freehold as pass on a conveyance of it;1 or if there was a tax deed outstanding against it.2

But the covenant is not broken by the existence upon the land of easements or encumbrances not affecting the technical seisin; as, for example, a railroad; or a public highway; or an outstanding mortgage; or a judgment;" or a right of dower; or of a right to erect a wall on the granted premises; or by the existence of a subsequent written contract from a former owner for the conveyance of the legal estate to another person than the grantee; or by proof that the covenantor had no title in fee-simple." The burden of proof in an action for breach of covenant of seisin is upon the defendant who answers that he was well seised.12 Chancery will grant relief to a defrauded vendee upon a covenant of seisin in the deed if the vendor is utterly insolvent.13

10

§ 2297. Covenant of Right to Convey.-The covenant for right to convey is synonymous with the covenant of seisin, and the same fact, i. e., the seisin of the grantor, which will support the latter will support the former." Such a covenant is also-like the covenant for seisin

1 Mott v. Palmer, 1 N. Y. 572; West v. Stewart, 7 Pa. St. 122; Burke v. Nichols, 1 Abb. App. 260; Tift v. Horton, 53 N. Y. 381; 13 Am. Rep. 537; Ritchmyer v. Morse, 3 Keyes, 349; 37 How. Pr. 388; Loughran v. Ross, 45 N. Y. 792; 6 Am. Rep. 173.

2 Vorhis v. Forsythe, 4 Biss.

409.

3 Reasoner v. Edmundson, 5 Ind. 394; Vaughn v. Stuzaker, 16 Ind. 340; Stockwell v. Couillard, 129 Mass. 231; Lewis v. Jones, 1 Pa. St. 336; 44 Am. Dec. 138.

Kellogg v. Malin, 50 Mo. 496; 11 Am. Rep. 426; Smith v. Hughes, 50 Wis. 620.

Whitbeck v. Cooke, 15 Johns. 483; 8 Am. Dec. 272; Vaughn v. Stuzaker, 16 Ind. 340.

broken at the time of the conveyance, and cannot be taken advantage of by an heir or assignee.1

§ 2298. Covenant against Encumbrances.-The covenant against encumbrances is-like that of seisin and of title-broken as soon as made, and the breach cannot be taken advantage of by an assignee. A warranty against encumbrances was not implied at common law from the use of the words "grant, bargain, and sell" in a conveyance.3 An action for breach of the covenant against encumbrances is barred by the subsequent discharge in bankruptcy of the covenantor. It is no defense that the covenantee knew of the encumbrance at the time of the conveyance.5

It has been laid down that "every right to and interest in the land granted, to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance, is to be deemed in law an encumbrance." An actual eviction is not essential."

The following have been held to be encumbrances within the covenant against encumbrances, and therefore a breach of that covenant, viz.: An outstanding mortgage, unless the premises are declared to be subject thereto; a

3 Gee v. Pharr, 5 Ala. 586; 39 Am. Dec. 339.

Reed v. Pierce, 36 Me. 455; 58 Am.

1 Chapman v. Holmes, 11 N. J. L. 20; Hamilton v. Wilson, 4 Johns. 72; 4 Am. Dec. 253; Swasey v. Brooks, 30 Vt. 692; Logan ". Moulder, 1 Ark. 313; Dec. 761. 33 Am. Dec. 339. 5 Contra in Illinois: Snyder v. v. Lane, 10 Ind. 424; Hovey Richard v. Brent, 59 Ill. 38; 14 Am. v. Newton, 7 Pick. 29; Funk v. Voneida, Rep. 1. 11 Serg. & R, 110; 14 Am. Dec. 617; Beach v. Miller, 51 Ill. 206; 2 Am. Rep. 290. Contra, Desvergers v. Willis, 56 Ga. 515; 2 Am. Rep. 56.

2

Clark v. Swift, 3 Met. 390; Logan . Moulder, 1 Ark. 313; 33 Am. Dec. 338; Funk v. Voneida, 11 Serg. & R. 110; 14 Am. Dec. 617; Andrews v. Dawson, 17 N. H. 413; 43 Am. Dec. 606. Contra, Richard v. Bent, 59 Ill. 38; 14 Am. Rep. 1; Foote v. Burnet, 10 Ohio, 317; 36 Am. Dec. 90. An action on a covenant against encumbrances broken during the lifetime of the ancestors should be brought by the administrator, not the heir: Frink v. Bellis, 33 Ind. 135; 5 Am. Rep. 193.

Parson, C. J., in Prescott v. Trueman, 4 Mass. 627; 3 Am. Dec. 246.

Share v. Anderson, 7 Serg. &. R. 43; 10 Am. Dec. 421.

