As to when the covenant of seisin is broken the cases are conflicting, most courts holding that it must be broken at the time the
322 Mecuni v. Railroad Co., 21 111. 533; Clopton v. Bolton, 23 Miss. 78.
323 Pecare v. Chouteau's Adm'r, 13 Mo. 527; Howell v. Richards, 11 East, 642. For -words raising a covenant of seisin, see Wetzel v. Richcreek (Ohio) 40 N. E. 1004.
324 Thnrman v. Cameron, 24 Wend. (N. Y.) 87; Loud v. Darling, 7 Allen (Mass.) 205. 325 1 Stim. Am. St. Law, § 1401.
Deed is made if at all,326 and others being to the effect that it may be broken at any time.327 Under the former ruling the covenant is construed as a covenant of lawful seisin, while the other ruling would make it the same as one of indefeasible seisin, which would be practically the same as a covenant of warranty. The covenant may, of course, be expressly made one of lawful seisin or one of indefeasible seisin.328 If the covenant of seisin is construed as for a lawful seisin only, it does not run with the land, and, if not broken when the conveyance is made, there can be no subsequent breach.329
The covenant for lawful seisin is satisfied if the grantor be in the possession of the land at the time of the conveyance, either himself or by another for him. Mere possession by the grantor under a claim of right is sufficient, even though his title is not good against all the world. All that is required under a covenant of lawful seisin is a seisin in fact.330 A covenant of seisin is broken when the grantor does not have immediate possession of the land, as when his estate is in remainder,331 when there is a deficiency in the amount of land conveyed,332 or when the land described in the conveyance does not exist.333 It is broken, also, if there are fixtures on the land which may be removed by a third person, who owns them.334 If the grantor was not sole seised, but a joint owner was in posses326 Abbott v. Allen, 14 Johns. (N. Y.) 248; Mccarty v. Leggett, 3 Hill (N. Y.) 135; Wilson v. Cochran, 46 Pa. St. 229; Baker v. Hunt, 40 111. 265.
327 Sehofield v. Homestead Co., 32 Iowa, 317; Coleman v. Lyman, 42 Ind. 289; Backus' Adm'rs v. Mccoy, 3 Ohio, 211. And see Dickson v. Desire's Adm'r, 23 Mo. 151, This is the English doctrine. Kingdon v. Nottle, 4 Maule & S. 53.
328 Garfield v. Williams, 2 Vt. 327.
329 Greenley v. Wilcocks, 2 Johns. (N. Y.) 1; Hamilton v. Wilson, 4 Johns. (N. Y.) 72; Bickford v. Page, 2 Mass. 455; Ogden v. Ball, 40 Minn. 94. 41 N. W. 453. But see Kimball v. Bryant, 25 Minn. 496.
330 Follett v. Grant, 5 Allen (Mass.) 175; Raymond v. Raymond, 10 dish. (Mass.) 134; Scott v. Twiss, 4 Neb. 133.
331 Mills v. Catlin, 22 Vt. 106. See Wilder v. Ireland, 8 Jones (N. C.) 90.
332 Martind. Conv. (2d. Ed.) § 165. But see Mcarthur v. Morris, 84 N. C. 405.
333 Bacon v. Lincoln, 4 Cush. (Mass.) 212.
334 Van Wagner v. Van Nostrand, 19 Iowa, 422.
Sion with him, the covenant is broken,335 as it is also by adverse possession by another.336 But the covenant is not broken by the existence of a highway or other easement,337 by a mortgage on the land,338 nor by an outstanding right of dower.339 An existing lease of the premises conveyed is no breach of the covenant of seisin if the lease is known to the grantee.340 If the grantee is seised himself, he cannot claim a breach of the covenant of seisin.341 For acts which are a breach of a covenant of indefeasible seisin, reference must be made to the covenant of warranty.* The covenant of right to convey is practically the same as the covenant of seisin.342
274. Covenant Against Incumbrances-a covenant against incumbrances is that there are no outstanding rights in third persons, in the land conveyed.
275. How Broken-this covenant is broken by any right to or interest in the land which may subsist in third persons to the diminution of the value of the estate, but consistently with the passing of the fee.
This covenant is used to protect the grantee against incumbrances existing on land. The incumbrances which are covered by this covenant are of two kinds: Those which are permanent in their nature, such as easements, and those which may be removed, such as mortgages. The covenant against incumbrances is broken when the conveyance is made or not at all, because the incumbrances must exist then, if at all.343 But incumbrances which do not detract from the value of the premises conveyed until they are enforced against it are held to run with the land, so that they may be sued on by the person who holds the land at the time the incumbrance is enforced.344 When there are incumbrances of this kind on the land, they constitute a breach of the covenant from the time of conveyance,345 though, if sued on before the incumbrance is enforced, only nominal damages can be recovered.346
335 Downer's Adru'rs v. Smith, 38 Vt. 464; Sedgwick v. Hollenback, 7 Johns. (N. Y.) 376.
336 Wetzel v. Richcreek (Ohio) 40 N. B. 1004.
337 Whitbeck v. Cook, 15 Johns. (N. Y.) 483; Vaughn v. Stuzaker, 16 Ind. 338.
338 stanard v. Eldridge, 16 Johns. (N. Y.) 254; Reasoner v. Edmundson, 5 Ind. 393.
339 Fitzhugh v. Croghan, 2 J. J. Marsh. (Ky.) 430; Tuite v. Miller, 10 Ohio, 383.
340 Lindley v. Dakin, 13 Ind. 388.
341 Pitch v. Baldwin, 17 Johns. (N. Y.) 161.
* Post, p. 447.
342 Chapman v. Holmes' Ex'rs, 10 N. J. Law, 20.
The covenant against incumbrances is broken by an outstanding mortgage, unless the grantee is bound to pay it,347 by a right of dower,348 by a paramount title,349 by an unexpired lease,350 by an outstanding judgment,351 or by unpaid taxes which constitute a lien on the land.352 The existence of an easement is a breach of the covenant against incumbrances.353 Even when the easement is known to the grantee at the time he takes the conveyance, most cases hold that it is a breach of the covenant354 The covenant against incumbrances may also be broken by the premises conveyed being subject to covenants which run with the land,355 and conditions which affect the use of the premises.356