), 5. 13 Edw. I. 0. 18 (Westminster 2), 542. 18 Edw. I. c. 1 {Quia Emptores), 6, 314, 459. 11 Hen. VII. c. 20 (Warranties), 11, 377, 480. 27 Hen. VUI. c. 10 (Uses), 16, 17, 65, 322. 27 Hen. VIII. c. 16 (Enrolments), 55, 65. 81 Hen. VIH. c. 1 (Partition), 474. 32 Hen. VIII. c. 9 (Pretended Titles), 66, 69. ' 3 & 4 Will. & Mary, c. 14 (Fraudulent Devises), 544, 557. 4 Anne, c. 17 (Bankruptcy), 583. 4 & 5 Anne, c. 16 (Warranties), 11, 378, 382. 6 Anne, c. 35 (Implied Covenants), 481. 5 Geo. I. c. 11 (Bankruptcy), 583. 2 Geo. II. u. 47 (Set-off), 583. 5 Geo. II. c. 30 (Bankruptcy), 583. 8 Geo. II. c. 24 (Set-off), 583. 46 Geo. III. c. 135 (Bankruptcy), 583. 6 Geo. IV. c. 16 (Bankruptcy), 583. 11 Geo. IV. 0. 47 (Debts), 552. 3 & 4 Will. IV. c. 74 (Real Property), 15, 24, 317, 538. 3 & 4 Will. IV. c. 104 (Real Property), 545, 648. 4 & 5 Will. IV. 0. 30 (Exchange), 473, n. 8 & 9 Vict. c. 106 (Exchange), 473, n. 8 & 9 Vict. 0. 119 (Real Property), 18, 26, 482. 21 & 22 Vict..c. 27 (Lord Cairns'), 238, n., 648. 24 & 25 Vict. c. 134 (Bankruptcy), 534. 25 & 26 Vict. c. 42 '(Sir John Rolfs), 649. SUBSEQUENTLY ACQUIRED TITLE. (See Estoppel. ) SUIT, in equity, when breach of covenant for quiet enjoyment, 143. SURPRISE, when covenants reformed in equity for, 696. SURVEYOR, unsworn, not competent witness to prove patent, 81. T. TABLES, life insurance, admissible in evidence, 293. TAXED COSTS, when allowed as damages, 305. fAXES, ■when breach of covenant against incumbrances, 97. for quiet enjoyment, 129. TENANT, prohibited from denying landlord's title, 159. payment of rent to mortgagee defence to landlord's claim, 159, «. may protect himself under paramount title, 159. implied covenants from relation of landlord and, 464. (See Leasks.) 748 INDEX. TENANTS IN COMMON, covenant severally, 31. ■when deed of one is breach of covenant for seisin, 78. when warranty implied from partition between, 474-478. when entitled to sue severally on covenants, 560. TENANT FOR LIFE, feoffment in fee by, at common law was forfeiture of estate, 414. aliter of bargain and sale with warranty, 417, n. TENANT IN TAIL, when covenant for further assurance by, specifically enforced, 666. (See Estate Tail.) TENNESSEE, no covenants for title implied by statute in, 489. TENURE, warranty an incident of, 2, 457. TERM, value of, is measure of damages on leases, 251-255. (See Lease.) TEXAS, no covenants for title implied by statute in, 489. when purchaser allowed to detain purchase-money in, 611-617. THE USUAL COVENANTS. (See Usual Covbkants.) TIMBER, when right to cut, breach of covenant against incumbrances, 100. TIME. (See Limitation.) TITLE, definition of, 53. if questionable, vendor covenants generally, 31, /i. when paramount, need only be substantially averred, 83, 114, 193. when reinvested in grantor by recovery of damages, 280. when purchaser entitled to conveyance of estate subsequently acquired by vendor, 421-443. purchaser not estopped from denying recitals of, 456. absence of, is of itself no defence to payment of purchase-money, 598. question of, when tried in equity, 676. after-acquired. (See Estoppel.) TITLE PAPERS, when production of, demandable under covenant for further assurance, 201. TORTIOUS ACTS, covenants do not extend to, 133. exceptions, 135, 140. TORTIOUS SEISIN. (See Seisin.) TRESPASS. (See Tortious Acts.) TRUST, when voluntary declaration of, enforced in equity, 664, n. TRUSTEE, form of covenant by, 44. liability of, on covenants for title, 49. conveyance by, no estoppel to future acquisition of title in his own right, 399. INDES. 749 u. USES, when conveyances under statute of, operate as estoppel. (See Estoppel.) UNCULTIVATED LANDS, when inability to obtain possession of, is constructive eviction, 154. USUAL COVENANTS, THE, in sales in fee, 24. no suspicion of defect arises from presence of general warranty, 35. in United States generally, 34. Pennsylvania, 35. Massachusetts, 36. Virginia, 37. Kentucky, 37. Michigan, 37. Indiana, 38. Ohio, 38. Illinois, 38. Minnesota, 38. Vermont, 38, n. what are, is question of fact, 39. controlled by terms of deed, 39. by fiduciary vendors, 43. do not covenant for further assurance, 44, n. covenant by trustee, form of, 44. by cestuis que trust, 45. by agent, 48. by administrators, 49. when personally binding, 49. by ministerial vendors, 51. no covenants can be demanded from, 51. in ground-rent deeds, 125.' in leases, 125. VALUE. (See Damages; Eviction; Land Improvements.) VENDOR, must covenant for the title, 23. what covenants demandable from, 25-29. attorney of, responsible for unusual covenants, 23. in England, covenants only against his own acts, 28. or acts of last purchaser, 32. of leasehold interest, covenants are restricted, 32, n. covenants by fiduciary, 43. can limit their liability, 61. when principal bound by covenants by agent, 48. when covenants by agent personally binding, 49. by administrators, 50. 