66 1829. Amount paid by purchaser to fulfill or defend covenant -Extent of recovery. 1830. Amount paid by purchaser to fulfill or defend covenant 1831. Interest on amount paid by 1832. Taxes. 1833. Expenses, costs, counsel fees, 1834. Same subject continued— What included - Limitations of and exceptions to rule. 1835. Same subject concluded. 1837. Interest generally. 1839. Interest-Period of computa- etc., incurred by purchaser 1840. Evidence. § 1794. Covenants classified-Nature of.-In case of alienation by deed the clause of warranty was usually followed by covenants or conventions, which are clauses of agreement, whereby either party may stipulate for the truth of certain facts, or may bind himself to perform, or give something to the other." It might be a covenant real descending upon the heirs and obligating them to the extent of their assets by descent, or the covenantor might bind himself, and also his executors and administrators, whereby his personal as well as real assets became pledged for the performance. The most general covenants are: (1) That the grantor is well seized of the premises; (2) that he has good right and lawful authority to sell and convey the same; (3) that the premises are free from any incumbrance; (4) of quiet enjoyment and against persons lawfully claiming; and (5) the covenant of general warranty.1 Of these covenants, that of seisin, relates to 12 Blackstone's Com. (1 Cooley, | terruption, called the covenant for 4th ed. bottom p. 677), *304 and quiet enjoyment; fourthly, that such note. "These covenants were five in number: first, that the grantor was seized of the estate which he purported to convey, called the covenant for seisin; secondly, that he had a good right to convey it; thirdly, that the grantor should quietly possess and enjoy the premises without in-surance. There is no evidence that should be the case free and clear of all incumbrances, called the covenant against incumbrances; and fifthly, that such other assurances should be thereafter executed as might be necessary to perfect or confirm the title, called the covenant for further as 2 the title and a covenant of warranty applies to both the possession and the title. § 1795. Warranty-Recovery of other lands.-In Bacon's Abridgement it is said that "A warranty, concerning freeholds and inheritances, (a) is a covenant real annexed to lands or tenements, whereby a man and his heirs are bound to warrant the same, and either upon voucher, or by judgment in a writ of warrantia chartæ, to yield other lands and tenements to the value of those that shall be evicted by a former title, else it may be used by way of rebutter." It is declared in a seisin or for title and statutes, see id. pp. 64 et seq. " 3 Rickert v. Snyder, 9 Wend. (N. Y.) 415. General warranty applies to title not quantity. Burbridge v. Sadler, 46 W. Va. 39; 32 S. E. 1028. As to damages for breach of covenant of warranty, see Code, Ga. sec. 3804. 'Bacon's Abridg. 'Warranty." "A warrantie is a covenant reall annexed to lands or tenements, whereby a man and his heires are bound to warrant the same; and either upon voucher, or by judgment in a writ of warrantiæ cartæ to yeeld other lands and tenements (which in old bookes is called in excambio) to the value of those that shall bee evicted by a former title, or else may bee used by way of rebutter." 2 Coke's Litt. (Butler & Hargrave's ed. 1853), the covenant in such general use in this country, called 'the covenant of warranty' ever had a place in English conveyancing." Rawle Cov. for Title (5th ed.), secs. 13, 110 et seq. As to seisin being distinguished from title and possession; see Rawle on Covenants (5th ed.), p. 52, when covenant for right to convey is synonymous with covenant for seisin. See id., p. 82. That covenant against incumbrances is in England supplementary to covenant for quiet enjoyment and in America is generally a separate covenant, see id., pp. 8586. As to essential difference between covenant for quiet enjoyment and the covenants for seisin and right to convey, see id., p. 119. As to covenant for further assurance, see id., pp. 129 et seq. As to distinction between covenant of war- "Warrantie," 1. 