35 Minn. 509 | Minn. | 1886
September 15, 1851, Patrick Cary and wife executed to Richardson a warranty deed of an undivided one-half of the premises in question. It does not appear that at that time Cary did not have the title, nor that the covenant was not fully performed by the execution of the deed. Nothing appears as to the state of the title prior to 1857, when, as the parties agree, it was in Pierre Bot-tineau, but when, how, or from whom he got it, or whether his title was adverse or subordinate to the title Cary assumed to convey, does not appear. In 1857, Bottineau conveyed to Cary and Dwyer, and defendants claim that the title, then passed to Cary, vested at once in Richardson by virtue of the warranty in the deed of 1851. It did not so vest unless the assertion of that title by Cary would have been a violation of the covenant. In an action by Richardson against Cary for a breach of it, the breach would not be shown merely by showing that Bottineau had successfully asserted against Richardson a title not shown to exist prior to 1857. To establish a breach, it would be necessary to show that Bottineau recovered by virtue of a title anterior and superior to that which Cary assumed to convey by his deed in 1851; and, if Bottineau’s recovery upon it would not have constituted a breach of the covenant, the assertion of it by Cary would not be contrary to the covenant. The covenant estops the covenantor only from subsequently asserting a title, adverse to what he assumed to convey, which, if successfully asserted, will defeat the conveyance. After the conveyance, title might arise in several ways, as by judgment sale, tax sale for taxes levied after it, and the like; the successful assertion of which would not make out a breach of the covenant, and which the covenant would not estop the covenantor to as
There was not sufficient evidence of adverse possession.
Order affirmed.
