This sec

the decedent by his will makes a different provision.93 tion applies as well to mortgages assumed by decedents as to those made by them.94 The personal estates of decedents are now liable only for deficiencies, unless the will makes different provision.95 The heir or devisee is not personally liable.96

Equitable Liens. But this section does not apply to equitable liens growing out of contracts to purchase estates by decedents.97

When Equity Compels Mortgagee to Seek Payment out of Real Estate. While the mortgagee is not precluded by this section from resorting to either real or personal estates of decedents, a court of equity will not permit him to seek payment out of the personal estate where it is inequitable.98 It has been also held that the foregoing provision of the Revised Statutes (1 R. S. 749, § 4) “requiring a devisee or heir to satisfy, out of his own property, a mortgage executed by his testator or ancestor upon real estate which has passed or descended to him, unless there is an express testamentary direction that such mortgage shall be otherwise paid, does not contemplate that the devisee or heir should be so liable irrespective of the property which descended to him, but rather that his liability to pay the mortgage should be measured by and not exceed the value. of that property. The law was designed to make the realty primarily chargeable with the mortgaged debt, and that the heir should take it cum onere. It was not, however, intended to give a mortgage creditor preference over other creditors in respect to property not covered by the mortgage." 99

93 Van Vechten v. Kealor, 63 N. Y. 52, 56.

94 Halsey v. Reed, 9 Paige, 446, 454.

95 Glacius v. Fogel, 88 N. Y. 434. 96 Hauselt v. Patterson, 124 N. Y.

349.

97 Wright v. Holbrook, 32 N. Y. 587.

98 Hauselt v. Patterson, 124 N. Y. 349; Rice v. Harbeson, 63 id. 493. 99 Hauselt V. Patterson, supra; Matter of Berry, 23 Misc. Rep. 230.

§ 251. Covenants not implied. A covenant is not implied in a conveyance of real property, whether the conveyance contains any special covenant or not.

§ 216. Covenants not implied.-A covenant is not implied in a conveyance of real property, whether the conveyance contains any special covenant or not.1

Section 216 was formerly I Revised Statutes, 738, section 140:

§ 140. No covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not.2

Common Law. In their note to this section the original revisers stated the former common law of this State very concisely:

"(1) A conveyance in fee does not, of itself, imply a covenant of title, but the word give, in such a conveyance, implied a warranty for the life of the grantor.*

"(2) The words grant and infeoff imported a warranty in an estate for years, but not in an estate in fee.5

"(3) An express covenant in the deed takes away all implied covenants."

"6

Revised Statutes. The Revised Statutes produced uniformity in the foregoing rules by the abolition of all implied covenants.7

Enactment did not Extend to Leases. At first there was doubt whether this section extended to leases, or was to be confined to other conveyances. It was finally adjudged that it did not extend to leases or executory agreements for a term exceeding three years, and that a covenant for quiet enjoyment is still implied in leases.10

1 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

2 Repealed, chap. 547, Laws of 1896.

3 Frost v. Raymond, 2 Caines, 188. 4 Id., at p. 195; Kent v. Welch, 7 Johns. 258.

5 Frost v. Raymond, 2 Caines, 188. 6 Vanderkarr V. Vanderkarr, II Johns. 122.

7 Revisers' note to IR. S. 738, $140.

8 Kinney v. Watts, 14 Wend. 38; Tone v. Brace, 8 Paige, 597; Burr v. Stenton, 43 N. Y. 462, 464; Burwell v. Jackson, 9 id. 535, 541. Sed cf. p. 190, supra, "Fees Farm."

9 Mayor, etc., of New York v. Ma

bie, 13 N. Y. 151, 158; Daly v. Wise, 132 id. 306; Gallup v. Albany Railway, 7 Lans. 471; Burr v. Stenton, 43 N. Y. 462, 464; Boreel v. Lawton, 90 id. 293. See controversy on this point treated in Rawle, Covenants, 8 272, note 3 (5th ed., p. 438), and Chapl. Landl. & Ten., chap. VIII; also 3 Columbia Law Rev. 43. Cf. Zorkowski v. Astor, 156 N. Y. 393; Smith v. Barber, 96 App. Div. 236; Flannery v. Simons, 47 Misc. Rep. 123; Scheffler Press v. Perlman, 130 App. Div. 576, 578.

