1 Aik. 325 | Vt. | 1825
The opinion of the Court was delivered by
The principal question arising out of the case before us, is, whether the deed, set forth in the pleadings, contains any covenant of the effect alleged in the declaration. The deed, it appears, contains an express covenant of warranty against all lawful claims. But this covenant extends only to an eviction or ouster from the possession ; and it is a rule well settled, and universally acted upon, that to maintain an action upon it, the plaintiff must aver and show an eviction. [2 Sound. 178, 181, n. 10__-2 Johns. Rep. 4, 395. — 3 Johns. Rep. 464.— 7 Johns. Rep. 376.-2 Mass. 433. — 4 Mass. 408.] The deed also contains an implied covenant, arising from the word give : but this also is a covenant of warranty, and not a covenant of seizin, and is good to the grantee and his heirs only, during the life of the grantor. [Co. Lilt. 384 n. 332. — Shep. Touch. 180. —3 Wils. 28. — 2 Caine,s Rep. 188.] The implied covenant, being a covenant of warranty, is subject to the same rules, while in force, as the express covenant of warranty; and the want of seizin in the whole or any part of the land granted, or a deficiency in the quantity conveyed, is not, therefore, within either covenant, and cannot be assigned as a breach of them. Even if the word give implied a covenant of seizin, its operation would be qualified and restrained by the express covenant of warranty. It is a principle well established, that the insertion of any express covenant on the part of the grantor, will qualify
The inquiry, then, is whether the words in the deed, expressing the quantity of land conveyed, amount to a covenant. Although no precise form of words is necessary to constitute an express covenant, yet when the word covenant is wanting, the
Judgment for the defendant.