190 P. 1028 | Idaho | 1920
This is an action to recover damages for breach of a covenant in a deed by which appellant conveyed certain property to a predecessor in interest of respondent. The description in the deed of the land conveyed reads as follows:
“The East half of the Southeast quarter of Section six in Township six South of Range thirteen East of the Boise Meridian in Idaho;
“Saving, excepting and reserving, however, from this conveyance the schoolhouse and one acre of ground upon which it is situated. Saving and excepting further such railroad right of way as was granted to Oregon Short Line Railway Company, its successors and assigns, by acts of Congress, said Oregon Short Line running through said conveyed lands with its main line.”
A controversy arose over a ten-acre tract adjacent to the right of way for station buildings, etc., granted to the railroad company by act of Congress, March 3, 1875, of which the railroad company recovered possession some time subsequent to the execution of the deed.
The appeal is from a judgment in favor of plaintiff.
Appellant’s main contention is that' the action is for breach of a covenant of seizin; that the breach occurred upon the delivery of deed, and that the action for damages is therefore barred by the statute of limitations. This contention is without merit. The deed itself contains no covenant of seizin. The complaint does not allege that there was a covenant of seizin in the deed; neither is a covenant of seizin implied from the words of conveyance, “grant, bargain, sell, convey and confirm,” contained in the deed. (Aiken v. Franklin, 42 Minn. 91, 43 N. W. 839, 6 L. R. A. 360; Frost v. Raymond, 2 Caines (N. Y.), 188, 2 Am. Dec. 228.)
C. S., section 5384, makes provision for the covenants implied by the word “grant” in a deed, but the covenant of seizin is not provided for therein. The deed, however, contained the following:
“To Have and to Hold, All and singular the above mentioned and described premises, together with the appurtenances, unto the parties of the second part and to their heirs and assigns, against the said party of the first part, and its successors and assigns, and against all and every person and persons whomsoever, lawfully claiming or to claim the same shall and will warrant and by these presents forever defend.”
While the foregoing is defective, we think it amounts to a general covenant of warranty. As such it runs with the land and was not-breached until eviction under a paramount title. The complaint sufficiently alleges a breach of covenant of warranty as to the ten acres in question. “To constitute an eviction which will operate as a breach of covenant of warranty, the ouster need not be from the entire premises, ’but from part only of them.” (7 R. C. L., p. 1155, sec. 69.)
Failure to notify a warrantor of the pendency of an action against a warrantee by one seeking to establish a para-' mount title and right to possession of a tract of land, or failure to make a warrantor a party in such action, does not release him from liability upon his covenant of warranty. The only question that can be raised on account of such failure relates to the right of the warrantee to offer the judgment in that action in evidence in an action against the warrantor, for breach of his covenant of warranty. (Council Imp. Co. v. Pacific & Idaho etc. Co., 29 Ida. 113, 157 Pac. 258; Andrews v. Denison, 16 N. H. 469, 43 Am. Dec. 565, and note.) In this ease the paramount title of the Oregon Short Line Railroad Company to the ten acres above mentioned was admitted, and the only issue with reference to it raised by the pleadings was as to eviction of respondent by the railroad company. ' r
The evidence introduced at the trial was sufficient to sustain the findings of the court and the judgment entered thefeon.
The judgment is affirmed, with costs to respondent.
