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 .
In most conveyances of land there are one or more covenants by the grantor as to the title to the premises, under which the grantee may, in case of failure of title, obtain indemnity in damages. These covenants are of certain recognized classes, having, as a rule, fixed legal effects, though these may be varied by the construction placed upon the covenant in the particular case.60
In the earlier stages of the common law no such personal covenants were recognized, but the feoffment was usually attended with a "warranty." This common-law warranty, which, taking its origin in the obligation of the feudal lord to protect the holding of his tenant, continued, even after the statute of Quia Emptores, to be a usual incident of a feoffment, was in its nature a "covenant real," that is, compensation for its breach was awarded, not in damages, but in kind, by a judgment in favor of the warrantee or his heirs, against the original warrantor or his heirs, for the recovery of other lands equal in value to those of which the warrantee had been deprived. A warranty, operating, as it did, against the heir of the warrantor, was, after the statute De Donis and before the decision in Taltarum's Case, utilized for the purpose, in particular cases, of barring estates tail, and in the efforts to extend its effectiveness in this direction the law of the subject was immensely extended and complicated.61 The remedy on a warranty was available only in connection with freehold estates, and con-sequently, if the warranty was attached to a term of years, or if the grantee of a freehold estate was evicted for a term, the warrantee could not recover.62 In the later history of the subject, however, there was a relaxation of this rule to the extent that when, in such a case, the warranty failed as a covenant real, it might be construed as a personal covenant on which an action for damages might be brought.63
445; Badger Lumber Co. v. Marion Water Supply, Electric Light & Power Co., 48 Kan. 182, 15 L. R. A. 652, 30 Am. St. Rep. 301, 29 Pac. 476; Gorham v. Eastchester Electric Co., 31 Abb. N. C. 198, 29 N. Y. Supp. 1094.
59. It was so held as to fencing materials. Mclaughlin v. John, 46 111. 163; Ripley v. Paige, 12 Vt. 533; Hackett v. Amsden, 57 Vt. 432; Conklin v. Parsons, 2 Pinney (Wis.) 264; Contra, Cook v. Whiting, 16 111; Hinkle v. Hinkle, 69 Ind. 134; Longino v. Webster - (Tex. Civ. App.) - 88 S. W. 445. As to railroad materials. Palmer v. Forbes, 23 111. 301, and as to building materials. Byrne v. Werner, 138 Mich. 328, 69 L. R. A. 900, 110 Am. St. Rep. 315, 101 N. W. 555; Contra, Hinkle v. Hinkle, 69 Ind. 134; Woodman v. Pease, 17 N. H. 282; Peck v. Batchelder, 40 Vt. 233, 94 Am. Dec. 392; Blue v. Gunn, 114 Tenn. 414, 69 L. R. A. 892, 108 Am. St. Rep. 912, 4 Ann. Cas. 1157, 108 S. W. 408.
60. See Rawle, Covenants for Title, Sec. 57. The following outline of the law of covenants for title is based almost entirely upon this most admirable work.
After the introduction of conveyances under the Statute of Uses, warranty, which was in its origin associated with the transfer by feoffment, was gradually supplanted by personal covenants, the purpose of which was to give a remedy in damages against the covenantor in case of failure of title, and which were available in connection with leasehold, as well as freehold, estates, and warranty was finally abolished by statute in England in the nineteenth century.64
In this country, settled after the common-law warranty had lost, to a considerable extent, its importance in England, that method of securing the grantee against loss from failure of title was never, to any extent, utilized, but the law of personal covenants for title has been developed and extended to a greater extent even than in England, where the particularity with which intending purchasers examine the title has rendered them comparatively superfluous.
61. See Rawle, Covenants, c. 1, where the nature of warranty at common law is clearly stated. See, also, 1 Smith, Lead. Cas. Bq. (8th Ed.) 213, American notes to Sipencer's Case.
62. Rawle, Covenants, Sec.Sec. 12,
113; 1 Smith, Lead. Cas. 214.
