112 Pa. 315 | Pa. | 1886
delivered the opinion of the court, April 19th, 1886.
By virtue of this Act the words “grant, bargain and sell,” contained in the deed, are a covenant of seisin, a covenant for quiet enjoyment, and a covenant against incumbrances. If, as was alleged, there was an incumbrance against the property ah the time of the sale by Henry McKeen to Babetta Memmert, the covenant against incumbrances was broken as soon as made: Cathcart v. Bowman, 5 Pa. St. Rep., 317.
Incumbrances are of two kinds, viz., 1. Such as affect the title; and 2. Those which affect only the physical condition of the property. A mortgage or other lien is a fair illustration of the former; a public road or a right of way, of the latter. Where incumbrances- of the former class, exist, the covenant referred to, under all the authorities, is broken the instant it is made, and it is of no importance that the grantee had notice of them when he took the title: Cathcart v. Bowman, supra; Funk v. Voneida, 11 S. & R., 109. Such incumbrances are usually of a temporary character and capable of removal; the very object of the covenant is to protect the vendee against them; hence knowledge, actual or constructive, of their existence, is no answer to an action for breach of such covenant. Where, however, there is a servitude imposed upon, the land which is visible to the eye, and which affects not title, but the physical condition of the property, a different rule prevails. Thus it was held in Patterson v. Arthurs, 9 Watts, 152, that where the owner had covenanted to convey certain lots free from all incumbrances, a public road, which occupied a portion of sucli lots, was not an incumbrance within the meaniug of the covenant. This is not because of any right acquired by the public, but by reason of the fact that the road, although admittedly an incumbrance,
In the case in hand the alleged incumbrance consists of stone steps belonging to the adjoining house, and so constructed as to occupy a portion of the sidewalk in front of plaintiffs’ house. Both houses had originally belonged to the defendant below. . With the steps in this condition he sold
We find no error in this record.
Judgment affirmed.