8 Reed v. Pierce, 36 Me. 455; 58 Am. Dec. 761; Freeman v. Foster, 55 Me. 508; Brooks v. Moody, 25 Ark. 452.

2

8

judgment;1 an attachment; a claim of dower; taxes;" municipal assessments; an outstanding lease; or a paramount title; or where the estate is subject to a covenant that no ardent spirits shall be sold thereon; or that a division fence shall be maintained; or subject to a restriction against building, except in a specified way." A right to an easement or servitude of any kind in the land in a third person is an encumbrance;" as, for example, a right to pass over the land and take water from a spring;12 or a right to cut and maintain a drain or other watercourse on the land; 13 or to cut trees; 14 or the right of way of a railroad over the land; or a highway; 16 or a right to maintain a party-wall on the land;" or a right to flow land.18

1 Jenkins v. Hopkins, 8 Pick. 346. 2 Kelsey v. Remer, 43 Conn. 129; 21 Am. Rep. 638.

3 Porter v. Noyes, 2 Me. 22; 11 Am. Dec. 30; Walker v. Deaver, 79 Mo. 664; Bigelow v. Hubbard, 97 Mass. 195; McAlpin v. Woodruff, 11 Ohio St. 120; Runnells v. Webber, 59 Me. 488. But not a possibility of dower: Bostwick v. Williams, 36 Ill. 65; 85 Am. Dec. 385.

Fuller v. Jolette, 9 Biss. 296; Peters v. Myers, 22 Wis. 602; Long v. Moler, 5 Ohio St. 271; Rundell v. Lakey, 40 N. Y. 514; Ingalls v. Cooke, 21 Iowa, 560; Mitchell v. Pillsbury, 5 Wis. 407; Plowman v. Williams, 6 Lea, 268. And from the time they are assessed; not from the date of the delivery of the tax bill: Cochran v. Guild, 106 Mass. 29; 8 Am. Rep. 296; Rundell v. Lakey, 40 N. Y. 513. Contra, Kern v. Towsley, 45 Barb. 150.

The liability to assessments for the opening of a street was held to be a breach of the covenant against encumbrances in a deed executed after the street was opened, though before any assessments were made: Fagan v. Cadmus, 46 N. J. L. 441; Cadmus v. Fagan, 47 N. J. L. 549.

Grice v. Scarborough, 2 Spear, 649; 43 Am. Dec. 391; Batchelder v. Sturgis, 3 Cush. 201; Porter v. Bradley, 7 R. I. 538; Pease v. Christ, 31 N. Y. 141; Cross v. Noble, 67 Pa. St. 77; Fritz v. Persey, 31 Minn. 368.

15

'Prescott v. Trueman, 4 Mass. 627; 3 Am. Dec. 246.

s Hatcher v. Andrews, 5 Bush, 561. 9 Burbank v. Pillsbury, 48 N. H. 475; 97 Am. Dec. 633.

10 Roberts v. Levy, 3 Abb. Pr., N. S., 311.

11 Kutz v. McCune, 22 Wis. 628; 99 Am. Dec. 85; Brooks v. Curtis, 4 Lans. 283; 50 N. Y. 639; 10 Am. Rep. 545; McMullin v. Wooley, 2 Lans. 394; Giles v. Dugro, 1 Duer, 331; Lamb v. Danforth, 59 Me. 322; 8 Am. Rep. 426.

12 Harlow v. Thomas, 15 Pick. 68. 13 Smith v. Sprague, 40 Vt. 43; Prescott v. White, 21 Pick. 341; 32 Am. Dec. 266; Ginn v. Hancock, 31 Me. 42; Lamb v. Danforth, 59 Me. 323; 8 Am. Rep. 426.

14 Cathcart v. Bowman, 5 Pa. St. 319; Spurr v. Andrew, 6 Allen, 420.

15 Beach v. Miller, 51 Ill. 206; 2 Am. Rep. 290; Kellogg v. Malin, 50 Mo. 496; 11 Am. Rep. 426; Burk v. Hill, 48 Ind. 52; 17 Am. Rep. 731.

16 Burk v. Hill, 48 Ind. 52; 17 Am. Rep. 731; Pritchard v. Atkinson, 3 N. H. 335; Kellogg v. Ingersoll, 2 Mass. 101; Parish v. Whitney, 3 Gray, 516; Haynes v. Young, 36 Me. 557. Contra, Wilson v. Cochran, 46 Pa. St. 229; Whitbeck v. Cook, 15 Johns. 483; 8 Am. Dec. 272.

2

But the covenant is not broken by a tax or assessment the amount of which has not been ascertained or determined; or because a portion of the land conveyed had been illegally sold for taxes; nor by the existence of a public road over the land, known to the purchasers at the time of the purchase; nor by the right of a mill-owner to go upon the land and clear the channel of a stream;" or a mortgage which the covenantee is bound to pay;5 or a right to flow the land by a mill-pond; or by a condition that a city lot shall not be used as a cemetery; or by giving an encumbrance on the property after covenanting it to be free from encumbrance.

