The word "appurtenance" is properly confined to things of an incorporeal character, such as easements or profits a prendre, and a conveyance of land "with the appurtenances" will not pass land other than that described, on the theory that it is appurtenant thereto, or, as the rule is usually expressed, "land cannot be appurtenant to land."227 The word "appurtenances" may, however, it appears, be shown not to have, in the particular case, its legal meaning, but to be used in a different sense, such as "usually enjoyed with," and so to pass land other than that specifically described. 228 So, the word "appurtenances" will not usually extend the scope of the conveyance so as to include things of a chattel character, which are not legally part of the land conveyed,220 but they may, it has been held, be shown to have been intended to be covered by the term.280

Allen (Mass.) 293; State v. Burke, 66 Me. 127; Cunningham v. Webb, 69 Me. 92. But in these cases the effect would, it seems, under the rule previously stated (see note 387), have been the same if the conveyance had contained no reference to the "appurtenances."

227 Co. Litt. 121b; Harris v. Elliott, 10 Pet. (U. S.) 25; Humphreys v. McKissock, 140 U. S. 304; Leonard v. White, 7 Mass. 8, 5 Am. Dec. 19, 3 Gray's Cas. 282; Woodhull v. Rosenthal, 61 N. Y. 382; Ogden v. Jennings, 62 N. Y. 526; St. Louis Bridge Co. v. Curtis, 103 Ill. 410; Warren v. Blake, 54 Me. 276, 89 Am. Dec. 748; Wilson v. Beckwith, 117 Mo. 61; Oliver v. Dickinson, 100 Mass. 114; Cole v. Haynes, 22 Vt. 588.

228 See Elphinstone, Interpret. of Deeds, 188; Hill v. Grange, 1 Plowd. 164; Whitney v. Olney, 3 Mason, 280, Fed. Cas. No. 17,595; Hearn v. Allen, Cro. Car. 57; Thomas v. Owen, 20 Q. B. Div. 225; Hill's Lessee v. West, 4 Yeates (Pa.) 142; Ammidown v. Granite Bank, 8 Allen (Mass.) 285.

229 Ottumwa Woolen Mill Co. v. Hawley, 44 Iowa, 57, 24 Am. Rep. 719; Frey v. Drahos, 6 Neb. 1; Scheidt v. Belz, 4 Ill. App. 431.

280 Redlon v. Barker, 4 Kan. 445; Badger Lumber Co. v. Marion Water Supply, Electric Light & Power Co., 48 Kan. 182, 30 Am. St. Rep. 301; Gorham v. Eastchester Electric Co., 31 Abb. N. C. 198, 29 N. Y. Supp. 1094.

IV. COVENANTS FOR TITLE.

The conveyance usually contains one or more covenants by the grantor as to the validity of the title sought to be conveyed, on which, in case of failure of title, the grantee has a right of action for damages. The recognized covenants are (1) for seisin, (2) for right to convey, (3) against incumbrances, (4) for quiet enjoyment,' (5) of warranty, and (6) for further assurance.

Covenants for seisin and right to convey, which are substantially equivalent, constitute in some states merely a contract that the grantor has seisin of the land, but more usually they are regarded as a declaration that he has the estate which he undertakes to convey.

The covenant against incumbrances is usually in effect a contract that there is no outstanding lien, interest, or right which may affect the value of the land, although a fee-simple estate passes by the conveyance.

The covenants for quiet enjoyment and of warranty are equivalent, and are contracts that the grantee will not be evicted by title paramount, or by the act of the grantor.

The covenant for further assurance is a contract to execute any instrument necessary to perfect the title.

The benefit of covenants for quiet enjoyment, of warranty, and for further assurance runs with the land. In a number of the states of this country, though not in all, the benefit of the other covenants does not so run.

In most conveyances of land there are one or more covenants by the grantor as to the title to the premises, under which the grantee may, in case of failure of title, obtain indemnity in damages. These covenants are of certain recognized classes, having, as a rule, fixed legal effects, though these may be varied by the construction placed upon the covenant in the particular case. 281

231 See Rawle, Covenants for Title, § 57. The following outline

In the earlier stages of the common law no such personal covenants were recognized, but the feoffment was usually attended with a "warranty." This common-law warranty, which, taking its origin in the obligation of the feudal lord to protect the holding of his tenant, continued, even after the statute of Quia Emptores, to be a usual incident of a feoffment, was in its nature a "covenant real,"—that is, compensation for its breach was awarded, not in damages, but in kind, by a judgment in favor of the warrantee or his heirs, against the original warrantor or his heirs, for the recovery of other lands equal in value to those of which the warrantee had been deprived. A warranty, operating, as it did, against the heir of the warrantor, was, after the statute De Donis and before the decision in Taltarum's Case, utilized for the purpose, in particular cases, of barring estates tail, and in the efforts to extend its effectiveness in this direction the law of the subject was immensely extended and complicated.232 The remedy on a warranty was available only in connection with freehold estates, and consequently, if the warranty was attached to a term of years, or if the grantee of a freehold estate was evicted for a term, the warrantee could not recover.288 In the later history of the subject, however, there was a relaxation of this rule to the extent that when, in such a case, the warranty failed as a covenant real, it might be construed as a personal covenant on which an action for damages might be brought.234

After the introduction of conveyances under the Statute of Uses, warranty, which was in its origin associated with

of the law of covenants for title is based almost entirely upon this most admirable work.