3, ch. 13, sec. 697. ranty and the common-law warranty, that it has no place in English conveyancing and that it is generally synonymous with the covenant for quict enjoyment and as to its general force and effect in American law, see id., pp. 140 et seq. 2 Nichols v. Nichols, 5 Hun (N. Y.), 108. See Rawle on Cov. for Title (5th ed.), pp. 40, 56, although in some jurisdictions it is synonymous with the right to convey. Id., p. 40. As to effect of champerty on covenants of (See id. as to civil law definition.) "The warranty treated of by Littleton in this chapter is evidently of feudal extraction, being derived from the obligation which the lord was under, by that system of polity, to defend title to the land against all claimants. If the tenant was evicted the lord was bound to make him a recompense, by giving him lands of equal value to those evicted from him." Id. note, 356a. "In the antiquated action of war Massachusetts case that "By the ancient common law, the remedy on the warranty was by voucher or warrantia chartæ, and the recompense, recovered in those suits, was other lands rantia chartæ, the good old common | to render in value according to that law contained some provision. A state of things but as the land was warrantia chartæ lay before any im- when the warranty was made . . . pleading, but the writ supposed an Personal covenants of warranty and impleading; a man might have war- of seisin have in modern practice wantia chartæ quia timet implicari, superseded the ancient warranty; and and recover pro loco et tempore, but opposite opinions have been enterno execution would be awarded; but tained in different states in the Union, if he be ousted after, he shall have with regard to the proper measure his warranty on his first recovery; of damages in actions for the breach but it seems, in that case, he shall of those covenants; whether they make request to the warrantor, should be commensurate with the pending the assize, to administer a ancient warranty only, and therefore bar. 22 Vin. Abrid. 421, Warrantia be the value of the land at the time Chartæ, F, pl. 1; Fitz. Nat. Brev. of the purchase, ascertained by the 134, K; Roll v. Osborn, Hob. 22; consideration paid with interest or Coke's Lit. 100a. And if the de- should be the value at the time of fendant appears and says he is not eviction. The former rule is adopted impleaded, he, by this plea, con- in New York. Staats v. Ten Eyck, fesses the warranty, and the plaintiff 3 Cain. (N. Y.) 111f; 2 Am. Dec. 254; shall have judgment to recover his Pitcher v. Livingston, 4 Johns. (N. warranty." Funk v. Voneida, 11 Y.) 1. In Pennsylvania, Bender v. Serg. & R. (Pa.) 109, 115; 14 Am. Fromberger, 4 Dall. (Pa.) 4-11, and in Dec. 617, per Duncan, J. "But if he Virginia, Lowther v. Commonwealth, pleads in avoidance of the warranty, 1 Hen. & M. (Va.) 201; Nelson v. it is called a counterplea to the war- Matthews, 2 Hen. & M. (Va.) 164, ranty; and if he cannot defend him- and the latter rule in South Carolina, self against the warranty, the strang- Liber v. Parsons, 1 Bay. (S. C.) 19, er shall recover the land demanded and in Connecticut, Horsford v. against the voucher and he shall re- Wright, Kirby (Conn.), 3, 1 Am. cover as much other land against the Dec. 8. In Massachusetts a distincvouchee of the lands he has or had tion is made between the covenant at the time of the voucher; and this of warranty and the covenant of recovery of other lands is called a seisin. The principle with respect recovery in value." Bacon's Abrid. to both is, that the loss sustained at "Warranty" "(M)," citing 1 Inst. the time of the breach of covenant, 101, 393, and see note to id. (ed. must be the measure of damages. 1854), pp. 407, 408, where it is said: But as the covenant of seisin is "This recovery was only of the value broken as soon as the deed is exeof the land at the time the warranty cuted, if the grantor has not a title, was created; if the land became of and the covenant of warranty is not increased value afterwards, by the broken until eviction, the measure of discovery of a mine, or by buildings, damages in the former case is the or otherwise, the warrantor was not consideration paid with interest in to the value at the time the warranty was made. This was the general rule; but when the warrantor, on being vouched, entered into the warranty, generally he was bound to render other lands to the value of the lands lost at the time he entered into the warranty. In valuing the land lost, when the vouchee entered into the warranty specially, no regard was had to any improvements made by the tenant, as by erecting edifices, or turning pasture into arable land; nor was the discovery of a mine in the land lost after the warranty was made, but then not known, considered in ascertaining the value of the land to be recovered in recompense." Again it is decided in Pennsylvania that there can be no recovery, by way of damages, of other land of an equal quantity to make up the deficiency for breach of a covenant of title.? "The ancient English law relating to warranties of land was full of subtleties and intricacies; it occupied the attention of the most eminent writers of the English law, and it was declared by Lord Coke that the learning of warranties was one of the most curious and cunning learnings in the law, but it is now of little use even in England." 