COVENANT OF WARRANTY. An assurance by the grantor of an estate that the grantee shall enjoy the same without in terruption by virtue of paramount title. 2 Jones, No. C. 203 ; 3 Duer, N. Y. 464.
It is not in use in English conveyances, but is in general use in the United States, 2 Wash burn, Real Prop. 659, and in several states is the only covenant in general use. Rawle, Coy. 203, n.; 4 Ga. 593 ; 8 Gratt. Va. 353 ; 6 Ala. 60.
2. The form in common use is as follows:— " And I the said [grantor], for myself, my heirs, executors, and administrators, do cove nant with the said [grantee], his heirs and assigns, that I wlll, and my heirs, executors, and administrators shall, warrant and defend the same to the said [grantee], his heirs and assigns forever, against the lawful claims and demands of all persons [or, of all persons claiming by, through, or under me, but against none other]," [or other special covenant, as the case may be]. When general, it applies to lawful adverse claims of all persons what ever ; when special, it applies only to certain persons or claims to which its operation is limited or restricted. 2 Washburn, Real Prop. 665.
This limitation may arise from the nature of the subject-matter of the grant. 8 Pick. Mass. 547; 19 id. 341 ; 5 Ohio, 190; 9 Cow. N. Y. 271.
3. Such covenants give the covenantee and grantee the benefit of subsequently acquired titles, 11 Johns. N. Y. 91 ; 13 id. 316; •14 id. 193 ; 9 Cow. N. Y. 271; 6 Watts, Penn. 60; 9 Cranch, 43; 13 N. H. 389; 1 Ohio, 190; 3 id. 107 ; 3 Pick. Mass. 52; 13 id.116; 24 id. 324; 3 Mete. Mass. 121 13 Me. 281; 20 id. 260, to the extent of their terms, 12 Vt. 39; 3 Mete. Mass. 121; 9 Cow. N. Y. 271; 34 Me. 483; but not if an interest actually passes at the time of making the conveyance upon which the covenant may operate, 3 McLean, C. C. 56; 9 Cow. N. Y. 271; 12 Pick. Mass. 47; 5 Va. 157 ; in case of terms for years, as well as conveyances of greater estates, Bur ton, Real Prop. 850; Williams, Real Prop. 229; 2 Washburn, Real Prop. 478; 4 Kent, Comm. 261, n.; Croke Car. 109; 1 Ld. Raym. 729; 4 Wend. N. Y. 502; 1 Johns. Cas. N.Y. 00; as against the grantor and those claim ing under him, 2 Washburn, Real Prop. 479, 480; including purchases for value, 14 Pick. Mass. 224; 24 id. 324; 5 N. H. 533 • 13 id. 389; 5 Me. 231; 12 Johns. N. Y. 201 ; 13 id. 316; 9 Cranch, 53; but see 4 Wend. N. Y. 619; 18 Ga. 192. And this principle does not operate to prevent the grantee's action for breach of the covenant, if evicted by such title. 1 Gray, Mass. 195 ; 25 Vt. 635 ; 12 Me.
499. See 33 Me. 346.
In case of a release of right and title, cove nants limited to those claiming under the grantor do not prevent the assertion of a sub sequently acquired title. 26 N. H. 401 ; 4 Wend. N. Y. 300 ; 6 Cush. Mass. 34; 5 Gray, Mass. 328; 11 Ohio, 475 ; 14 Me. 351 ; 29 id. 183; 43 id. 432; 14 Cal. 472.
' 4. It is a real covenant, and runs with the estate in respect to which it is made into the hands of whoever becomes the owner, 2 Wash burn, Real Prop. 659; 4 Sneed, Tenn. 52, against the covenantor and hisyersonal re re sentatives, 27 Penn. St. 288 ; 3 Zabr. N. J. 260, to the extent of assets received, and cannot be severed therefrom. 13 Ired. No. C. 193.
The action for breach should be brought by the owner of the land, and, as such, as signee of the covenant at the time it is broken, 4 Johns. N. Y. 89; 19 Wend. N. Y. 334; 2 Mass. 455 ; 7 id. 441; 3 Cush. Mass. 219; 10 Me. 81; 5 T. B. Monr. Ky. 357 ; 12 N. H. 413 ; but may be by the original covenantee, if he has satisfied the owner. 5 Cow. N.Y.137; 10 Wend. N. Y. 184; 2 Mete. Mass. 618; 3 Cush. Mass. 222; 5 T. B. Monr. Ky. 357; 1 Conn. 244; 1 Dev. & B. No. C. 94; 10 Ga. 311; 26 Vt. 2'79.
To constitute a breach there must be an eviction by paramount title, Rawle, Coy. 221; 6 Barb. N. Y. 165 ; 5 Harr. Del. 162; 11 Rich. So. C. 80; 13 La. Ann. 390, 499; 5 Cal. 262; 4 Ind. 174; 6 Ohio St. 525; 26 Mo. 92; 17 Ill. 185; 36 Me. 455 ; 14 Ark. 309 • which may be conetructive, 12 Me.499; 17 Ill. 185; and it is sufficient if the tenant yields to the true owner, or if, the premises being vacant, such owner takes possession. 5 Hill, N. Y. 599 ; 4 Mass. 349; 8 Ill. 162; 5 Ired. 393. See 4 Halst. N. J. 139.
5. Exercise of the right of eminent do main does not render the covenantee liable. 31 Penn. St. 37.
The measure of damages in England, Arkan sas, Georgia, Indiana, Iowa, Kentucky, Mis souri, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, Wis consin, and in the United States courts, is the value of the lands at the time of convey ance, and the interest. Rawle, Coy. 314; 8 Taunt. 715; 19 Mo. 435; 17 How. 609; 25 N. H. 229. 3 Chandl. Wisc. 295. In Cot necticut, Maine, Massachusetts and Vermont it is the value at the time of the eviction. 2 Washburn, Real Prop. 676.