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supreme court has said that the language is imperative, leaving no room for construction. It applies to all conveyances of real estate, whether they be grants in fee, for term of years, or by way of mortgage. (Kinney v. Watts, 14 Wend. 40. Hone v. Fisher, 2 Barb. Ch. 569.) The chancellor, in Tone v. Brace, (11 Paige, 569,) differs from the supreme court in Kinney v. Watts, (supra,) and supposes that the 140th section of the revised statutes does not extend to an estate for years, and, therefore, that the old rule with respect to implied covenants remains as to chattel interests. The difference between the two courts has not yet been authoritatively settled. We have already had occasion to notice that the legislature also abolished, at the same time, lineal and collateral warrantees, with all their incidents. As a substitute, they enacted suitable provisions for making the heirs and devisees of the covenantor answerable to the extent of the lands descended or devised to them, in case the personal assets of the ancestor proved to be insufficient for that purpose. (1 R. S. 739, § 141. 2 id. 109, § 53.) The lineal and collateral warrantees thus abrogated, are not the covenant of warranty usually inserted in our deeds at this day, but had their origin in feudal principles, which have thus been succeeded by better remedies.

The covenants which are usually entered into by a vendor seised in fee, and who parts with all his estate to his vendee, are 1, that he is seised in fee; 2, that he has power to convey; 3, for quiet enjoyment by the purchaser, his heirs and assigns; 4, that the estate is free from incumbrances; 5, for further assurance; and lastly, that the vendor will forever warrant and defend. (2 Sugd. Vendors, 702.)

It is the duty of the attorney of the vendor to see that his client does not enter into unusual covenants, without fully understanding their nature and effect. If the purchaser consents to take a defective title, relying on the covenants of the vendor, this fact should be distinctly stated in the deed.

There are some covenants which run with the land, and some which do not, and are only obligatory upon the covenantor, and his representatives.

We shall first notice those which do not run with the land.

1. The covenant of seisin, if broken at all, must be so at the time of the conveyance. (Greenby v. Wilcox, 2 John. 1. Hamilton v. Wilson, 4 id. 72. Abbott v. Allen, 14 id. 248. Bingham v. Wei

derwax, 1 Comst. 509.) If the grantor have a seisin in fact, though not in law, the covenant is kept; but if he has neither seisin in fact nor in law, the covenant is broken at once. (Fowler v. Poling, 2 Barb. 300.)

In an action of covenant by the vendee against the vendor, for the breach of this covenant, the measure of damages is the value of the land at the time of the sale, and not of the eviction. The defendant is liable to refund the purchase money, together with interest to be calculated from the time that the plaintiff loses the mesne profits; and the costs, including reasonable counsel fees, which the plaintiff sustained in the action wherein he was evicted; but not the costs of the suit for the mesne profits. (Staats v. Ten Eyck, 3 Caines, 111. Pitcher v. Livingston, 4 John. 1. Bennet v. Jackson, 13 id. 50.) In an action of this kind the true consideration may be shown, and also that the whole or some part of it remains unpaid, notwithstanding a different consideration is expressed in the deed, and the receipt of it is admitted in the conveyance. (Bingham v. Weiderwax, 1 Comst. 514.)

On recovery by the grantee for breach of the covenant of seisin, where he has been in the actual enjoyment of the land and taken the mesne profits, he is entitled to recover the consideration money and the interest thereon for six years only, and the costs. The reason of this is, that on a recovery by the rightful owner against him, he is only liable for the mesne profits for six years, and hence his right to interest should be limited to the same period. (Caulkins v. Harris, 3 Caines, 324, and case before cited.)

2. The covenant that the grantor has power to convey as well as that against incumbrances, is broken at the time of the conveyance, if broken at all; and therefore does not run with the land. (Green

by v. Wilcox, supra. Hamilton v. Wilson, supra. Fowler v.

Poling, supra, Dimmick v. Lockwood, 10 Wend. 142. Kelly v. The Dutch Church, 2 Hill, 105. Webb v. Alexander, 7 Wend. 281. Beddoe's Executors v. Wadsworth, 21 id. 120.) A covenant real ceases to be such when broken, and no longer runs with the land. (Per Cowen, J. in 21 Wend. 123, supra.) Hence none of the covenants which are broken when made run with the land.

In an action upon a general covenant for quiet enjoyment, the plaintiff must aver and prove that the person by whom he was evicted had a lawful title to the property; and that he had such title before or at the time of the conveyance by the defendant. (Kelly

v. The Dutch Church, 2 Hill, 111, per Bronson, J.) It must be both a lawful and a superior title.

The covenant for quiet enjoyment goes to the possession and not to the title; and is broken only by a lawful entry and expulsion from, or some actual disturbance in the possession. (Korts v. Carpenter, 5 John. 120. Whitbeck v. Cook, 15 id. 483.) It is therefore like a covenant of warranty, which however defective the title may be, is not brokeu till the possession is disturbed. When the latter event transpires, with respect either to the covenant for quiet enjoyment or the covenant of warranty, an action lies to recover damages for the failure both of possession and title, according to the extent of such failure. (Beddoe's Executors v. Wadsworth, 21 Wend. 124. Webb v. Alexander, supra. Kelly v. The Dutch Church of Schenectady, supra.) And this action can be brought only by the party whose possession has been disturbed.

It is said by Cowen, J. in Beddoe's Ex'rs. v. Wadsworth, already cited, that there is a difference in more respects than one between our own and the English cases as to what shall constitute a breach of the covenants of title, so as to take away the assignable quality. He says it would seem that in England a simple failure of title, without eviction, would be a breach of the covenants of quiet enjoyment. The cases already cited show, that with us the doctrine is clearly otherwise. In England, too, the covenant of seisin is said to run with the land till actual damages are sustained by the breach. But the reason assigned for the decision is too refined to be sound.

