-

§ 2300. Covenant for Further Assurance. The covenant for further assurance binds the grantor to make such further assurances of the lands as the grantee shall lawfully and reasonably require.' Before the covenantee can bring his action for a breach, he must have drawn up such a one as called for, and notify the covenantor of it, and give him a reasonable time to examine it. The request for further assurance must be made within a reasonable time. Under such a covenant the grantor is bound to obtain the release of a mortgage.*

§ 2301. Covenant of Warranty. The covenant of warranty is an undertaking by the warrantor that on the failure of the title which the deed purports to convey, either for the whole estate or for a part only, he will make compensation in money for the loss sustained by such failure of title. A covenant to furnish a warranty deed means a deed with special warranty, and not a deed with general warranty and with covenant against encumbrances. A contract to give a good and sufficient warranty deed of a certain individual's interest in a piece of land does not require a warranty that such person's title is perfect. But it is not complied with by the mere giving of a warranty deed, where the grantor has no title or an imperfect title to the land. At common law, the words "grant, bargain, sell," etc., do not imply a warranty of title. But an express covenant of warranty in a deed does away with any implied covenant contained in the words "grant, bargain, and sell," the implied covenant

12 Greenl. Cruise, 767.

2 Miller v. Parsons, 9 Johns. 336.
3 Boone on Real Property, sec.

315.

Colby v. Osgood, 29 Barb. 339.

8 King v. Kerr, 5 Ohio, 154; 22 Am. Dec. 777.

6 Withers v. Baird, 7 Watts, 227; 32 Am. Dec. 754.

7 Babcock v. Wilson, 17 Me. 372; 35 Am. Dec. 263.

8 Everson v. Kirtland, 4 Paige, 628; 27 Am. Dec. 91.

9 Frost v. Raymond, 2 Caines, 188; 2 Am. Dec. 228; Rickets v. Dickens, 1 Murph. 348; 4 Am. Dec. 555; Allen v. Sayward, 5 Greenl. 227; 17 Am. Dec. 221.

being operative only where the parties have omitted to insert covenants in the instrument.1

Where the grantor acquires title after the conveyance with general warranty, the title thus acquired inures to the benefit of the grantee, and the grantee then has no right to elect whether or not to reject the title.2 The covenant of warranty is personal in that the covenantee is not confined to the lands of the covenantor for compensation in case of a breach. The duration of the warranty is co-extensive only with the estate to which it is annexed; and on a conveyance of an estate for life with warranty, the warranty becomes extinct on the death of the grantee. Where the grantor, before any breach of the covenant, becomes reinvested with the seisin which he conveyed, the covenant is extinguished. But where two convey with warranty, and the grantee reconveys to one of them with warranty, the first warranty is not extinguished."

Unlike the covenant for quiet enjoyment, the covenant of warranty goes to the title as well as to the possession." So the eviction, to be a breach of the covenant of warranty, must not only be of lawful right, but by paramount title.8 The mere existence of a paramount title in another is not a breach of the covenant of warranty; in order to such breach, there must be some disturbance of the grantee's possession.

1 Weems v. McCaughan, 7 Smedes & M. 422; 45 Am. Dec. 314.

2 Baxter v. Bradbury, 20 Me. 260; 37 Am. Dec. 49; Williams v. Grey, 3 Me. 207; 14 Am. Dec. 234.

33 Washburn on Real Property, sec. 660.

Rector v. Waugh, 17 Mo. 13; 57 Am. Dec. 251.

Brown v. Metz, 33 Ill. 339; 85 Am. Dec. 277.

6 Birney v. Hann, 3 A. K. Marsh. 322; 13 Am. Dec. 167.

Williams v. Wetherbee, 1 Aiken, 233; Patton v. Kennedy, 1 A. K.

An eviction by process or

Marsh. 389; 10 Am. Dec. 744; Fowler v. Poling, 6 Barb. 170.