282 See Rawle, Covenants, c. 1, where the nature of warranty at common law is clearly stated. See, also, 1 Smith, Lead. Cas. Eq. (8th Ed.) 213, American notes to Spencer's Case.

238 Rawle, Covenants, §§ 12, 113; 1 Smith, Lead. Cas. Eq. 214. 284 Pincombe v. Rudge, Hob. 3g; Williams v. Burrell, 1 C. B. 402.

the transfer by feoffment, was gradually supplanted by personal covenants, the purpose of which was to give a remedy in damages against the covenantor in case of failure of title, and which were available in connection with leasehold, as well as freehold, estates, and warranty was finally abolished by statute in England in the nineteenth century.2

235

In this country, settled after the common-law warranty had lost, to a considerable extent, its importance in England, that method of securing the grantee against loss from failure of title was never, to any extent, utilized, but the law of personal covenants for title has been developed and extended to a greater extent even than in England, where the particularity with which intending purchasers examine the title has rendered them comparatively superfluous.

By statute in some states, certain covenants for title are implied from the use of particular operative words in a conveyance, usually "grant, bargain, and sell," and occasionally a covenant in form one of warranty merely is by statute declared to imply certain other covenants for title.230

The covenants of title considered in the following sections are "general" covenants,—that is, they are in terms sufficient to protect the covenantee against the claims of all persons whomsoever. Covenants may be, however, and frequently are, "special" in character,-that is, they are so expressed as to afford protection against the acts of the covenantor only, or of persons claiming under him.237

$395. Covenant for seisin.

The covenant by the grantor that he is lawfully seised of the premises, called the "covenant of seisin," has different

285 See Rawle, Covenants, §§ 9-14.

286 Rawle, Covenants, §§ 285-287; 1 Stimson's Am. St. Law, { 1501.

227 Rawle, Covenants, §§ 28, 29, 126.

effects in different jurisdictions. "Seisin" originally, as before stated, meant the possession of land by one having or claiming a freehold estate therein, either by himself or by another in his behalf.238 This meaning of "seisin" has been adopted in two or three states in determining the effect of the covenant, and the covenant is there regarded as a declaration by the grantor that he is in possession, claiming such title as he undertakes to convey, which is accordingly satisfied by his claim of title, and is not broken by the fact that he has not such title, though it is broken if another is in adverse possession of the land.239 The covenant, thus limited in effect, may nevertheless be of very great advantage to the grantee in states which still recognize the doctrine that a conveyance of land in the adverse possession of another is void;240 and this construction of the covenant presumably owes its origin to the recognition by the courts of the probability that it was intended to secure the grantee against the possible failure of the conveyance for this cause.241 In the majority of states, however, as in England, the covenant is construed with reference to the meaning which the words "seisin" and "seised" acquired after the Statute of Uses,242 and it amounts to a covenant that the grantor has the estate, in quantity and quality, which he purports to convey. Ac

248

289 Marston v. Hobbs, 2 Mass. 439, 3 Am. Dec. 61; Raymond v. Raymond, 10 Cush. (Mass.) 134; Cushman v. Blanchard, 2 Me. 268, 11 Am. Dec. 76; Wilson v. Widenham, 51 Me. 566; Backus' Adm'rs v. McCoy, 3 Ohio, 211, 17 Am. Dec. 585; Stambaugh v. Smith, 23 Ohio St. 584; Wetzell v. Richcreek, 53 Ohio St. 62.

240 See post, § 498.

241 Rawle, Covenants, §§ 47-54.

842 Ante, § 15.

248 Parker v. Brown, 15 N. H. 186; Catlin v. Hurlburt, 3 Vt. 407; Lockwood v. Sturdevant, 6 Conn. 385; Greenby v. Wilcocks, 2 Johns. (N. Y.) 1, 3 Am. Dec. 379, 3 Gray's Cas. 598; Real v. Hollister, 20 Neb. 112; Woods v. North, 6 Humph. (Tenn.) 309, 44 Am. Dec. 312; Pringle v. Witten's Ex'rs, 1 Bay (S. C.) 256, 1 Am. Dec. 612.