5 Me. 227 | Me. | 1828
delivered the opinion of the Court, at the ensuing term in Cumberland.
In order to determine whether the defendant is estopped to claim the land in question by reason of the former conveyance, it becomes important to ascertain what covenants he entered into by that deed. The covenants, whatever they are, must be deemed his own; as he had no authority thus to bind the estate of his testator.
By the use of the word “ give,” in the deed of the executors, it is insisted a cbvenant of warranty arises by implication of law, during the Jives of the grantors. The legal effect of the term dedi is derived from feudal times. So long as a tenure was created, by the use of .this term, and .the feoffee and his heirs held of the feoffor and his heirs, by certain services, the law held the latter to warrant and defend the land, which was the consideration for these services. But after subinfeudations were abolished by the statute of quia emptores, and the feoffee, instead of holding of the feoffor, held of the chief lord of the fee; by the word “give,” (dedi,) the feoffor only was bound to warranty, and not his heirs. But ibis covenant, thus raised by implication of law in a feoffment, does not arise from the use of the same term, in instruments which derive their efficacy from the statute of uses. 2. Bl. Com. 301. Of this description are conveyances in this State. , That in most general use, is a deed of bargain and sale. It is true that, to effectuate the intentions of the parties., courts may and do construe a deed in this form to be a feoffment, a covenant to stand seised, or any ottier instrument known to the law, for the conveyance of real estate. The deed in question, is a deed of bargain and sale. It was a mode apt, appropriate and effectual, for the purpose intended. No other end is to be answered by regarding it as a feoffment; except that of. raising by implication of law a covenant of warranty against the executors; a covenant, which they were under no obligation to make ; and which they cannot be presumed to have intended. And after all it would be questionable, whether they would be bound by any other than express covenants.
The only covenant expressed is, that they had good right and lawful authority, under and by the will, and as.executors thereto, to sell
JVew trial granted.