3 Colo. 510 | Colo. | 1877
This was an action for the breach of a .covenant of seizin and of a covenant of right to convey inserted in a deed executed by the defendant to the plaintiff.
The declaration, after setting forth a description of the premises conveyed, avers that the defendant for himself, his heirs and personal representatives did covenant with the plaintiff, her heirs and assigns that he was well seized of the premises as of good, sure, perfect, absolute and indefeasible estate of inheritance, in law, in fee simple and that he had good right, full power and lawful authority to grant, bargain, sell and convey the same ; that the same was free and clear from all former and other grants, bargains, sales, liens, taxes, assessments and incumbrances of whatever kind and nature soever; and that the said bargained premises in the quiet and peaceable possession of the plaintiff, her heirs and assigns against ail and any person or persons lawfully claiming or to claim the whole or any part of the said premises, the said defendant did and would warrant and forever defend except as against the United States. The breaches assigned are that the defendant was not well seized of the said premises as aforesaid, and that he had not good right to convey the same.
To this declaration a general demurrer was interposed which the court sustains. It is contended by the defend
There is a series of covenants all of which it is conceded would be general but for the limiting words following the last. Is the generality of the covenant of seizin and of the covenant of good right to convey restrained by the covenant of warranty which, by express words, except the United States % In construing these covenants courts will take judicial notice that the source of title to mining property in Colorado is the United States. It is only upon compliance with the acts of congress and the statutes of the State made in pursuance thereof that the United States can be divested of, and the locator of mining property or his assigns can be invested with title thereto. With the presumed knowledge of the source of mining titles, the grantee in the deed made purchase of the property therein described.
The text-books and adjudicated cases indulge in many refinements and subtle distinctions in the endeavor to eliminate a rule of universal application in the construction oí covenants when any one in a series is limited by express words generally founding the rule upon the particular collocation of the limited covenant in the series, whether it be first, last, or occupy some other place in the series. Rawle. on Covenants, 498 et seq. and cases there cited; 3 Washburn on Real Property, 485 and cases cited’.
The professed object of the rule is the ascertainment oí the intention of the parties to the covenants. But when
The cases are comparatively few in which courts have been called upon to determine the effect of such a peculiarly significant limitation of a covenant of warranty. Seeking the intention of the parties, we cannot well see how the case could have been differently decided. In our opinion the demurrer in the case before us was properly sustained.
Affirmed.