343 Clark v. Swift, 3 Mete. (Mass.) 390; Cathcart v. Bowman, 5 Pa. St. 317; Boyd v. Belmont, 58 How. Prac. (N. Y.) 513; Mitchell v. Warner, 5 Conn. 497. But see M'crady's Ex'rs v. Brisbane, 1 Nott. & Mcc. (S. C.) 104. An implied covenant against incumbrances is broken immediately. Streeper v. Abeln, 59 Mo. App. 485.
344 Richard v. Bent, 59 111. 43; Knadler v. Sharp, 36 Iowa, 236; Cole v. Kimball, 52 Vt. 639.
345 Richard v. Bent, 59 111. 43.
346 Bean v. Mayo, 5 Greenl. (Me.) 94.
347 Or unless the mortgage is excepted from the operation of the covenant. Estabrook v. Smith, 6 Gray (Mass.) 572.
348 Dower is an incumbrance, whether Initiate or consummate. Blgelow v. Hubbard, 97 Mass. 195; Walker's Adm'r v. Deaver, 79 Mo. 664.
349 Prescott v. Trueman, 4 Mass. 627.
350 Clark v. Fisher, 54 Kan. 403, 38 Pac. 493
351 Jenkins v. Hopkins. 8 Pick. (Mass.) 346; Hall v. Dean, 13 Johns. (N. T.) 105.
352 Lafferty v. Milligan, 165 Pa. St. 534, 30 Atl. 1030; Hill v. Bacon, 110 Mass. 388; Mitchell v. Pillsbury, 5 Wis. 407; Campbell v. Mcclure, 45 Neb. 608, 63 N. W. 920; Long v. Moler, 5 Ohio St. 271. But not when they have not become a lien. Bradley v. Dike (N. J. Sup.) 32 Atl. 132.
353 Sehaeffler v. Michling, 13 Misc. Rep. 520, 34 N. Y. Supp. 693; Morgan v. Smith, 11 111. 194; Isele v. Bank, 135 Mass. 142. But see Dunklee v. Railroad Co., 4 Fost. (N. H.) 489.
276. Covenant Of Warranty-a covenant of warranty is an assurance by the grantor of an estate that the grantee shall enjoy it without interruption by virtue of a paramount title.
277. How Broken-a covenant of warranty is broken by a lawful eviction from all or part of the premises.
278. Special Warranty-the covenant of warranty may be restricted to certain persons or claims.
In feudal law the covenant of warranty bound the warrantor in the covenant, on the breach of the covenant and eviction of the covenantee, to give the latter lands equal in value to those he had lost.357 The modern covenant of warranty gives the grantee only a right of action to recover damages for the breach of the covenant358 The covenant of warranty runs with the land. It estops the warrantor, and those claiming under him, from setting up a subsequently acquired title against the grantee.359 And some cases hold that if the grantor, after his conveyance, acquires a title paramount to the one which he has transferred, it immediately inures to the benefit of the grantee.360 Statutory provisions to this effect exist in some states.361 The covenant of warranty prevents the heirs of the warrantor from setting up a paramount title to the lands conveyed if they have received assets from their ancestor, thus avoiding circuity of action; otherwise, if the heirs were permitted to recover from the grantee under their paramount title, the grantee could in turn sue them on the covenant of warranty, and enforce the damages out of the assets which they had received from the warrantor.362
354 Beach v. Miller, 51 111. 207; Barlow v. Mekinley, 24 Iowa, 69; Yancey v. Tatlock (Iowa) 61 N. W. 997; Kellogg v. Maliii, 62 Mo. 429. Contra, Patterson v. Arthurs. 9 Watts (Pa.) 152.
355 Kellogg v. Robinson, 6 Vt. 276; Bronson v. Coffin, 108 Mass. 175.
356 Kellogg v. Robinson, 6 Vt. 276. But a condition which may defeat the estate is not a breach. Estabrook v. Smith, 6 Gray (Mass.) 572.
357 Dig Hist. Real Prop. (4th Ed.) 249.
358 Paxson v. Lefferts, 3 Rawle (Pa.) 67, note; Jones v. Franklin, 30 Ark. 631.
359 Bates v. Norcross, 17 Pick. (Mass.) 14; White v. Patten, 24 Pick. (Mass.) 324; Jackson v. Stevens, 13 Johns. (N. Y.) 316; King v. Gilson, 32 111. 353: Terrett v. Taylor, 9 Cranch, 43, 53.
The covenant of warranty is broken by an eviction by judgment of law from part or all of the premises.363 A mere disturbance of the grantee will not constitute a breach of the covenant, for the disturbance, to be a breach, must be lawful.364 The grantee, however, need not wait for an actual ouster under a judgment recovered against him, but may yield the possession to one having a paramount title without incurring the cost of a suit,365 and he may even accept a title from such person without losing his right to rely on the covenant of warranty.366 Though when he brings action on the covenant, he must show that the title to which he yielded was a valid one.367 A mortgage enforced against the premises conveyed
360 Knowles v. Kennedy, 82 Pa. St. 445; Crocker v. Pierce, 31 Me. 177.
361 Stim. Am. St. Law, § 1454 B.
362 Bates v. Norcross, 17 Pick. (Mass.) 14; Cole v. Raymond, 9 Gray (Mass.) 217. But see Jones v. Franklin, 30 Ark. 631. When those who would be the grantor's heirs take by purchase, they are not bound. Whitesides v. Cooper, 115 N. C. 570, 20 S. E. 295.
363 Norton v. Jackson, 5 Cal. 262; Hannah v. Henderson, 4 Ind. 174; Stewart v. Drake, 9 N. J. Law, 139. And see Lucy v. Levington, 2 Lev. 26.
364 Gleason v. Smith, 41 Vt. 293.
365 Hamilton v. Cutts, 4 Mass. 349; Claycomb v. Munger, 51 111. 376; Funk v. Creswell, 5 Iowa, 62.
366 Eversole v. Early, 80 Iowa, 601, 44 N. W. 897; Hall v. Bray, 51 Mo. 288; Potwin v. Blasher, 9 Wash. 460, 37 Pac. 710; Dillahunty v. Railway Co., 59 Ark. 699, 27 S. W. 1002, and 28 S. W. 657. But see Huff v. Land Co. (Ky.) 30 S. W. 660.
367 Somers v. Schmidt, 24 Wis. 417; Merritt v. Morse, 108 Mass. 276; Cheney v. Straube, 43 Neb. 879, 62 N. W. 234.
448 title. (Ch. 16 is a breach of the covenant of warranty,368 as is the removal of fixtures by one having the right to do so.369 The existence of a valid easement over the land conveyed is also a breach of the covenant.370 But a taking of the land under the right of eminent domain does not constitute a breach.371 The covenant for quiet enjoyment is the same as the covenant of warranty in all its practical effects.372 It is an assurance to the grantee that his enjoyment of the land conveyed shall not be disturbed by lawful means,373 but does not attempt to protect him against mere disturbances by trespassers.374