Salmon v. Vallejo, No. 2,544

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No. 2,544 | Cal. | Jul 1, 1871

Lead Opinion

By the Court, Crockett, J.:

One of the grounds of demurrer to the complaint was that it does not state facts sufficient to constitute a cause of action, and in support of this ground it is urged that the covenant sued upon was a personal covenant, and does not run with the land. This point is well taken. A covenant of seizin, or that the grantor has lawful right to convey, or that the land is free from incumbrances, is a personal covenant, and when broken is broken as soon as made. The right of action upon it is a mere chose in action, and does not run with the land. (Lawrence v. Montgomery, 37 Cal. 188.) A covenant that the tract conveyed, or that the grant under which it is held includes a specified quantity, stands on the same footing, and is broken as soon as made. It either did or did not contain the stipulated quantity, and the tact could not be changed by anything which subsequently transpired. The difficulty of ascertaining the fact does not touch the question of the nature of the covenant. If the deficiency could not be ascertained except by a final official survey under the decree of confirmation, that fact might possibly prevent the statute of limitations from running until the survey was made, though on this point I express no opinion. But the nature of the covenant remains the same, and is not affected by the fact that there was no proof by which the breach of it could *485be established until the final survey was made. The breach existed as soon as the covenant was made; but the proof to establish it may not have been attainable until the final survey. The same difficulty might arise under a covenant of seizin, or against incumbrances, which, it is well settled, are personal covenants not running with the land. (Lawrence v. Montgomery, supra, and cases there cited.) For precisely the same reasons, the covenant in this case was a personal covenant, and the cause of action for a breach of it did not pass to the plaintiffs under the deeds to them from the original grantees.

Judgment affirmed.

Concurrence Opinion

Wallace, J., concurring specially:

I concur in the judgment.