8

Rindskopf v. Farmers' etc. Ins. Co., 58 Barb. 36; King v. Kerr, 5 Ohio, 154; 22 Am. Dec. 777; Fowler v. Poling, 6 Barb. 165; Kellogg v. Platt, 33 N. J. L. 328; Kenney v. Norton, 10 Heisk. 384; Emerson v. Proprietors, 1 Mass. 464; 2 Am. Dec. 34; Booker v. Bell, 3 Bibb, 173; 6 Am. Dec. 641.

9 Kent v. Welch, 7 Johns. 258; 5 Am. Dec. 266; Ferriss v. Harshea, I Mart. & Y. 48; 17 Am. Dec. 782; King v. Kerr, 5 Ohio, 154; 22 Am. Dec. 777;

judgment of law is not essential.' The party may voluntarily yield to a dispossession, without losing his remedy on the covenant, provided the title to which he yielded be good and paramount to that of his warrantor. But he does so at his own peril, and in a suit against his warrantor the burden of proof rests upon the plaintiff.3

The following are breaches of the covenant: An eviction by legal process under a prior mortgage,1 or under an unexpired term for years; or a judgment in ejectment without actual eviction; or a prevention of a legal entry by the grantee;' or the existence of an outstanding

Logan v. Moulder, 1 Ark. 313; 33 Am. Dec. 338; Hynson v. Dunn, 5 Ark. 395; 41 Am. Dec. 100; Scott v. Kirkendall, 88 Ill. 465; 30 Am. Rep. 562, the court saying: "The question is, whether there can be a recovery in an action of covenant for breach of covenant of warranty, in a case where the land concerned is and ever has been vacant and unoccupied, without showing more than an outstanding paramount title. The great current of authority is in favor of the negative of the proposition. It is common doctrine, and well established, generally, that the mere existence of a paramount legal title which has never been asserted cannot amount to a breach of this covenant. The covenantee or his assignee must be disturbed in the possession, actual or constructive; he must be evicted, or there be something equivalent thereto; and in the action the plaintiff must allege and prove an ouster or eviction by a paramount title. It is not necessary, however, that he should be evicted by legal process; it is enough that he has yielded the possession to the rightful owner; or the premises being vacant, that the rightful owner has taken possession: 3 Washburn on Real Property, 406; Sedgwick on Damages, 6th ed., *158; Greenvault v. Davis, 4 Hill, 643; St. John v. Palmer, 5 Hill, 599; Day v. Chism, 10 Wheat. 449; Marston v. Hobbs, 2 Mass. 433; 3 Am. Dec. 61; Sprague v. Baker, 17 Mass. 586; Jenkins v. Hopkins, 8 Pick. 346; Moore v. Vail, 17 Ill. 185; Matteson v. Vaughn, 38 Mich. 373.

And see note to Foote v. Burnet, 10 Ohio, 319, for a collection of cases as to what amounts to eviction. This covenant of warranty is regarded as, in effect, a covenant for quiet enjoyment, and can only be broken by something equivalent to an eviction or disturbance of possession by the grantee: 3 Washburn on Real Property, 398. What will be held as equivalent to eviction, authorities may differ concerning; but there is a general concurrence that something more than the mere existence of a paramount title is necessary to constitute a breach of the covenant of warranty.'

1 Greenvault v. Davis, 4 Hill, 643; Patton v. Kennedy, 1 A. K. Marsh. 389; 10 Am. Dec. 744; Hanson v. Buckner, 4 Dana, 251; 29 Am. Dec. 401.

2 Hamilton v. Cutts, 4 Mass. 352; 3 Am. Dec. 222; Mackey v. Collins, 2 Nott & Mc. 186; 10 Am. Dec. 586; Donnell v. Thompson, 10 Me. 170; 25 Am. Dec. 216.

3 Hamilton v. Cutts, 4 Mass. 352; 3 Am. Dec. 222; Smith v. Shepard, 15 Pick. 147; 25 Am. Dec. 432; Crance v. Collenbaugh, 47 Ind. 256; Dennis v. Heath, 11 Smedes & M. 206; 49 Am. Dec. 51.

