Haran v. Stratton , 120 Ala. 145 ( 1897 )

HEAD, J.

Action of damages for breaches of covenants of several deeds to real estate.

The deed first mentioned in the complaint contained the statutory words “grant,” “bargain” and “sell,” and it is further averred that it contained also a covenant that the premises were free from incumbrances. The breach assigned’is that the A. G. S. R. R. Co. (a third party) “had the paramount and lawful right and title to a portion of said lots of the uniform width of 25 feet off the southern end of the same, to the hostile assertion of which paramount title, plaintiff has been compelled to yield.”

The same is true as to each of the other deeds.

It is clear these assignments of breaches show no breach of the covenants against incumbrances. They show paramount outstanding titles to the specified 25 feet in the railroad company, and hence, must be taken to refer to the statutory covenants of warranty implied in the words “grant,” “bargain” and “sell,” intending to allege breaches of those covenants.

There was no evidence tending to show that the railroad company had any such title, as alleged. The most the plaintiff undertook to prove was the existence- of an easement — a right of way — upon the specified portion of the lots in said company. There was,- therefore, a variance between the allegations and the proof.—Moore v. Johnston, 87 Ala. 220.

The defendants Hillman and Morris, did not execute the deeds, were not covenantors and, of course, could not properly be sued upon the covenants.

Affirmed.