Innes v. Agnew ( 1824 )

By the Court:

The usual or common covenant of seizin stipulated that the grantor in the deed was seized of a good and sufficient title, and had right and authority to sell and convey. This covenant was in the-present tense, and if the fact was contrary to the stipulation, the agreement was violated as soon as made, and a right of action arose immediately. The common covenant of general warranty is in the future, that the grantor will warrant and defend the title. Courts of justice doubted whether the grantor could be called upon to perform this covenant, while the grantee was permitted to hold possession under the grant. The evil of this principle was, that it the title was defective, and the person who had better title chose to lie still, the grantee could do nothing for his future protection and security. To remedy this mischief the statute was enacted. The mischief did not exist where the deed contained a covenant of seizin in the usual form. If the grantee covenanted that his title was indefeasible, when it was not, or that he had right to sell when he had not, or that he was seized of a good title, when his title was defective, the grantee could have immediate remedy. If his deed contained those covenants which usually accompanied the covenants of seizin, as part of it, his case required no statutory provision. And it would be one to which the terms of the statute do not extend. It is neither within the mischief, nor the-letter. And it would be unwarrantable to include it.

The second breach is not well assigned upon common law principles. The court consider the law to be settled, that the breach ought to allege an eviction under a. superior or better title to maintain an action upon the common covenant of general warranty. And it is also their opinion that the case is not within the provisions of the statute. The damages assessed are upon the, three last counts; the judgment must, therefore, be reversed, and judgment given for the defendant upon the demurrer to the second breach.