COVENANT OF SEISIN. An assu rance to the grantee that the grantor has the very estate, both in quantity and quality, which he professes to convey. Platt, Coy. 306. It has given place in English convey ancing to the covenant of right to convey, but is in use in several states of the United States. 2 Washburn, Real Prop. 648.
In England, 1 Maule & S. 355 ; 4 id. 53 ; Walker, Am. Law, 382, and in several states of the United States by decisions, 5 Blackf. Ind. 232; 3 Ohio, 211 ; 17 id. 52, or by . statute, 2 Washburn, Real Prop. 650, this covenant runs with the land, and may be sued on for breach by an assignee ; in others it is held that a mere covenant of lawful seisin does not run with the land, but is broken, if at all, at the moment of executing the deed. Rawle, Coy. 110; 2 Washburn, Real Prop. 655, 657; 4 Mass. 408, 439, 627; 10 Cush. Mass. 134; 2 Barb. N. Y. 303; 2 Me. 269; 10 95; 2 Dev. No. C. 30; 8 Gratt. Va. 396; 5 Sneed, Tenn. 119; 7 Ind. 673.
A covenant far indefeasible seisin is every where held to run with the land, 2 Vt. 328; 2 Dev, No. C. 30; 4 Da11. 439; 5 Sneed, Tenn. 123; 14 Johns. N. Y,. 248; 14 Pick. Mass. 128 ; 10 Mo. 467; and to apply to all titles adverse to the grantor's. 2 Washburn, Real Prop. 656.
A covenant of seisin or lawful seisin, in England and several of the states, is satis only by an indefeasible seisin, Rawle, Cov. 20; 22 Vt. 106; 15 N. H. 176; 6 Conn. 374; while in other states possession under a claim of right is sufficient. 3 Vt. 403-407;
2 Mass. 433; 10 Cush. Mass. 134; 26 Mo, 92 ; 3 Ohio, 220, 525.
A covenant of seisin, of whatever form, is broken at the time of the execution of the deed if the grantor has no posSassion either by himself or another; and no rights can pass to the assignee of the grantee. 2 Johns. N. Y. 1; 2 Vt. 327; 5 Conn. 497; 14 Pick. Mass. I70; 1 Mete. Masa. 450; 17 Ohio, 60; 8 Graft. Va. 397 ; 4 Cranch, 430 ; 36 Me. 170 24 Ala. N. s. 189 ; 4 Kent, Comm. 471 ; Washburn, Real Prop. 656.
The existence of an outstanding life-estate, Rawle, Coy. 52; a material deficiency in the amount of land, 1 Bay, So. C. 256 ; see 24 Miss. 597 ; non-existence of the land described, 16 Pick. Mass. 68 ; 4 Cush. Mass. 210 ; the existence of fences or other' fixtures on the premises belonging to other persons, who have a right to remove them, 1 N. Y. 564 ; 7 Penn. St. 122; concurrent seisin of another as tenant in common, 12 Me. 389; adverse pos session of a part by a stranger, 7 Johns. N.Y. 376, constitute a breach of this covenant.
But a covenantee cannot recover against his grantor when the covenantee purchased knowing that he had a good title. Rawle, Coy. 111-114 ; 8 Pick. Mass. 547 ; 22 id. 490 ; 6 Cush. Mass. 127.
In the execution of a power, a covenant that the power is subsisting and not revoked is substituted. Platt, Coy. 309.