The doctrine of the courts in this state is, that where the covenants are all broken at the time they were made, so as to give an immediate right of action to the covenantee, they do not run with the land, and consequently the right of action does not pass to the assignee of the covenantee. The covenant of seisin, and of good right to convey and against incumbrances, all stand upon the same footing, and are broken at the instant they are made, if they are broken at all. (Mitchell v. Warner, 5 Comst. 497, and the cases before cited.)

The grantee who has taken a covenant of seisin is not bound to wait until evicted before bringing his action for the breach of this covenant. If he suspects the title of his grantor to be defective, he may commence his action at once, subject however to be defeated if the grantor can show that he had title in himself at the time he conveyed and had good right to convey. (Abbott v. Allen, 14 John.

248.) The covenant of seisin extends only to a title existing in a third person, and which might defeat the estate granted. (Fitch v. Baldwin, 17 John. 161.) It is a breach of this covenant if the covenantor was not seised of the entire estate, but others were seised of an undivided portion. (Sedgwick v. Hollenbeck, 7 John. 376.) But it is no breach of it that the land conveyed contains a less number of acres than is described in the deed, nor that it was incumbered by mortgages or judgments, nor that a portion of it is subject to the easement of a public highway. (Mann v. Pearson, 2 John. 37. Stannard v. Eldridge, 16 id. 254. Whitbeck v. Cook, 15 id. 483.) In these respects the purchaser should protect himself by other and appropriate covenants.

The covenant that the covenantor has good right to convey is said to be synonymous with the covenant of seisin. Of course the principles and practice applicable to the one, apply to the other also. (Rickert v. Snyder, 9 Wend. 421.)

So also with respect to the covenant against incumbrances, the grantee may extinguish them himself and then maintain an action against the covenantor for the actual damages; but where the incumbrance is still outstanding, and the grantee has suffered no disturbance by reason of it, he can only recover nominal damages.

2. With respect to covenants running with the land, it may be said that they embrace all such as extend to the possession as well as the title. This attribute belongs to the covenant of warranty, and the covenant for quiet enjoyment. (Rickert v. Snyder, supra.) A covenant to renew the lease at the end of the term, a covenant not to erect or suffer to be erected any tenement, edifice or structure, upon a street or common owned by the grantor in front of the premises, and a covenant by the lessor to repair in case of damage by fire, all run with the land, and in the latter case the covenant binds the grantee of the reversion to rebuild in case of a total destruction of the premises. (Piggot v. Mason, 1 Paige, 412. Rutgers v. Hunter, 6 John. Ch. 215. The Trustees of Watertown v. Cowen, 4 Paige, 510. Allen v. Culver, 3 Denio, 284.)

In delivering the judgment of the supreme court in Allen v. Culver, (supra,) Jewett, J. at page 295, discusses at large the subject of covenants which run with the land, and gives the following as instances of that class of covenants, embracing some which we have already mentioned, and others not yet specified, viz: 1. A covenant of warranty. (Suydam v. Jones, 10 Wend. 180. Withy v. Mum

ford, 5 Cowen, 137. Le Ray De Chaumont v. Forsythe, 2 Penn. Rep. 507. Wyman v. Ballard, 12 Mass. Rep. 306. Mitchell v. Warner, 5 Conn. Rep. 497.) 2. A covenant for quiet enjoyment. (Markland v. Crump, 1 Dev. & Bat. 94.) 3. A covenant that neither the grantor nor his heirs shall make any claim to the land conveyed. (Fairbanks v. Williamson, 7 Greenl. 96.) 4. A covenant by a tenant to repair. (Demarest v. Willard, 8 Cowen, 206. Norman v. Wells, 17 Wend. 148.) 5. A covenant to pay rent. 6. A covenant not to erect a building in a common or public square owned by the grantor in front of the premises conveyed. (Watertown v. Cowen, 4 Paige, 510.) It is no objection that the rent is a rent charge, or reserved in a grant in fee, with a clause of distress for non-payment. It still runs with the land, and payment may be enforced against the party occupying the land, or the land itself, as we have already had occasion to show under a former head. (Van Rensselaer v. Hays, 19 N. Y. Rep. 80. 2 Sug. on Vendors, Perk. ed. 177. Ante, p. 205.) It is a general rule that all covenants concerning title run with the land, except such as are broken before the land passes. (4 Kent's Com. 473.) Hence a covenant for further assurance runs with the land, whether the estate to which it relates be an estate in fee or for a term of years. (Campbell v. Lewis, 3 Barn. & Ald. 392. Spencer v. Noyes, 4 Ves. 370.)

The leading authority on the subject of covenants running with the land is Spencer's case, (5 Co. 16,) and see the note to that case. The authorities which have been cited are little more than a commentary upon it.

A covenant running with the land has relation to the land. If the thing to be done be merely collateral to the land, and does not touch or concern the thing demised in any sort, then the assignee is not charged. This was the effect of the 2d resolution of Spencer's case, (supra. Dolph v. White, 2 Kern. 301.)

There are cases where the covenant runs with the land, which do not arise under the statute. (1 R. S. 747, § 23.) That section, as modified by the laws of 1846, ch. 274, provides that the grantees of any demised land, tenements, rents or other hereditaments, or of the reversion thereof, the assignee of the lessor of any demise and the heirs and personal representatives of the lessor, grantee or assignee, shall have the same remedies by entry, action or otherwise, for the non-performance of any agreement contained in the lease so assigned, or for the recovery of any rent, or for the doing of any

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