6

Tufts v. Adams, 8 Pick. 547.
Rickert v. Snyder, 9 Wend. 416.

Drury v. Shumway, 1 D. Chip.
110; 1 Am. Dec. 704; Williams v.
Wetherbee, 1 Aiken, 233; Cummins v.
Kennedy, 3 Litt. 118; 14 Am. Dec. 45.

Caldwell v. Kirkpatrick, 6 Ala. 60; 41 Am. Dec. 36.

6

right of way over the whole or a part of the premises;1 or a recovery by a stranger of a permanent use of a part of the land as a private passage-way;2 or the impossibility of a grantee's obtaining possession of the land conveyed;3 or suffering taxes to remain unpaid after giving a warranty deed. But the covenant is not broken by the acts of mere strangers; or the opening of a highway over the land by the power of eminent domain; or by the existence of encumbrances known to the grantee at the time of sale, and which he agreed to pay off as a part of the consideration; or the entry of a decree against the grantee in the alternative, as "unless he pay," etc.; or by a personal decree for a sum in full of dower to be enforced by execution; or that the grantor held the land on a condition to erect a house thereon within a certain time."

10

§ 2302. Other Covenants.-A covenant to give a "lawful deed of conveyance" means a deed conveying a lawful or good title." A covenant to execute and deliver a good and sufficient deed in fee-simple with warranty of title not only means that a party will execute such a deed containing a warranty of title, but that he had the power to give such a deed as would carry with it an indefeasible title to the land conveyed.12 A tender of vendor's own deed without procuring his wife's relinquishment of dower is not a satisfaction of his covenant to make the vendee "a good and perfect deed." 13 A warranty of "indisputable and satisfactory title" by the grantor is satisfied if his title is

352; Brown v. Staples, 28 Me. 497; 48 Am. Dec. 504.

8 Kirkendall v. Keogh, 2 Ill. App. 492. Johnson v. Nyce, 17 Ohio, 66; 49 Am. Dec. 444.

10 Estabrook v. Smith, 6 Gray, 572; 66 Am. Dec. 445.

"Dearth v. Williamson, 2 Serg. & R. 498; 7 Am. Dec. 652.

12 Tarwater v. Davis, 7 Ark. 153; 44 Am. Dec. 534.

13 Greenwood v. Ligon, 10 Smedes & M. 615; 48 Am. Dec. 775.

good and valid.' A quitclaim deed is performance of contract to give good title if the vendor had the title. An agreement by a purchaser of land to assume and pay an encumbrance implies, not a covenant against liability, but at most a covenant of indemnity against damage resulting from a breach of the agreement. In a suit, therefore, damage must be proved. A person who covenants to convey as soon as he gets the title from another must show that he has attempted to attain that title. A warranty of the quantity of land conveyed cannot be proved by parol evidence.5 One accepting a deed in good faith which does not embrace the identical lands described in the covenant cannot afterwards dispute the same.

A sealed agreement, for a valuable consideration, not to make a will to the prejudice of the rights of the covenantor's heirs in his estate is valid." So is a covenant not to permit the owner of an adjoining tract of land to cut a ditch through the covenantor's premises. But where a land-owner granted to an oil transportation company the exclusive right of way and privilege of laying and maintaining tubing for transporting oil through a tract of two thousand acres, it was held invalid as an unreasonable restraint of trade.9

§ 2303. Covenants Running with the Land.- Covenants which "run with the land" are those which so concern the land itself that their burden or their benefits are capable of running with it; nants both the liability to to take advantage of them

and in the case of such coveperform them and the right passes to the assignee of the

Marshall v. Haney, 4 Md. 498; 59 Am. Dec. 92.

7 Taylor v. Mitchell, 87 Pa. St. 518; 30 Am. Rep. 383.

Jacobs v. Davis, 34 Md. 204.

9 West Virginia Trans. Co. v. Ohio Pipe Line Co., 22 W. Va. 600; 46 Am. Rep. 527.