67 So. 582 | Ala. | 1914
This covenant, in substance and effect, is the same as a covenant for possession and quiet enjoyment. Its obligation is, not that the covenantor is the true owner, or that he is seized in fee Avith the right to convey but that he will defend and protect the covenantee against the rightful claims of all persons that may be thereafter asserted. It is not broken, therefore, so long as possession and enjoyment are not interfered with.—Oliver v. Bush, 125 Ala. 534,-27 South. 923; Caldwell v. Kirkpatrick, 6 Ala. 60, 40 Am. Dec. 36; Green v. Irving, 54 Miss. 450, 28 Am. Rep. 360. It operates in futuro, unless the true oAAuier is in actual possession at the time the covenant is entered into, in Avhich case there is a breach eo instanti; it runs with the land, that is, it is intended for the benefit of the ultimate grantee in whose time it is broken, and there can be no breach except by an actual or constructive eviction.—Prestwood v. McGowin, 128 Ala. 267, 29 South. 386, 66 Am. St. Rep. 136. These principles are of common statement in the authorities.
“An eviction, according to all the best authorities, means some change in the possession of the party [covenantee or his successors in interest] by the disturbance of an actual or constructive possession, which has been displaced by a paramount title to which the party has been compelled by law or by satisfactory proof of genuineness to submit.”—Matteson v. Vaughn, 38 Mich. 373, quoted in Rawle on Cov. (5th Ed.), p. 184, note.
There must be an eviction, actual or by construction of law. But the covenantee need not submit to the harassment and expense of a lawsuit and legal process. Acting in good faith, upon the hostile assertion of right by the true owner of the paramount title, he may yield possession or purchase the outstanding title from the adverse claimant. This, according to all the modern authorities, will amount to an eviction and establish a breach of the covenant of general warranty.—Oliver v. Bush, supra.
Plaintiff and its predecessors in interest are now, and at all times since defendant entered into his covenant have been, in the undisputed constructive possession of an undivided interest in the land. It is said for defendant that this has not- amounted to a possession, actual or constructive, of the outstanding interest, and
There is no error in the record.
Affirmed.