Bahrenberg v. Rhoads

Opinion by

Head, J.,

The plaintiffs appeal from an order of the learned court below discharging a rule for judgment for want of a sufficient affidavit of defense. Their claim rests upon the alleged breach of a covenant contained in a deed in which the defendants were the grantors, the plaintiffs the grantees. The breach arose, as it is claimed, when there was an adverse recovery from the plaintiffs of a small portion of the land described and conveyed in the said deed. The defense set up is that the deed' referred to contained no covenant of warranty, either general or special, and that the alleged covenant relied on was nothing more than a recital describing the origin and source of the title claimed by the grantors which they undertook to. convey.

After argument of the rule, the learned court below in a careful opinion filed held there was no such covenant contained in the deed as that on which- the plaintiffs relied and clearly pointed out the radical 'difference between such a covenant and a mere recital descriptive of the extent, the source or the character of the title which the deed purported to convey. The gist of the opinion filed is contained in the following quotation from it: “The inclusion in the recital of title that the title to a part of it had been obtained by an adverse possession cannot, in our opinion, be construed into an agreement in law to maintain the same, and especially is this so when we consider that title by adverse possession is conceded to the holder thereof for the sake of peace and to quiet title, although oftentimes it has been obtained under wrongful conditions. There was no express covenant in the deed mentioned to maintain this title. The grantees, by the statement in the recital, were put upon notice as to how the title was obtained and held, and it was within their power to have demanded a proper covenant.” Many supporting authorities are cited in the opinion of the learned court below and still more in the able brief furnished by the counsel for the appellees.

After a careful examination of the briefs and authorities, we are all of the opinion the plaintiff presented no case justifying the entry of a summary judgment. The assignments of error are therefore overruled.

The order discharging the rule is affirmed.