Memmert v. McKeen

Mr. Justice Paxson

delivered the opinion of the court, April 19th, 1886.

The deed from Henry McKeen to Babétta Memmert contained the usual clause of special warranty, as also the words “doth grant, bargain, sell,” &c. By the sixth section of the Act of 28th May, 1715, it is provided that “ all deeds to be recorded in pursuance of this Act, whereby any estate of inheritance in fee simple shall hereafter be limited to the grantee or his heirs, the words grant, bargain, and sell, shall be adjudged an express covenant to the grantee, his heirs and assigns, to wit, that the grantor was seised of an indefeasible estate in fee simple, freed from incumbrances done or suffered from the grantor-, excepting the rent and services to the lord of the fee, as also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by express words contained in such deed; and the grantee, his heirs, executors and administrators and assigns may, in any action, assign breaches as if such covenants were expressly inserted,” &c., &c.

By virtue of this Act the words “grant, bargain and sell,” contained in the deed, are a covenant of seisin, a covenant for quiet enjoyment, and a covenant against incumbrances. If, as was alleged, there was an incumbrance against the property ah the time of the sale by Henry McKeen to Babetta Memmert, the covenant against incumbrances was broken as soon as made: Cathcart v. Bowman, 5 Pa. St. Rep., 317.

Incumbrances are of two kinds, viz., 1. Such as affect the title; and 2. Those which affect only the physical condition of the property. A mortgage or other lien is a fair illustration of the former; a public road or a right of way, of the latter. Where incumbrances- of the former class, exist, the covenant referred to, under all the authorities, is broken the instant it is made, and it is of no importance that the grantee had notice of them when he took the title: Cathcart v. Bowman, supra; Funk v. Voneida, 11 S. & R., 109. Such incumbrances are usually of a temporary character and capable of removal; the very object of the covenant is to protect the vendee against them; hence knowledge, actual or constructive, of their existence, is no answer to an action for breach of such covenant. Where, however, there is a servitude imposed upon, the land which is visible to the eye, and which affects not title, but the physical condition of the property, a different rule prevails. Thus it was held in Patterson v. Arthurs, 9 Watts, 152, that where the owner had covenanted to convey certain lots free from all incumbrances, a public road, which occupied a portion of sucli lots, was not an incumbrance within the meaniug of the covenant. This is not because of any right acquired by the public, but by reason of the fact that the road, although admittedly an incumbrance, and possibly an injury to the property, was there when the purchaser bought, and .he is presumed to have had knowledge of it. In such and similar cases there is the further presumption that if the incumbrance is really an injury, such injury was in the contemplation of the parties, and that the price was regulated accordingly. It was said by Justice Kennedy, in the case cited, “ Although a public highway no doubt is, in many instances, an injury instead of a benefit to the holder or owner of the land upon which it is located, and therefore tends to lessen its value in the estimation of a purchaser, yet it is fair to presume that every purchaser, before he closes his contract for his purchase of land, has seen it, and made himself acquainted with its locality and the state and condition of it, and, consequently, if there be a public road or highway open or in use upon it, he must be taken to have seen it, and to have fixed in his own mind the price that he was willing to give for the land, with a reference to the road, either making the price less or more, as he conceived the road to be injurious or advantageous to the occupation and enjoyment of the land.” See also Wilson v. Cochran, 48 Pa. St. Rep., 107. In the case of Kutz v. McCum, 22 Wins., 628, the land conveyed had been for a time, long enough to create a presumptive right, flooded by a mill pond created”by a dam on adjoining property, and it was held that the right of flooding was not an incumbrance within the covenant; that purchasers of property which was obviously and notoriously subject at the time to some easement or servitude affecting its physical condition, take it subject to such right without any express exceptions in the conveyance, and that vendors are not liable on their covenant by reason of its existence. “ This principle,” said the court, “ has been applied in the case of a highway opened and in use on the land, at the time of the conveyance.....seems fully applicable to the present case. There is no material difference, so far as this question is concerned, between a public highway and a right of flowing the land by a mill pond in actual existence upon it. In the ease of a highway the doctrine does not rest upon the fact that the right is in favor of the public, but that the easement is open and. notorious in its character, and that, therefore, the purchaser must be presumed to have seen it, and to have fixed his price for the land with reference to the actual condition at the time.”

In the case in hand the alleged incumbrance consists of stone steps belonging to the adjoining house, and so constructed as to occupy a portion of the sidewalk in front of plaintiffs’ house. Both houses had originally belonged to the defendant below. . With the steps in this condition he sold one of' the houses to John Reilly in 1865, by a deed containing this clause: “Together with the right to the said John Reilly,' his heirs and assigns, to keep and maintain the front steps to said brick dwelling house as they "are now erected.” This fixed the servitude on. the brick dwelling house as.against Mclveen, his heirs and assigns. McKeefi sold said house to the plaintiff, as before stated, December 1st, 1866. The steps were then in existence, plainly visible to the eye, and a servitude upon the property, even if the deed to Reilly had contained no such stipulation. The husband of the plaintiff, as the agent, bought the house, examined it before doing so, and therefore took it with his eyes open to the servitude. It was a physical condition of the property, notorious in its character, and affecting its value, and, under all the authorities, we must presume the price to have been fixed with reference to it. If a recovery can now be had in damages under the covenant against incumbrances, the plaintiff will be twice paid. Further, the street in front of the house is as much an incumbrance, for anything we can see, as the steps upon' the sidewalk, yet no one at this day will seriously contend that a public street, occupying a portion of a lot on which a house is erected, is an incumbrance within the meaning of the covenant of general warranty or the Act of 1715.

We find no error in this record.

Judgment affirmed.