6

§ 2299. Covenant for Quiet Enjoyment.-By the covenant for quiet enjoyment, the grantor covenants that the grantee shall hold and enjoy the premises granted without any disturbance on the part of either himself or others. To constitute this covenant, no precise or technical language is required; any words which amount to or import an agreement to that effect are sufficient.10 Such a covenant which appears in the habendum clause, although not in its proper place, will be given full operation." The covenant extends to the possession, not to the title, of the land, and in order to establish a breach of the covenant, a lawful eviction in some form, either actual or constructive, must be shown." The grantee is bound to act

1 Dowdney v. Mayor, 54 N. Y. 186; Barlow v. St. Nicholas Bank, 63 N. Y. 397; 20 Am. Rep. 547.

Cummings v. Holt, 56 Vt. 384. Desvergers v. Willis, 56 Ga. 515; 21 Am. Rep. 289; Jordan v. Eve, 31 Gratt. 1; Cincinnati v. Brochman, 35 Ohio St. 289; Patton v. Quarrier, 18 W. Va. 447; Deacons v. Doyle, 75 Va. 258.

Prescott v. Williams, 5 Met. 429; 39 Am. Dec. 688.

Watts v. Wellman, 2 N. H. 458. Kutz v. McCune, 22 Wis. 628; 99 Am. Dec. 55.

Floyd v. Clark, 7 Abb. N. C. 136.

8 Foster v. Woodward, 141 Mass. 160.

10

Boone on Real Property, sec. 314. Midgett v. Brooks, 12 Ired. 145; 55 Am. Dec. 405.

11 Midgett v. Brooks, 12 Ired. 145; 55 Am. Dec. 405.

12 Whitbeck v. Cook, 15 Johns. 483; 8 Am. Dec. 272; Greenvault v. Davis, 4 Hill, 645; Moore v. Frankenfield, 25 Minn. 540; Rea v. Minkler, 5 Lans. 197; Fowler v. Poling, 6 Barb. 170; Russ v. Steele, 40 Vt. 315; Murphy v. Price, 48 Mo. 250; Pringle v. Witten, 1 Bay, 256; 1 Am. Dec. 612; Fitzhugh v. Croghan, 2 J. J. Marsh. 429; 19 Am. Dec. 139.

in good faith towards his grantor, and make the most of whatever title he has acquired; and if he yields without a contest or resistance, the burden rests upon him to show that the title was paramount, and that he yielded the possession to the pressure of that title. The covenant is broken whenever there has been an involuntary loss of possession by reason of the hostile assertion of an irresistible paramount title, whether that title be established by judgment or not. So the covenant is broken where the land is in the possession of a stranger under paramount title, who keeps out the grantee; or where the grantor himself enters tortiously, and without title; or where the title and possession is disturbed by a suit in equity;5 or where a lower owner, by virtue of a paramount right, raises his dam, and floods the land so conveyed, this is a breach of the covenant."

3

But the covenant is not broken where the disturbance extends only to a particular mode of enjoyment of the land, and not to the title or possession; nor by wrongful and unlawful evictions by third persons; nor under rights acquired subsequently to the conveyance; nor by the acts of the state or sovereign power.10

1 Moore v. Vail, 17 Ill. 190; Thomas v. Stickle, 32 Iowa, 76; Peck v. Hensley, 20 Tex. 678; Stone v. Hooker, 9 Cow. 157; Hunt v. Amidon, 4 Hill, 345; 40 Am. Dec. 283.

2 Clark v. Lineberger, 44 Ind. 223; McGary v. Hastings, 39 Cal. 360; 2 Am. Rep. 456; Stewart v. Drake, 9 N. J. L. 141; Cowdrey v. Coit, 44 N. Y. 382; 4 Am. Rep. 690; Smith v. Shepard, 15 Pick. 147; 25 Am. Dec. 432; Home Life Ins. Co. v. Sherman, 46 N. Y. 370. And see Upton v. Townsend, 17 Com. B. 30; Adams v. Conover, 22 Hun, 424.

3 Shattuck v. Lamb, 65 N. Y. 499; 22 Am. Rep. 656.

Sedgwick v. Hollenback, 7 Johns.

Martin v. Martin, 1 Dev. 413; Calthorp v. Heyton, 2 Mod. 54; An

drews v. McCoy, 8 Ala. 920; 42 Am. Dec. 669.

6 Scriver v. Smith, 100 N. Y. 471; 53 Am. Rep. 224.

Dennett v. Atherton, L. R. 7 Q. B. 326.

82 Greenl. Cruise, 764; Rantin v. Robertson, 2 Strob. 366; Ellis v. Welch, 6 Mass. 250; 4 Am. Dec. 122; Surget v. Arighi, 11 Smedes & M. 37; 49 Am. Dec. 46. The complicity of the covenantor in the violence used must be shown, to render him liable: Jones v. Worley, 21 La. Ann. 404; Dudley v. Folliott, 3 Term Rep. 584.

9 Ellis v. Welch, 6 Mass. 250; 4 Am. Dec. 122; Frost v. Ernst, 4 Whart. 85.

10 Frost v. Ernst, 4 Whart. 86; Osborn v. Nicholson, 13 Wall. 655; Ellis v. Welch, 6 Mass. 246; 4 Am. Dec. 122.