10 Mack v. Patchin, 42 N. Y. 167, 171, 174; Hyde v. Wilmore, 14 Misc. Rep. 340; Conley v. Schiller, 24 N. Y. Supp. 473.

This decision is not reopened by the re-enactment of this article. of this act. Section 240 declares that the term "conveyance," as used in this article, includes every instrument, except a will, by which any estate or interest in real property is created, transferred, assigned or surrendered; and the qualifying section on which the decision rests is re-enacted.11 A lease in perpetuity," as a conveyance in fee, subject to a rent charge, is called in this State,12 is, however, really a conveyance and within this section.13

Lease with Express Covenants. When a lease contains an express covenant no covenant on the same subject will be implied.14

Purchasers must now see to Insertion of Appropriate Covenants. As covenants are not now implied in conveyances, the law throws upon purchasers the responsibility of protecting themselves by the insertion of proper covenants in deeds.15

Certain Words no Longer Import Covenants. The words "dedi," "concessi," "demisi," and their English equivalents, no longer import covenants in conveyances as they did at common law.16 At common law these words in themselves imported and made a covenant in law,17 as if a man, by deed, demised land for years, and the lessee was ousted, covenant lay upon the word "demised." 18 It was said in Kinney v. Watts, no doctrine was better settled, and it was this doctrine which the Revised Statutes designed to abrogate.19

Covenants in Mortgage. A covenant to repay the debt is not implied in a mortgage;20 nor is a covenant of warranty or seisin implied to support an estoppel.21

11 § 2, Real Prop. Law, re-enacting I R. S. 750, $ 10.

12 Supra, p. 194.

13 Carter v. Burr, 39 Barb. 59. 14 Burr v. Stenton, 43 N. Y. 462, 464.

15 Leggett v. Mut. Life Ins. Co., 53 N. Y. 394, 398; Sandford v. Travers, 40 id. 140; Burrell v. Jackson, 9 id. 535, 541; Read v. The Erie Railway Co., 97 id. 341, 348.

16 Kinney v. Watts, 14 Wend. 38. 17 Comyn, Dig., tit. Cov., art. 4. 18 Elphinstone, Interpretation of Deeds, 423.

19 Kinney v. Watts, 14 Wend. at p. 40.

20 8 249, Real Prop. Law.

21 Donovan v. Twist, 85 App. Div. 130; s. c., 105 id. 171; Thompson v. Schenectady Ry. Co., 124 Fed. 274.

§ 252. Lineal and collateral warranties abolished. Lineal and collateral warranties, with all their incidents, have been abolished; but the heirs and devisees of a person, who has made a covenant or agreement, are answerable thereon, to the extent of the real property descended or devised to them, in the cases and in the manner prescribed by law.

Formerly section 217, Real Property Law of 1895, chapter XLVI, General Laws:

§ 217. Lineal and collateral warranties abolished.— Lineal and collateral warranties, with all their incidents, have been abolished; but the heirs and devisees of a person, who has made a covenant or agreement, are answerable thereon, to the extent of the real property descended or devised to them, in the cases and in the manner prescribed by law.22

Section 217 was formerly 1 Revised Statutes, 739, section 141:

§ 141. Lineal and collateral warranties, with all their incidents, are abolished; but the heirs and devisees of every person who shall have made any covenant or agreement, shall be answerable upon such covenant or agreement, to the extent of the lands descended or devised to them, in the cases and in the manner prescribed by law.23

Warranties at Common Law. A warranty, by the common law, is a covenant real annexed to lands or tenements, whereby a man and his heirs are bound to warrant the same.2 24 Warranties were divided into three classes- lineal, collateral and those that commenced by disseisin.25 By lineal warranty was meant the lineal heir's legal obligation to give to the ancestor's warrantee lands of equal value (in case the warranty was broken) out of other real assets if he received any.26 Collateral warranty was founded on a fiction by which the collateral heir was presumed to have assets and was made liable in like manner.27 Collateral warranties were restricted long before the Revised Statutes abolished them.28

The Revised Statutes. The Revised Statutes abolished both lineal and collateral warranties with all their incidents, but regulated

lineal warranties, or the heir's obligations for the ancestor's warranty, by appropriate provision of the statute.20

Statute of Limitations.

The heir mav avail of the Statute of Limi

tations to the same extent that the ancestor might, in an action.30

292 R. S. 109, § 53; id. 452; id. 453; Revisers' note to 1 R. S. 739, § 141; Hill v. Ressegieu, 17 Barb.

162, 168; Trolan v. Rogers, 88 Hun, 422; Pyatt v. Waldo 85 Fed. 399.

30 Pyatt v. Waldo, 85 Fed. 399.