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 .
The covenant by the grantor that he is lawfully seised of the premises, called the "covenant of or for seisin," has different effects in different juridictions. "Seisin" originally, as before stated, meant the possession of land by one having or claiming a freehold estate therein, either by himself or by another in his behalf.77 This meaning of "seisin" has been adopted in two or three states in determining the effect of the covenant, and the covenant is there regarded as a declaration by the grantor that lie is in possession, claiming such an estate as he undertakes to convey, ordinarily a fee simple estate, so that the fact that his possession is tortious does not
74. Burton v. Reeds, 20 Ind. 87; Bethell v. Bethell, 92 Ind. 318; Blanohard v. Ellis, 1 Gray (Mass.) 193; Resser v. Carney, 52 Minn. 397, 54 N. W. 89; Southern Plantations Co. v. Kennedy Heading Co., 104 Miss. 131, 61 So. 166; Jones v. Gallagher, 54 Okla. 611, 154 Pac. 552; Nichol v. Alexander, 28 Wis. 128; Mc-innis v. Lyman, 62 Wis. 191, 22 N. W. 405.
75. Resser v. Carney, 52 Minn.
397, 54 N. W. 89'; Southern Plantations Co. v. Kennedy Heading Co., 104 Miss. 131, 61 So. 166; Morris v. Phelps, 5 Johns. (N. Y.) 49, 4 Am. Dec. 323; Tucker v. Clark, 2 Sandf. Ch. 96; Rombough v. Koons, 6 Wash. 558, 34 Pac. 135; Mclennan v. Prentice, 85 Wis. 427, 55 N. W. 764; Contra. Boulter v. Hamilton, 15 Up. Can. C. P. 125; Looney v. Reeves, 5 Kan. App. 279, 48 Pac. 606.
76. See Rawle, Covenants, Sec.Sec. 179-182; Sedgwick, Damages (9th Ed.) Sec. 977.
77. Ante, Sec. 14.
Involve a breach of the covenant, though there is a breach if another is in adverse possession.78 The covenant, though thus limited in effect, may nevertheless be of great advantage to the grantee in any state which still recognizes the doctrine that a conveyance of land in the adverse possession of another is void;79 and this construction of the covenant presumably owes its origin to the recognition by the courts of the probability that it was intended to secure the grantee against the possible failure of the conveyance for this cause.80
In a majority of the states, as in England, the above view of the covenant of seisin has not been accepted, but if has been construed with reference. to the meaning which the words "seisin" and "seised" acquired after the Statute of Uses81 as equivalent to a declaration that the grantor has an estate, of the quantum which he undertakes to convey, in the whole land covered by the conveyance.82 Accordingly the covenant has been held to be broken when the grantor
78. Stearns v. Jewell, 27 Colo. App. 390, 149 Pac. 846; Cush-man v. Blanchard, 2 Me. 268, 11 Am. Dec. 76; Wilson v. Widen-ham, 51 Me. 566; Marston v. Hobbs, 2 Mass. 439. 3 Am. Dec. 61; Raymond v. Raymond, 10 Cush. (Mass.) 134; Backus' Adm'rs v. Mccoy, 3 Ohio, 211, 17 Am. Dec. 585; Stambaugh v. Smith, 23 Ohio St. 584; Wetzell v. Richcreek, 53 Ohio St. 62, 40 N. E. 1004. See also, Bottorf v. Smith, 7 Ind. 673; Axtel v. Chase. 77 Ind. 74; Scott v. Twiss, 4 Neb. 133; Webb v. Wheeler, 80 Neb. 438, 17 L. R. A. (N. S.) 1178, 114 N. W. 636.
79. See post, Sec. 590.
80. Rawle, Covenants, Sec.Sec. 47-54.
81. Ante, Sec. 14.
82. Mccormick v. Marcy, 165 Cal. 386. 132 Pac. 449; Lockwood v. Sturdevant, 6 Conn. 385; Efta v. Swanson, 115 Minn. 373, 132 N. W. 335; Real v. Hollister, 20 Neb. 112, 29 N. W. 189; Parker v. Brown, 15 N. H. 186; Greenby v. Wilcocks, 2 Johns. (N. Y.) 1, 3 Am. Dec. 379; Fishel v. Browning, 145 N. Car. 71, 58 S. E. 759; Joiner v. Ardmore Loan & Trust Co., 33 Okla. 266, 124 Pac. 1073; Cobb v. Klosterman, 58 Ore. 211, 114 Pac. 96; Pringle v. Witten's Ex'rs, 1 Bay (S. C.) 256. 1 Am. Dec. 612; Woods v. North, 6 Humph. (Tenn.) 309, 44 Am. Dec. 312; Wick v. Rea, 54 Wash. 424, 103 Pac. 462. It is "an assurance to the purchaser that the grantor has the very estate bad no title to the land, that is, no rightful estate therein,83 and likewise when one tenant in common purported to convey an estate in severalty in the land.84 It has also been regarded as broken by the fact that things annexed to the premises are subject to a right of removal in a third person,85 and by the fact that rights properly appurtenant to the land, or which purport to be conveyed therewith, such as a right of flowage, are not vested in the grantor so as to pass with the land.86 The covenant is not broken by the existence of a lien on the land,87 or of a right of use in a third person or in the public.88
"Whether, in states in which an outstanding title is regarded as involving a breach,89 apart from any in quantity and quality which he purports to convey." Howell v. Richards, 11 East. 641, per Lord Ellenborough.