750 INDEX. VENDORS, — continued. no covenants demandable from ministerial, 51. should except known incumbrances from covenants, 116-121. fraud of, cannot increase damages on covenants, -236. remedy of purchaser, 245. not concluded by consideration clause, 251. but may prove amount paid by parol, 259. when entitled to compel purchaser to accept title by estoppel in mitigation of damages, 267-275, 421. should not have this option, 273, 277. when title reinvested in, by recovery of damages, 280. when compelled to pay purchaser's expenses as damages, 305-312. in England, was a cestui que trust, 317, n. . limitation of liability of prior, 338-341. paylnent of judgment by, when bar to subsequent action, 335. liability on general covenants, 335. on limited covenants, 335. when estate is divided, 337, 338. after release of covenants, is competent witness for purchaser, 349, n. aliter without release, 349, n. unless his interest is equally balanced, 349, n. deed of, in possession, passes benefit of prior covenants, 367. not estopped from asserting title by disseisin of grantee, followed by ad- verse possession, 398. nor from acquiring title as trustee after conveyance in his own right, 399. when purchaser entitled to conveyance of title subsequently acquired by, 421-443. when entitled to prove that incumbrances were to be discharged by pur- chaser, 451. purchaser not estopped by acceptance of estate from, 453. unless possessed of valid title at time of transfer, 455. when entitled to maintain covenant upon deed-poll, 462, n. liability of, in marshalling assets, 532. effect of declaration of, that estate is free from incumbrance, 633, n., 665-668. liability of, when founded on privity of contract is transitory, 633. aliter when founded on privity of estate, 534. when discharged by bankruptcy, 403, 534. when joint and several, 536. who must sue on, 557. married women, 536-541. at common-law covenants of, did not bind devisee, 550. covenants of, bind executor, 564. when concealment or misrepresentation by, will amount to fraud, 569- 681. rights of, under voluntary conveyances, 659-669. covenants for title create specialty debt against estate of, 643, 660, n. injunction at suit of, 669-676. when restrained from collecting unpaid purchase-money, 607, 684-696. (See Covenantor ; Equity; Estoppel; Pukchasbr.) INDEX. 751 VERMONT, usual covenants in, 38, n. no covenants for fitle implied in, 488. VIEGINIA, usual covenants in, 37. covenants implied from statute in, 494. statutory provisions as to liability of married women upon their cove- nants, 639, n. wheij purchaser allowed to detain purchase-money in, 682. VOLUNTARY CONVEYANCE,, covenants in, when enforced in equity, 659. in marshalling assets, 659. create a specialty debt, 543, 660, n. specific performance of, 664. contribution, 666. exoneration, 666. effect of declaration that estate is free from incumbrance, 665-668. of trust estate when supported, 664, n. VOLUNTARY DISPOSSESSION. (See Eyiction.) VOUCHER, writ of, when remedy on warranty, 12. VOUCHING, to warranty, 218. w. WANT OF ESTATE. (See Assignee.) WARRANT AND DEFEND, meaning of, 217. WARBANTIA CHARTJE, writ of, 12, 11. judgment in, 12. quia timet implacilari, 13. judgment pro loco et tempore, 13. was remedy on warranty, 211, 213. not allowed without notice to warrantor, 231. only brought against heir, 643. WARBANTIZO, void, necessary to create express warranty, 459, n. WARRANTY, history of, 1-12. implied from dedi, 2, 5, 213. remedy on, 213. effect of, at common law, 2, 7, n. express, did not restrain implied, 3. how limited by statute of Gloucester, 3, 4. effect of statute de donis, 5. quia emptores, 5. express, when introduced, 6. form of, 6, n. 752 INDEX. W ARRA'NIY,— continued. introduction of collateral, 6-11. abolished in England, 378. • many States, 382. effect of statute 11 Hen. VII., 11. 