63. Pincombe v. Rudge, Hob. 3g; Williams v. Burrell, 1 C B. 402.
64. See Rawle, Covenants, Sec.Sec. 9-14; 8 Am & Eng. Encyc. Law (2nd Ed.) 58, 78.
By statute in some states, certain covenants for title are implied from the use of particular operative words in a conveyance, usually "grant, bargain, and sell,"05 and occasionally a covenant in form one of warranty merely is by statute declared to imply certain other covenants for title.66 In some states, on the other hand, it is enacted that no covenants shall be implied in a conveyance of real estate.67
The covenants of title considered in the following sections are "general" covenants, that is, they are in terms sufficient to protect the covenantee against the claims of all persons whomsoever. Covenants may be, however, and frequently are, "special" in character, that is, they are so expressed as to afford protection against the acts of the covenantor only, or of persons claiming under him.68
A covenant for title, in the case of land conveyed by metes and bounds, is not broken by reason of a deficiency in the quantity stated to be conveyed thereby. The statement of the quantity is controlled by the description by metes and bounds, and the covenants are construed as referring to the land conveyed.69 The case is different however, when there is no description by metes and bounds, and there is a conveyance of a named quantity of land, a certain number of acres, for instance, in a particular locality.70
65. Stimson, Am. Stat. Law, Sec. 1501; Rawle, Covenants, Sec.Sec. 285, 286; Polak v. Mattson, 22 Idaho 727, 128 Pac. 89; Maitlen v. Maitlen, 44 Ind. App. 559, 89 N. E. 966; Faller v. Davis, 30 Okla. 56, Ann. Cas. 1913B, 1181, 118 Pac. 382; George A. Lowe Co. v. Simmons Warehouse Co., 39 Utah 395, Ann Cas. 1913E, 246, 117 Pac. 874.
66. See Mackintosh v. Stewart, 181 Ala. 328, 61 So. 956; Sherman v. Goodwin, 11 Ariz. 141, 89 Pac. 517; Crawford v. Mcdonald, 84 Ark. 415, 106 S. W. 206; Polak v. Mattson, 22 Idaho 727, 128 Pac. 89; Waldermeyer v. Loebig, 222 Mo. 540, 121 S. W. 75; Waslee v. Rossman, 231 Pa. 219, 80 Atl. 643.
67. 1 Stimson's Am. Stat. Law, Sec. 1500; Rawle, Covenants, Sec. 286. Ante, Sec. 49.
68. Rawle, Covenants, Sec.Sec. 28, 29, 126.
D. P. - 31
The grantee in a conveyance cannot assert that there is a breach of the grantor's covenant for title by reason of the fact that the title was, at the time of the conveyance, in himself and not in the grantor. The covenant extends only to the case of a title or right in a third person.71
The doctrine, so frequently asserted,72 that a title subsequently acquired by a grantor enures by operation of law to the person claiming under the conveyance, has been applied in connection with covenants for title, with the effect of wholly defeating the right of action on the covenant, or of mitigating the damages recoverable thereunder, usually to the extent of excluding all substantial damages.73 The covenantor has not ordinarily, however, been allowed to assert this
69. Rawle, Covenants, Sec. 297; Gulf Coal & Coke Co. v. Mus-grove, 195 Ala. 219, 70 So. 179; Ryan v. Batchelor, 95 Ark. 375,
129 S. W. 787; Littleton v. Green,
130 Ga. 692, 61 S. E. 593; Burton v. Cowles' Admx, 156 Ky. 100, 160 S. W. 782; Mann v. Pearson, 2 Johns. (N. Y.) 37; Mcarthur v. Morris, 84 N. C. 405; Mosteller v. Astin, 61 Tex. Civ. App. 455, 129 S. W. 1136; Brown v. Yoakum, - Tex. Civ. App. - , 170 S. W. 803. But see Morris v. Owens, 3 Strobh. (S. C.) 99.
70. Pecare v. Chouteau, 13 Mo. 527; Smith v. Mcglothlin, -Tex. Civ. App. - , 153 S. W. 655.
71. Beebe v. Swartout, 3 Gil.
(111.) 162; Smiley v. Fries, 104 111. 416; Harrigan v. Rice, 39 Minn. 49, 38 N. W. 765; Fitch v. Baldwin, 17 Johns. (N. Y.) 161; Eames v. Armstrong, 146 N. C. 1, 125 Am. St. Rep. 436, 59 S. E. 165; Holt v. Ruleau, 83 Vt. 151, 74 Atl. 1005.
72. Post. Sec. 545.
73. Sayre v. Sheffield Land, Iron & Coal Co., 106 Ala. 440, 18 So. 101; King v. Gilson's Adm'x, 32 111. 348; Baxter v. Bradbury, 20 Me. 260; Hartford Ore Co. v. Miller, 41 Conn. 112; Southern Plantations Co. v. Kennedy Heading Co., 104 Miss. 131, 61 So. 166; Reese v. Smith, 12 Mo. 344; Morrison v. Underwood, 20 N. H. 269; Farmers' Bank v. Glenn, 68 N. C. 35; Cross v.
After acquired title by way of defense or in mitigation of damages, if the title was not acquired by him until after eviction,74 or until after the action on the covenant was commenced.75 The propriety of allowing a vendor, in any case, after having purported to convey when he had no title, to force upon an unwilling vendee a title subsequently acquired by him, after the property has deteriorated in value, has been strongly questioned.76