83. Anderson v. Knox, 20 Ala. 156; Abbott v. Rowan, 33 Ark. 593; Mccormick v. Marcy, 165 Cal. 386, 132 Pac. 44; Zent v. Picken, 54 Iowa, 535, 6 N. W. 750; Allen v. Allen, 48 Minn. 462, 51 N. W. 473; Cockrell v. Proctor, 65 Mo. 41; Arnold v. Joines, 50 Okla. 4, 150 Pac. 130.
84. Hartford Ore Co. v. Miller, 41 Conn. 112; Hencke v. Johnson, 62 Iowa, 555, 17 N. W. 766; Sedgwick v. Hollenback, 7 Johns. (N. Y.) 376; Downer's Adm'rs v. Smith, 33 Vt. 464.
85. Van Wagner v. Van Nos-trand, 19 Iowa, 427; Mott v. Palmer, 1 N. Y. 564; Herzog v. Marx, 202 N. Y. 94 N. E. 1063.
86. Seyfried v. Knoblauch, 44 Colo. 86, 96 Pac. 993; Traster v. Nelson's Adm'r, 29 Ind. 96; Ballard v. Child, 34 Me. 355; Adams v. Conover, 87 N. Y. 422, 41 Am. Rep. 381; Walker v.
Wilson, 13 Wis. 522.
In Clark v. Conroe, 38 Vt. 469, it was held that the fact that a third person had been given the right to divert the water from a spring on the premises involved a breach of the covenant, upon the somewhat doubtful ground that this involved the grant to another of a part of the land itself.
87. Fitzhugh v. Croghan, 2 J. J. Marsh (Ky.) 429, 19 Am. Dec. 139; Sedgwick v. Hollenback, 7 Johns. (N. Y.) 376; Zerfing v. Seelig, 14 S. Dak. 303, 85 N. W. 585 (taxes).
88. Moore v. Johnston, 87 Ala. 220, 6 So. 50; Douglass v. Thomas, 103 Ind. 187, 2 N. E. 562; Ginn v. Hancock, 31 Me. 42; Kellogg v. Malta, 50 Mo. 496, 11 Am. Rep. 426; Blondeau v. Sheridan, 81 Mo. 545; Contra, Haynie v. American Trust Invest. Co., (Tenn. Ch.), 39 S. W. 860; Perry v. Williamson, (Tenn. Ch.), 47 S. W. 189.
89. Ante, this section, note 82.
Question of the right to convey land in another's adverse possession, the mere fact that the land is in another's possession constitutes a breach of the covenant does not clearly appear.90 There is a breach, it seems evident, if the adverse possession has already continued for such a length of time as to give title.91
That the grantor had a life estate merely in the land has been held to involve a breach of the covenant for seisin,92 but in each of the cases to this effect the covenant was in express terms for seisin in fee simple. That his estate in fee simple was subject to a life estate in another has also been regarded as involving a breach.93 An outstanding inchoate right of dower does not involve a breach.94
Whether an outstanding term of years created by lease involves a breach of the covenant is a matter upon which the decisions, few in number, are not entirely in accord.95 The solution of the question in any particular case may depend, it has been suggested, to some extent at least, upon the surrounding circumstances, as showing the intention of the parties in this regard.96
90. See Rawle, Covenants, Sec. 54, note. That it is a breach appears to be asserted in Lindsay v. Veasy, 62 Ala. 421; Mackintosh v. Stewart, 181 Ala. 328, 61 So. 956; Fitzhugh v. Croghan, 2 J. J. Marsh (Ky.) 430, 19 Am. Dec. 139; Thomas v. Perry, Peters C. C. 49.
91. Wilson v. Forbes, 2 Dev. (N. Car.) 30. See Larson v. Goettl, 103 Minn. 272, 114 N. W. 840, commented on in 21 Harv. Law Rev. 628.
92. Frazer v. Board of Supervisors, 74 111. 282; Lockwood v. Sturdevant, 6 Conn. 373; Tanner v. Livingtone, 12 Wend. (N. Y.) 83.
93. Mills v. Catlin, 22 Vt. 106.
94. Fitzhugh v. Croghan, 2 J.
J. Marsh (Ky.) 429, 19 Am. Dec. 139; Whisler v. Hicks, 5 Blackf. (Ind.) 100, 33 Am. Dec. 454; Kuntzman v. Smith, 77 N. J. Eq. 30, 75 Atl. 1009; Lewis v. Lewis, 5 Rich. Law (S. Car.) 12; Building, Light & Water Co. v. Fray, 96 Va. 559, 32 S. E. 58; Nor a right of dower consummate before assignment of dower. Fishel v. Browning, 145 N. C. 71, 58 S. E. 759.
95. That it is not within the covenant, see Lindley v. Dakin, 13 Ind. 389; Kellum v. Berkshire Life Ins. Co., 101 Ind. 455. That it is, see Langenberg v. Herr Dry Goods Co., 74 Mo. App. 12.
96. See Rawle, Covenants, Sec. 58, note.