4 & 5 Anne, 11. commencing by disseisin void, 11, n., 414. abolished in England, 12. remedy upon, by warrantia chartce, 12. writ of voucher, 12. . writ and returns in actions on, 14. measure of damages on, 15, 233. not void in deeds under statute of Uses, 16, 17, 205. extended to incorporeal hereditaments, 185. was, sometimes used in America, 207, n. could only be employed when both estate transferred and paramount title were freeholds, 208. when failed as covenant real, was allowed to be used as personal covenant, 16, 209. how diiferent from modern covenants, 211. vouching to, 217. notice of paramount title must be given to warrantor, 231. ran with land, 316. eifect as rebutter, 375. enured as means Qf redress and defence, 383. required an estate to support it, 413. by what assurances such estate was created, 413. could not enlarge estate, 415, 433. common-law requisites to, 416. implied, at common law, 457. not by " grant, bargain and sell," 458, n. was unlimited, 460. express did not limit implied, 460. did not run with land, 461. from exchange, 471. from partition by writ, 473. but not partition by deed, 476-478. no estoppel created by, 479. remedy on, 479. descended upon heir at common law, 318, 475. obligation of heir on, 375. not liable unless named, 541. and bad sufficient assets by descent, 542. heir could not take advantage of, unless named, 561. nor could assignee, 564. in sale of chattels, 48, 81. covenant of, form of, 28. not used in England, 17, 206. principal covenant in United States, 17. INDEX. 753 WARRANTY, — continued. covenant of, introduction of, 207. often supersedes covenant for quiet enjoyment, 27. how different from covenants for seisin and against incumbrances, 176, 178, n. does not include all covenants, 176, n., 213. doctrine in South Carolina, 213, n. is literal translation of warranty, with addition of words of covenant, 217. different views of, 207. words of, 217. is merely covenant for quiet enjoyment, 208, 21.5. definition of, 217. notice to covenantor of action on paramount title, 219. effect of, 220. to prosecute title, 220. what is proper notice, 221. whether parol notice is sufficient, 221. when question of, is matter for jury, 223. must be given in reasonable time, 224, n. covenantor must be allowed benefit of all defences covenantee could have made, 224, n. local rules in South Carolina, 224, re. evidence allowed that title is not derived from covenantee, 227. when plaintiff required to prove the title was paramount after notice, 228. _ when no notice, 229. record of adverse suit is evidence of eviction, 229. but not that title is paramount, 230. notice not necessary to entitle plaintiff to recover on covenants, 231. aliter on warranty at common law, 231. but should be given, 232. review of authorities on subject of notice to covenantor, 232. when barred by statute of limitations, 360, 357. estoppel caused by, 404. when estate enuring by estoppel defeats action on, 265-277, 421. in Massachusetts, doctrine of marshalling assets depends on presence of, 534, n. when liability on, is discharged by bankruptcy, 535. heir may sue on without being named, 561. unless breach occurred before estate descended, 562. in sale of slaves, not broken by emancipation proclamation, 141. breach of. (See Eviction ; Quiet Enjoyment.) measure of damages on. (See Damages, Mbasuke of.) capacity for running with land. (See Covenants for Title.) operation by way of estoppel or rebutter. (See Estoppel.) WATER, diversion of stream, when breach of covenant of warranty, 181. WATERCOURSE. (See Incumbrances ; Sbisin.) 48 754 INDEX. WAY. (See Right op Wat.) WHAT COVENANTS A PUECHASER HAS RIGHT TO EXPECT. (See Usual Covenants, The.) WIDOW, damages recoverable in writ of dower, 246. WILL, covenants demandable from vendor claiming under, 33. WISCONSIN, aU covenants run with land, 832. no covenants implied by statute in, 463, »., 488. when purchaser allowed to detain purchase-money, 606. WITNESS, vendor is competent, after release of covenants, 349, n. aliter without release, 349, n. unless interest is equally balanced, 349, n. or conveyance by, contains no covenants, 349, n. WOODLEAVE, is breach of covenant against incumbrances, 101. WORDS, what will amount to, of covenant, 207, n. signification of, acts and means, 129. by, from or under, 126. concessi, 457. debt, 552. dedi, 212, 457, 460. default, 130. demisi, 151, 212, 457. excamhium, 472. good and sufficient deed, 40. grant, bargain and sell, 458, n. means, title or procurement, 132. warrant and defend, 217. warrantizo, 459, n. yielding and paying, 461. WRIT. (See Partition ; Warranty.) WRITTEN COVENANTS, in Iowa, control printed ones, 527, n. YIELDING AND PAYING, covenants implied from, 461. Cambridge : Press of John Wilson & Son. KF 661 R25 1873 Author Eawle, William Henry Vol. Title Copy A practicea treatise on the law o: covenants for title Date Borrower's Name