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agreement of the ancestor or testator, to the extent of the lands descended or devised. The statutes have further declared, that no covenants shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not. These provisions leave the indemnity of the purchaser for failure of title, in cases free from fraud, to rest upon the express covenants in the deed: and they have wisely reduced the law on this head to certainty and precision, and dismissed all the learning of warranties which abounds in the old books, and was distinguished for its abstruseness and subtle distinctions. It occupies a very large space in the commentaries of Lord Coke, and in the notes of Mr. Butler; and there was no part of the English law to which the ancient writers had more frequent recourse, to explain and illustrate their legal doctrines. Lord Coke declared "the learning of warran ties to be one of the most curious and cunning learnings of the law;" but it is now admitted, by Mr. Butler, to have become, even in England, in most respects, a matter of speculation, rather than of use. The ancient remedy on the warrantia charte, had, however, this valuable incident, when the warrantor was vouched, and judgment passed against the tenant, the latter obtained judgment simultaneously against the warrantor, to recover other lands of equal value. This was the consolidation of the original action with the remedy over, without the expense and delay of a cross suit.

The remedy by the ancient warranty never had, as I presume, any existence in any part of the United States, and personal covenantshare superseded the old warranty. The remedy is by an action of covenant against the grantor, or his real or personal representatives, to recover a compensation in damages for the land lost upon eviction for

a N. Y. Revised Statutes, vol. i. sec. 140.

failure of title. The usual personal covenants inserted in a conveyance of the fee, are, 1. That the grantor-is-law- fully seised; 2. That he has good right to convey 3. That the land is free from incumbrances; 4. That the grantee shall quietly enjoy; 5. That the grantor will warrant and defend the title against all lawful claims. The covenants of seisin, and of a right to convey, and against incumbrances, are personal covenants, not running with the land, or passing to the assignee; for, if not true, there is a breach of them as soon as the deed is executed, and they become choses in action, which are not technically assignable. But the covenant of warranty, and the covenant for quiet enjoyment, are prospective, and an eviction is necessary to constitute a breach of them. They are, therefore, in the nature of real covenants, and they run with the land conveyed, and descend to heirs, and vest in assignees. The distinction taken in the American cases is supported by the general current of English authorities, which assume the principle that covenant does not lie by an assignee, for a breach done before his time. On the other hand, it was recently decided by the K. B., in Kingdon v. Notile, that a covenant of seisin did run with the land, and the assignee might sue, on the ground that want of seisin is a continual breach. The reason assigned for this last decision is too refined to be sound. The breach is single, entire, and perfect, in the first instance. It is, however, to be regretted, that the technical scruple that

Booth v. Stark, 1 Conn.
Withy v. Mumford, 5

a Greenby v. Wilcocks, 2 Johns. Rep. 1. Rep. 244. Mitchell v. Warner, 5 ibid. 497. Cowen's Rep. 137. Birney v. Hann, 3 Marshall's Rep. 324. Parsons, Ch. J. in Marston v. Hobbs, 2 Mass. Rep. 439. Bickford v. Page, ibid. 455. Chapman v. Holmes, 5 Halsted's Rep. 20.

b Lewis v. Ridge, Cro. E. 863. Comyn's Dig. tit. Covenant, B. 3. Andrew v. Pearce, 4 Bos. & Pull. 158.

4 Maul, & Selw, 53.

a chose in action was not assignable, does necessarily pre vent the assignee from availing himself of any, or all of the covenants. He is the most interested, and the most fit person to claim the indemnity secured by them, for the compensation belongs to him, as the last purchaser, and the first sufferer.

The general covenant that the grantor will warrant and defend the title, (and which is usually the concluding and sweeping covenant in a deed,) is also a personal covenant, binding on the personal representatives of the covenante and it is not a covenant real, in the sense of the old feudal law, confining the remedy to voucher, or warrantia charte. The ancient remedy is inadequate and inexpedient, and has become entirely obsolete. The distinction between the covenants that are in gross, and covenants that run with the land, would seem to rest principally on this ground. that to make a covenant run with the land, there must be a privity of estate between the covenanting parties. A covenant to pay rent, or to produce title deeds, or for re newal, are covenants of the latter character, and they run with the land. All covenants of title run with the land, with the exception of those that are broken before the land

passes.

