51 So. 861 | Ala. | 1910
The action is covenant. Each count is for breaches of covenants against incumbran
An incumbrance is defined to be “every right to or interest in land granted, to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance.”—Prescott v. Truman, 4 Mass. 627, 3 Am. Dec. 246; Copeland v. McAdory, 100 Ala. 557, 13 South. 545; Tuskegee Land Co. v. Birmingham Realty Co., 161 Ala. 542, 49 South. 378. It is, therefore, not at all necessary that the incumbrance pass the fee to any part of the freehold. In fact, a part of the definition of an incumbrance is that it is consistent with the passage of the fee by the deed or grant containing the covenants against incumbrances. It is only necessary that the incumbrance confer upon its owner some interest in or right to some profit, dominion, or lawful use out of or over the land. Any burden upon the estate granted, which diminishes the full measure of its enjoyment, or renders it less useful or less salable, is an incumbrance, though the entire fee to all the lands granted pass by the conveyance containing covenants against incumbrances.
It was not at all necessary that the letters or leases should have been so executed by the corporation as to
The trial court therefore erred in excluding these exhibits to the defendant’s depositions, which thus tended to prove the lease alleged. The judgment is reversed, and the cause remanded.
Reversed and remanded.