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 that the covenantee shall quietly enjoy the premises conveyed without disturbance, and the covenant to warrant and defend the premises, termed, respectively, the covenants for "quiet enjoyment" and "of warranty," are substantially similar in effect, except when some variation is introduced by the particular language used.43
The modern covenant of warranty, by which one covenants that he will warrant and defend the premises unto the grantee against all lawful claims by third persons, is entirely different from the old common law warranty, and is merely a personal covenant, a breach of which entitles one to the recovery of damages. It is not recognized in England, and appears to have arisen in this country from the fact that the early conveyances contained both personal covenants and a clause in the form of the common law warranty, and that this latter, as it was no longer utilized as a real covenant, became incorporated in the clause containing the personal covenants, and so became itself a covenant of that character.44
42. Ante, Sec. 438, note 93.
42a. Gill v. Ferrin. 71 N. H. 421, 52 Atl. 558; Johnston v. Markle Paper Co., 153 Pa. 195, 25 Atl. 560, 885; Johnson v. Elmen, 94 Tex. 168, 52 L. R. A. 162, 86 Am. St. Rep. 845, 59 S. W. 253.
42b. Ante, Sec. 438, note 92.
43. Rawle, Covenants, Sec. 114; Copeland v. Mcadory, 100 Ala. 553, 13 So. 545; Mitchell v. Warner, 5 Conn. 497; Bostwick v. Williams, 36 111. 65, 85 Am. Dec. 385; Kramer v. Carter, 136 Mass. 504.
44. Rawle, Covenants, Sec.Sec. 110-114.
As in the case of a covenant against incumbrances,45 the covenantee's knowledge of the defect in the title of the covenantor at the time of the making of the covenant of warranty is ordinarily no defense to an action thereon.46 Occasionally, however, his knowledge of the defect has, in the particular case, and in view of the character of the defect, been regarded as calling for a construction of the covenant as not covering the defect.47
- Construction of covenant. A covenant for quiet enjoyment or of warranty, like other covenants, is to be construed with reference to the interest in the land which the instrument purports to convey. So if it purports to convey an estate less than a fee simple,48 or an undivided interest only,49 the presence of the covenant does not impose a personal liability by reason of a lack of title in excess of such interest, or operate to enlarge the interest conveyed. On a somewhat similar theory, if the conveyance is in terms of the property as being subject to a mortgage, an "equity of redemption," as it is frequently termed, the covenant is construed accordingly, and the mortgage is not re- • garded as within the scope of the covenant.50
45. Ante, Sec. 452, note 38.
46. Mackintosh v. Stewart, 181 Ala. 328, 61 So. 956; Flynn v. White Breast Coal etc. Co., 72 Iowa, 738, 32 N. W. 471; Cornelius v. Kinnard, 157 Ky. 50, 162 S. W. 524; Downs v. Nally, 161 Ky. 432, 170 S. W. 1193; Contra. Janes v. Jenkins, 34 Md. 1, 6 Am. Rep. 300.
47. See Mcandrews & Forbes Co. v. Camden Nat. Bk., 87 N. J. L. 231, 94 Atl. 627; Hymes v. Estey, 166 N. Y. 505, 15 Am. St. Rep. 421, 22 N. E. 1087 (highway).
48. Adams v. Ross, 30 N. J. L. 505, 82 Am. Dec. 237. See
Snell v. Young, 3 Ired. L. (25 N. Car.) 379; Rawle, Covenants, Sec. 298.
49. Emeric v. Alvarado, 90 Cal. 444, 27 Pac. 356; Coster v. Monroe Mfg. Co., 2 N. J. Eq. 467; Lamb v. Wakefield, 1 Sawy. (U. S.) 251.
50. Miller v. De Graffenried, 43 Colo. 306, 15 Ann. Cas. 981. 95 Pac. 941; Drury v. Holdcn, 121 111. 130; Freeman v. Baxter, 55 Me. 508; Hopper v. Smyser, 90 Md. 363, 45 Atl. 206; Brown v. South Boston Sav. Bk., 148 Mass. 300, 19 N. E. 382; Shafer v. Wi man, 47 Mich. 63, 10 N. W. 104.
In a number of cases, when the conveyance was in terms merely of the grantor's right title or interest, the covenant has been construed as referring merely to such right, title or interest, so as to render the covenant almost if not entirely nugatory for the purpose of protecting the grantee.51 The mere fact, however, that a conveyance, which in terms conveys the land, recites an intention to dispose of all the grantor's right title and interest, would not ordinarily be given such an effect.52
51. Reynolds v. Shaver, 59 Ark. 299, 43 Am. St. Rep. 36, 27 S. W. 78; Mcnear v. Mccomber, 18 Iowa, 12; Ballard v. Child, 46 Me. 152; White & Corbitt v. Stewart, 131 Ga. 460, 62 S. E. 590; Combs v. Combs, 130 Ky. 827, 114 S. W. 334; Sweet v. Brown, 12 Mete. (Mass.) 175, 45 Am. Dec. 243; Coble v. Barringer, 171 N. Car. 445, 88 S. E. 518; Hull v. Hull, 35 W. Va. 155, 13 S. E. 49, 29 Am. St. Rep. 800. But see Bayley v. Mccoy, 8 Oreg. 259; Peck v. Hensley, 20 Tex. 67.
52. Locke v. White, 89 Ind. 492; Hubbard v. Apthorp, 3 Cush. (Mass.) 419; Steiner v. Baugh-man, 12 Pa. 106; Mills v. Catlin, 22 Vt. 98.
53. That an outstanding lease involves a breach, see Bass v. Starnes, 108 Ark. 357, 158 S. W. 136; Van Wagner v. Van Nos-trand, 19 Iowa, 422; Burchfleld v. Brinkman, 92 Kan. 377, 140 Pac. 894; Beutel v. American Machine Co., 144 Ky. 57, 137 S. W. 799; Fortescue v. Columbia Real Estate Co., 75 N. J. L. 272, 67
Atl. 1024; Rickert v. Snyder, 9 Wend. (N. Y.) 415; Hampton Park Terrace v. Sottile, 102 S. C. 372, 86 S. E. 1066 (although known to the covenantee).
That an outstanding lease does not involve a breach, see Kellum v Berkshire Life Ins. Co., 101 Ind. 455; Hammond v. Jones, 41 Ind. App. 32, 83 N. E. 257; Knerb v. Beardsley, 139 Mo. App. 565, 123 S. W. 545 (grantee consenting to take lessee as his tenant); Baldwin v. Smith (Tex. Civ. App.), 119 S. W. Ill (if known to covenantee). See Simons v. Diamond Match Co., 159 Mich. 241, 123 N. W. 1132.
54. That a railway right of way involves a breach, see Flynn v. White Breast Coal etc. Co., 72 Iowa, 738, 32 N. W. 471; Schwartz v. Black, 131 Tenn. 360, 174 S. W. 1146 (nominal damages).