The covenant of warranty so far considered is one of general warranty, but the covenant may be limited in its operation to the claims of particular persons. A covenant of special warranty is many times inserted in quitclaim deeds, by which the grantor warrants the title against all persons claiming through him. Such a covenant of special warranty does not prevent the grantor from setting up a subsequently acquired title against the covenantee.375 Another form of covenant of special warranty is where the grantor covenants that the title shall be good against all claims except a certain mortgage which exists upon the land.376
368 Harlow v. Thomas, 15 Pick. (Mass.) 66; Tuft v. Adams, 8 Pick. (Mass.) 547; White v. Whitney, 3 Mete. (Mass.) 81; Cowdrey v. Coit, 44 N. Y. 382.
369 west v. Stewart, 7 Pa. St. 122.
370 Harlow v. Thomas, 15 Pick. (Mass.) 66; Russ v. Steele, 40 Vt. 310. But see Hymes v. Esty, 36 Hun (N. Y.) 147; Brown v. Young, 69 Iowa, 625, 29 N. W. 941.
371 Peck v. Jones, 70 Pa, St. 83; Brimmer v. City of Boston, 102 Mass. 19.
372 Bostwick v. Williams, 36 111. 65, 69; Emerson v. Proprietors of Land, 1 Mass. 464. But see Fowler v. Poling, 6 Barb. (N. Y.) 165.
373 Sedgwick v. Hollenback, 7 Johns. (N. Y.) 376.
374 Greenby v. Wilcocks, 2 Johns. (N. Y.) 1; Beebe v. Swartwout, 3 Gllman (111.) 180; Underwood v. Birchard, 47 Vt. 305.
375 Jackson v. Winslow, 9 Cow. (N. Y.) 13; Trull v. Eastman, 3 Mete. (Mass.) 124; Western Min. & Manuf'g Co. v. Peytona Cannel Coal Co., 8 W. Va. 406; Buckner v. Street, 15 Fed. 365.
376 Freeman v. Foster, 55 Me. 508.
Action for Breach.
At common law, after the breach of a covenant,377 there could be no assignment of it.378 This is still true, except in states where choses in action are assignable.379 A covenant of warranty may be apportioned, as, when the land to which it is annexed is divided and held by a number of owners, the covenant attaches to each part, and each grantee may sue on the covenant.380 When there have been several successive conveyances, each with covenants of warranty, and the last grantee is evicted, he may sue all of the warrantors, but can recover only from one.381 When the grantor is sued on covenants of warranty, if the land has been warranted to him, he may vouch in his warrantor by giving him notice of the suit,382 and by so doing he relieves himself of the necessity of proving in a subsequent suit against such warrantor that the action in which he was defeated was well founded.383
279. Covenant For Further Assurance-a covenant for further assurance is an agreement by the grantor to do any other acts which may be necessary for perfecting the grantee's title.
The covenant for further assurance is used as a means of enforcing specific performance of a conveyance which has been made, and
377 As to the measure of damages for breach of covenants, see Hale, Dam. 367. 378 Lewes v. Ridge, Cro. Eliz. 863.
379 Slater v. Rawson, 1 Mete. (Mass.) 450; Allen v. Kennedy, 91 Mo. 824, 2 S. W. 142.
380 Dickinson v. Hoomes' Adm'r, 8 Grat. (Va.) 353. And see Kane v. Sanger, 14 Johns. (N. Y.) 89; Lane v. Woodruff (Kan. App.) 40 Pac. 1079.
381 Withy v. Mumford. 5 Cow. (N. Y.) 137.
382 Grant v. Hill (Tex. Civ. App.) 30 S. W. 952. The warrantor may be required to defend, though the claim set up is invalid. Meservey v. Snell (Iowa) 62 N. W. 767. An intermediate covenantee who has not been damnified cannot recover from prior covenantors. Booth v. Starr, 1 Conn. 244.
383 Merritt v. Morse, 108 Mass. 276; Somers v. Schmidt, 24 Wis. 417; Paul v. Witman, 3 Watts & S. (Pa.) 409; Mcconnell v. Downs, 48 111. 271. The warrantee cannot recover from the warrantor when the former instigated a third person to claim title to the land. Hester t. Hunnicutt, 104 Ala, 282, 16 South. 162.
Real Prop.-29 might prove defective in some respects. The covenant applies not only to the doing of further acts which may be necessary to protect the grantee's title, but applies also to the execution of additional instruments to give the grantee a perfect title of record, and to remove any clouds upon such title.384 The covenant for further assurance is one which runs with the land,385 and is broken by the failure of the covenantor to do the various acts necessary for perfecting the grantee's title when requested.386
280. Title by estoppel arises when the holder of the real title is prevented by law from asserting it in denial of his acts or representations, against one who has relied on them to his injury. The estoppel which gives such title is either
(a) In pais (p. 451), or
(b) By deed (p. 453).
Title by estoppel is that title which is created by presumption of law by an estoppel which prevents the actual owner of land from setting up his title against one who has acquired rights in the land in reliance upon some acts or representations of the owner, and would be injured by permitting the owner to say that those acts or representations were false.387 When such presumptions arise, they are conclusive, and cannot be rebutted by the owner; though he may, of course, say that the necessary facts to constitute the estoppel do not exist.388 The effect of an estoppel is to convey any title
384 Lamb v. Burbank, 1 Sawy. 227, Fed. Cas. No. 8,012; Gwynn v. Thomas, 2 Gill & J. (md.) 420; Warn v. Bickford, 7 Price, 550.
385 Colby v. Osgood, 29 Barb. (N. Y.) 339; Middlemore v. Goodale, Cro. Car. 503.
386 King v. Jones, 5 Taunt. 418. Cf. Kingdon v. Nottle, 1 Maule & S. 355.
387 Bush v. Person, 18 How. 82.
388 Welland Canal Co. v. Hathaway, 8 Wend. (N. Y.) 480; Hanrahan v. O'reilly, 102 Mass. 204. Recitals do not estop a party from showing fraud. Hickman v. Stewart, 69 Tex. 255, 5 S. W. 833. An agreement to divide the proceeds of lands does not create an estoppel. Oliphant v. Burns, 146 N. Y. 218, 40 N. E. 980.