COVENANT OF WARRANTY. An assur ance by the grantor of an estate that the grantee shall enjoy the same without ruptibn by virtue of paramount title. Parker v. Dunn, 47 N. C. 203; Howard v. Doolittle, 3 Duer (N. Y.) 464 ; Rindskopf v. Trust Co., 58 Barb. (N. Y.) 36; Moore v. Lanham, 3 (S. C.) 304.
It is not in use in English conveyances, but is in general use in the United States; 2 Washb. R. P. 659; and in several states is the only covenant in general use; Rawle, Coy. § 21; Leary v. Durham, 4 Ga. 593; Dickinson v. Hoome's Adm'r, 8 Gratt. (Va.) 353; Caldwell v. Kirlipatrick, 6 Ala. 60, 41 Am. Dec. 36.
A special warranty is not a covenant against incumbrances ; Washington City Say. Bank v. Thornton, 83 Va. 157, 2 S. E. 193. See Bender v. Fromberger, 4 Dall. (Pa.) 436, 1 L. Ed. 898.
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 will, and my heirs, executors, and administrators shall, warrant and de fend 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 spe cial covenant, as the case may be]. When general, it applies to lawful adverse claims of all persons whatever ; when special, it applies only to certain persons or claims to which its operation is limited or restricted ; 2 Washb. R. P. 665. See a form in Rawle, Coy. § 21, n.
This limitation may arise from the nature of the subject-matter of the grant ; Tufts v. Adams, 8 Pick. (Mass.) 547; Wheelock v. Renshaw, 19 Pick. (Mass.) 341; Patterson's Lessee v. Pease, 5 Ohio 190.
Such covenants give the covenantee and grantee the benefit of subsequently acquired titles ; Jackson v. Matsdorf, 11 Johns. (N. Y.) 91, 6 Am. Dec. 355; Brown v. McCormick, 6 Watts (Pa.) 60, 31 Am. Dec. 450 ; Terrett v. Taylor, 9 Cra. (U. S.) 43, 3 L. Ed. 650 ;
Wark v. Willard, 1'3 N. H. 389; Patterson's Lessee v. Pease, 5 Ohio 190; Somes v. Skin ner, 3 Pick. (Mass.) 52 ; Lawry v. Williams, 13 Me. 281; to the extent of their terms ; Blake v. Tucker, 12 Vt. 39 ; Trull v. East man, 3 Mete. (Mass.) 121, 37 Am. Dec. 126; Jackson v. Hoffman, 9 Cow. (N. Y.) 271; Larrabee v. Larrabee, 34 Me. 483 ; but not if an interest actually passes at the time of making the conveyance upon which the cove • rant may operate ; Lewis v. Baird, 3 Mc Lean 56, Fed. Cas. No. 8,316 ; Blanchard v. Brooks, 12 Pick. (Mass.) 47 ; Wynn v. Har mon's Devisees, 5 Gratt. (Va.) 157; in case of terms for years, as well as conveyances of greater estates; Wms. R. P. 229 ; 4 Kent 261, n.; Cro. Car. 109; Barney v. Keith, 4 Wend. (N. Y.) 502; as against the grantor and those claiming under him; 2 Washb. R. P. 479; including purchasers for value; Bates v. Norcross, 14 Pick. (Mass.) 224; Kimball v. Blaisdell, 5 N. H. 533, 22 Am. Dec. 476 ; Alien v. Sayward, 5 Me. 231, 17 Am. Dec. 221; Jackson v. Murray, 12 Johns. (N. Y.) 201; Terrett v. Taylor, 9 Cra. (U. S.) 53, 3 L. Ed. 650; but see Jackson v. Bradford, 4 'Wend. (N. Y.) 619. And this principle does for breach of the covenant, if evicted by such title ; Jarvis v. Aiken, 25 Vt. 635 ; Curtis v. Deering, 12 Me. 499. See Wheeler v. Wheeler, 33 Me. 347. A deed of land is not void as between the parties because of a want of consideration, and 'such want is no answer to an action upon a breach of cove nant of warranty ; Comstock v. Son, 154 Mass. 389.
In case of a release of right and title, cove nants limited to those claiming under the grantor do not prevent the assertion by the grantor of a subsequently acquired title; Bell v. Twilight, 26 N. H. 401 ; Jackson v. Peek, 4 Wend. (N. Y.) 300; Doane v. Willcutt, 5 Gray (Mass.) 328, 66 Am. Dec. 369 ; Kins man's Lessee v. Loomis, 11 Ohio 475 ; Ham v. Ham, 14 Me. 351; Cole v. Persons Un known, 43 Me. 432; Gee v. Moore, 14 Cal. 472.