This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
That a railway right of way does not involve a breach, see Van Ness v. Royal Phosphate Co., 60 Fla. 284, 30 L. R. A. N. S. 833, Ann. Cas. 1912C, 647, 53 So. 381; Brown v. Young, 69 Iowa, 625, 29 N. W. 941; Goodman v.
A covenant for quiet enjoyment, when accompanying a lease for years, is, as before stated, broken only if the interference with the enjoyment is by the lessor or by a third person under title paramount.58 So when such a covenant, or a covenant of warranty, occurs in a conveyance in fee simple, there can be no recovery unless the disturbance of the grantee's enjoyment is by the grantor59 or by a third person under lawful claim of title.60 It is not broken by a tortious disturbance by a stranger, this being something beyond the
Heilig, 157 N. C. 6, 36 L. R. A. (N. S.) 1004, 72 S. E. 866; Col-clough v. Briggs, 99 S. C. 181, 83 S. E. 35; Milwaukee etc. R. Co. v. Strange, 63 Wis. 178, 23 N. W. 432.
55. That a highway involves a breach, see Copeland v. Mc-adory, 100 Ala. 553, 13 So. 545 (though known to covenantee); Louisville Public Warehouse Co. v. James, 21 Ky. L. Rep. 1726, 56 S. W. 19 (semble); Haynes v. Young, 36 Me. 557.
That a highway does not involve a breach, see Craus v. Durdall, 154 Iowa, 468, 134 N. W. 1086; Hymes v. Estey, 116 N. Y. 505, 15 Am. St. Rep. 421, 22 N. E. 108 (if actual or constructive notice to covenantee); Butte v. Riffe, 78 Ky. 352 (ditto); Ake v. Mason, 101 Pa. 17 (ditto). A like view has been taken of a public levee. Ireton v. Thomas,
84 Kan. 70, 113 Pac. 306, and a public wharf, Burke v. Trabue's Ex'r, 137 Ky. 580, 126 S. W. 125.
56. Ante, Sec. 452, notes 20-23, 25.
57. Rawle, Covenants, Sec. 129; Frost v. Earnest, 4 Whart. (Pa.) 86; Brimmer v. City of Boston, 102 Mass. 19; Cooper v. Blood-good, 32 N. J. Eq. 209; Stevenson v. Loehr, 57 111. 509, 11 Am. Rep. 36; Folts v. Huntley, 7 Wend. (N. Y.) 210.
58. Ante, Sec. 49 (b).
59. See post, this section, notes 63-67.
60. Davis v. Smith, 36 111. 35,
That his wrongful entry on the premises without claiming title, or without doing such acts as amount to an assertion of title, is insufficient, because constituting merely a trespass not amounting to an eviction,65 the trend of the later authorities is apparently to the effect that any intentional interference by the covenantor with the covenantee's enjoyment and use of the premises constitutes a breach of the covenant, regardless of whether it results in an eviction.66
85 Am. Dec. 385; Bostwick v. Williams, 36 111.. 35, 85 Am. Dec. 385; Burrus v. Wilkinson, 31 Miss. 537; Kent v. Welch, 7 Johns. (N. Y.) 258, 5 Am. Dec. 266; Johnson v. Nyce's Ex'rs, 17 Ohio 66, 49 Am. Dec. 444; Mccontrol of the grantor, and for which the grantee has his remedy against the wrongdoer.61
The covenant for quiet enjoyment may be general in terms, to the effect that the grantee shall quietly enjoy the premises, or it may be expressly restricted to their enjoyment free from interference by reason of the acts of the grantor and of those persons who claim through or under him, it being then referred to as a "qualified"' or "limited" covenant.62 So the covenant of warranty may extend to the acts and claims of all persons whomsoever (general warranty), or it may extend merely to the acts and claims of the grantor and those claiming under him (special warranty). The following remarks are based upon the assumption that, in the particular case, the covenant is general in form.
- Breach by act of covenantor. The question of the character of the act which, when committed bv the covenantor himself, will constitute a breach of the covenant for quiet enjoyment, is presumably to be determined with reference to the same considerations as control in the case of a similar covenant in a lease, which latter has frequently been the subject of decision.63 While it has been said that the lessor's act must, for this purpose, amount to an eviction,64 and
Grew v. Harmon, 164 Pa. St. 115, 30 Atl. 265, 268; Knapp v. Town of Marlboro, 34 Vt. 235.
61. Hayes v. Bickerstaff, Vaughan, 118; Noonan v. Lee, 2 Black (U. S.) 499; Chestnut v. Tyson, 105 Ala. 149, 53 Am. St. Rep. 101, 16 So. 723; Hoppes v. Cheek, 21 Ark. 585; Playter v. Cunningham, 21 Cal. 229; Barry V. Guild, 126 111. 439, 2 L. R. A. 334, 18 N. E. 759; Gardner v. Keteltas, 3 Hill (N. Y.) 330; Poley v. Lacert, 35 Oreg. 166, 58 Pac. 37. But a covenant against the acts of a certain person applies to his tortious, as well as his rightful, acts. Rawle, Covenants, Sec. 128; Foster v. Mapes, Cro. Eliz. 212.
62. As to the construction of such words of qualification, see 1 Tiffany, Landlord & Tenant, p. 523; Rawle, Covenants, ch. 6.
63. See 1 Tiffany, Landlord & Tenant, Sec. 79d.
64. Rawle, Covenants, Sec. 128; Sedgwick v. Hollenback, 7 Johns. (N. Y.) 376; Akerly v. Vilas, 23 Wis. 207, 99 Am. Dec. 165.
It has occasionally been asserted or assumed that a grantor may be liable, on his covenant of warranty in a conveyance by him in fee simple, by reason of the fact that he makes a subsequent conveyance to another, who takes without notice and records his conveyance before the prior conveyance is recorded, with the result that nothing passes by such prior conveyance.67 This view is to be regarded as based, it would seem, on the theory that the entry by the grantee in the second conveyance is to be considered as in behalf of or by direction of the common grantor, who is thus in the position of one who, after conveying with warranty, himself evicts his covenantee.
- Breach by reason of paramount claim. In order that there be a breach of the covenant of warranty or of that for quiet enjoyment by reason of a paramount consummate.72 There are, however, some exceptions to the requirement of an eviction. Of these the most important is the case of a covenantee who is unable, upon receiving the conveyance, to obtain possession of the land, owing to the fact that another person, having a superior title thereto, is in possession, it being considered unnecessary, in such a case, that the covenantee should be compelled to take forcible possession in order that he himself may be ejected, or to bring a suit for the land, which would necessarily result adversely to him,73 and a like doctrine has been applied when the paramount owner, though not in possession at the time of the conveyance, took possession before the covenantee entered and in that way excluded the latter.74