2 Bouvier's Inst. (ed. 1851) p. 399, art. 6, sec. 2036. the latter the value of the land at the 2 Bouvier's Inst. (ed. 1851) p. 400, time of the eviction. Marston v. art. 6, sec. 2039. Hobbs, 2 Mass. 433; Bickford v. Page, 2 Mass. 455; Gore v. Brazier, 3 Mass. | 523, 543; 3 Am. Dec. 182. And the principle of that distinction was advocated by Spencer, J., in Pitcher v. Livingston ubi supra. But in that case and also in those of Staats v. Ten Eyck and Bender v. Fromberger, though in all of them the action was brought for a breach of covenant of seisin, yet the decisions of the courts are founded upon principles applying with equal force to the covenant of warranty; and the former is considered as governed by the same rule with regard to damages as the latter. And the cases in Virginia were on covenants of warranty." "Warranty, in its original form, it is presumed, has never been known in the United States. The more plain and pliable form of a covenant has been adopted in its place; and this covenant, like all other covenants, has always been held to sound in damages, which after judgment, may be recovered out of the personal or real estate, as in other cases." "Citing Viner's Abrid. title Voucher, T, pl. 1, 2, 3; title Warranty K, pl. 11. Gore v. Brazier, 3 Mass. 523, 543; 3 Am. Dec. 182, per Parsons, C. J. That recovery of other lands and tenements of the value of those from which evicted and of damages to make up the deficiency could be recovered under the old warranty, see Viner's Abrid. "Warrantia Chartæ" "M," citing Brooke Warrantia Carta, pl. 13, pl. 25, pl. 30, pl. 31. 'Doyle v. Brundred, 189 Pa. 113; 41 Atl. 1107, where it is said: "In feudal times land was esteemed more highly than money for reasons grow § 1796. Covenants-General decisions.-Damages will not be awarded for the failure to perform an alleged covenant, which is merely a condition subsequent in a deed specifically unenforceable and not susceptible of execution by the court, and which is wanting in details and lacks particularity and specification. Nor will an action for damages lie for breach of a covenant in a deed where the grantor did not sign or seal the deed.9 And it is decided that the assessment of damages for breach of the covenant of quiet enjoyment must be based upon the facts as they exist at the time.10 If the covenant, broken by the grantee of a right of way, affects the entire land, the damages will not be restricted to the immediate tract to which the right of way particularly relates." And in case a part of the incumbrance is removed, damages can only be recovered as to the remaining part of the incumbrance, as where a part of a road is discontinued." If the covenant is one of seisin, damages may be ascertained without resort to a court of equity,13 and there may be a recovery of damages for total failure of title, where the title to a building and its freedom from incumbrances is warranted, and such building is upon leased ground, and the grantor only succeeded to the lessee's title, even though there was an agreement to pay the lessor on a certain basis of valuation on the termination of the lease.14 case the damages, arising from nonperformance, are easily ascertainable and the amount can be deducted from the sum a party would be otherwise entitled to recover for breach of a covenant, the fact that said party has not fully performed on his part does not prevent a recovery.15 And if there is not a ing out of the feudal institutions and the anti commercial tendencies of the 39 Atl. 1036. age. Hence the recovery for breach of covenant was in other land." Id. 120, per Dean, J., quoting Dumars v. Miller, 34 Pa. 319. See Rawle on Covenants (5th ed.), sec. 157. Blanchard v. Detroit, L., etc., R. Co., 31 Mich. 43; 18 Am. Rep. 142 (agreement to fence premises and keep them fenced held a covenant and not a condition); Countryman v. Deck, 13 Abb. N. C. (N. Y.) 110. In Bragdon v. Blaisdell, 91 Me. 326; 10 Dickey v. Weston, 61 N. H. 23. 11 Peden v. Chicago, R. I. & P. R. Co., 78 Iowa, 131; 42 N. W. 625; 4 L. R. A. 401. 12 Herrick v. Moore, 1 App. (Me.) |