In Pennsylvania, Delaware, and Missouri, it is declared by statute, that the words grant, bargain and sell, shall amount to a covenant that the grantor was seised of an estate in fee, freed from incumbrances done or suffered by him, and for quiet enjoyment as against his acts. But, in Grantz v. Ewalt, it was adjudged, that those words in the

a Parsons, Ch. J. in Gore v. Brazier, 3 Mass. Rep. 544, 545, and in Marston v. Hobbs, 2 ibid. 438. Townsend v. Morris, 6 Cowen's Rep. 123. and Tilghman, Ch. J. in Bender v. Rep. 442.

b 1 Powell on Mortgages, 187. e2 Binney's Rep. 95.

Fromberger,

12 East's Rep. 469.

4 Dall

Pennsylvania statute of 1715, (and the decision will equally apply to the same statutory language in the other two states,) did not amount to a general warranty, but merely to a covenant that the grantor had not done any act, nor created any incumbrance, whereby the estate might be defeated. Upon this construction, the words of the statute are devested of all dangerous tendency, and they amount to no more than did the provision in the English statute of 6 Anne, c. 35. sec. 30. upon the same words. It may not be very inconvenient that those granting words should imply a covenant against the secret acts of the grantor; but beyond that point there is great danger of imposition upon the ignorant, and the unwary, if any covenant be implied, that it is not stipulated in clear and precise terms. In New-York, it was decided, in Frost v. Raymond," and proved by an examination of the authorities, that the words grant, bargain, sell, alien and confirm,” did not imply a covenant of title in a conveyance in fee, though the word grant," or the word "demise,” would imply a covenant of title in a lease for years. The word " give," it was also shown, in that case, would amount to an implied warranty during the life of the feoffor. But this doctrine, though deemed sound and applicable in those states which continue to be governed on this point by the common law, has ceased to have any operation in New-York, under the provisions in the revised statutes. In North Carolina, the words "give, grant, bargain, sell," &c. have been denied to imply any warranty of title; and this is the conclusión which sound policy would dictate. To imply covenants of

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a 2 Caines' Rep. 188.

The case of Grannis v. Clark, 8 Cowen's Rep. 36. is to the same effect, relative to the words grant and demise; and in an action on those covenants, it is not necessary to aver an eviction.

Prickets v. Dickens, 1 Murph. 343. Powell v. Lyles, ibid. 348.

warranty from the granting words in a deed, is making those words operate very often as a trap to the unwary.

The measure of damages, in actions on these personal covenants, is regulated, in some degree, by the rule on the ancient warranty. At common law, upon voucher, or upon the writ of warrantia charte, the demandant recovered of the warrantor, or heir, other lands, of equal value with the lands from which the feoffee was evicted. The value was computed as it existed when the warranty was made. so that, though the land had afterwards became of increased value, by the discovery of a mine, or by buildings, or otherwise, yet the warrantor was not to render in value. according to the then state of things, but as the land was when he made the warranty. And when personal covenants were introduced, as a substitute for the remedy on the voucher and warranty, the established measure of compensation was not varied or affected. The buyer on the covenant of seisin, recovers back the consideration money and interest, and no more. The interest is to countervail the claim for mesne profits, to which the grantee is liable, and is, and ought to be, commensurate in point of time with the legal claim to mesne profits. The grantor has no concern with the subsequent rise or fall of the land by accidental circumstances, or with the beneficial improvements made by the purchaser, who cannot recover any damages, either for the improvements or the increased value. But on the covenant of warranty, the measure of damages, in Massachusetts, is the value of the land at the

a Bracton, De Warrantia, lib. 5. ch. 13. sec. 3. Bro. tit. Voucher, pl. 69. Ibid. tit. Recouver in Value, pl. 59. Year Book, 30 Edw. III. 14. b. Ibid. 19 Hen. VI. 46. a. 61. a. Ballet v. Ballet, Godb. 151. b Staats v. Ten Eyck, 3 Caines' Rep. 111. Pitcher v. Livingston 4 Johns. Rep. 1. Bennett v. Jenkins, 13 ibid. 50. Marston v. Hobbs, 2 Mass. Rep. 433. Caswell v. Wendell, 4 ibid. 108. Bender 1. Fromberger, 4 Dol. Rep. 441.

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