DECLARATIONS IN COVENANT.

1. On covenants in conveyances of lands, &c.

On a breach of covenant against incumbrances in warranty deed. Grantee v. Grantor.- The premises being mortgaged. — Quære of

the words in italics.

In a plea of covenant broken, for that the said T, on &c. at &c., by his deed of that date, duly executed, acknowledged, recorded, and in court to be produced, in consideration of the sum of $-, paid him by the plaintiff, conveyed unto the plaintiff a messuage &c. [describe the premises,] to hold to him and his heirs; and the said T did therein, among other things, covenant with the plaintiff, that the said tenements were then free of all incumbrances. Now the plaintiff in fact says, that at the time of making and executing the said deed, the said tenements were not free of all incumbrances; but the said T, before that time, viz. on &c., by his deed of that date duly acknowledged, executed, and registered, had mortgaged the said tenements to one C C for securing the payment of $100, with lawful interest to the said C C by the day of &c., which sum, with the interest thereof, is still unpaid; and the tenements aforesaid are still chargeable with the payment thereof; and so the said T, his covenant aforesaid hath not kept, but hath broken the same. F. DANA.

NOTE. If the breach of the covenants in the deed consists in the fact "that the defendant was not seized," and had no right or authority to convey, the breach may be assigned by simply negativing the covenants. But, with regard to the covenants of quiet enjoyment, and that the premises are free from all incumbrances, and that of the covenant to warrant and defend, it is necessary to assign the breach, by showing the interruption or incumbrance complained of, or showing an ouster by an elder title. See Marston v. Hobbs, 2 Mass. R. 433.

The covenant of warranty can only be broken by an ouster or eviction by elder title. Twambly v. Henley, 4 Mass. R. 441.

The grantee is not obliged to contend at law against an elder title, in order to recover on this covenant. But if he should incur expenses in the defence of his title, he will be entitled to recover those expenses against the warrantor in addition to other damages. Sumner v. Williams, 8 Mass, R. 162.

If the plaintiff, in an action for breach of a covenant against incumbrances, should extinguish an incumbrance after action brought, instead of merely nominal damages, he will recover the amount paid to ex tinguish the incumbrance. Brooks v. Moody, 20 Pick. 474.

On a breach of the covenants in a common warranty deed. · Grantee v. Administrator of grantor. The granted premises were under attachment at the execution of the deed.

For that the said S [the intestate,] at &c., on &c., being then living, by his deed of that date, duly executed, ac

knowledged, and registered, and here in court to be produced, in consideration of $100 paid him by the plaintiff, conveyed to him, his heirs and assigns forever, two acres of land, situated in &c., bounded &c, with the appurtenances. And the said S did therein and thereby, among other things, covenant, grant and engage for himself, his heirs, executors, and administrators, to and with the plaintiff, his heirs and assigns, that at and before the ensealing and delivery thereof, he was lawfully seized in fee of the said granted premises; that they were free of all incumbrances whatever, and that he had good right and lawful authority to sell and convey the same as aforesaid to the plaintiff, to hold the same as a good estate in fee simple; and that he, the said S, his heirs, executors and administrators, would warrant and defend the same to the plaintiff, his heirs and assigns forever, against the lawful claims and demands of all persons whatever. And the said plaintiff avers, that when the said S made and executed the said deed as aforesaid, he was not lawfully seized of the said granted premises in fee; that they were not free of all incumbrances whatever; and that he had not good right and lawful authority to sell and convey the same as aforesaid; but that the same were then under attachment made in due form of law, at the suit of A A, brought by him to recover a just debt due to him. from the said S, and have ever since remained under the said attachment. And so the plaintiff says, the said S, his covenant aforesaid, hath not kept, but hath broken the same, &c. N. DANE.

On a breach of covenants in a common warranty deed. Grantee v. Grantor. General breach.

For that the said D, at &c., on &c., by his deed of that date, duly executed, acknowledged, and recorded, and in court to be produce, in consideration of $100, bargained and sold to the plaintiff, a certain tract of meadow land, situate &c., bounded &c., to have and to hold the same to the plaintiff, and his heirs and assigns forever. And the said D, by the same deed, covenanted to and with the plaintiff, that at the time of the ensealing of the deed aforesaid, he, the said D, was seized in fee of the aforesaid lands, and had in himself good right and lawful authority to sell and convey the same in manner as aforesaid, and that the plaintiff from thenceforward, might, by force of that deed, lawfully possess and enjoy the same, free of all incumbrances. Now the plaintiff in fact says, that the said D, at the time of

ensealing the deed aforesaid, was not seized in fee of the aforesaid lands; nor had he good right or lawful authority to sell and convey the same in manner aforesaid; nor could the plaintiff, by force of said deed, lawfully possess and enjoy the same, free of all incumbrances, according to the said D's covenant aforesaid. And so the said D has broken his covenant aforesaid, to the damage, &c.

TROWBRIDGE.

NOTE. This breach of the covenant for quiet enjoyment and against incumbrances, is insufficiently assigned. The incumbrance or disturb ance should be specially set forth.

Against executor on a breach of covenants in a deed made by testator. By grantee. For want of title, with special damages.

For that the said A A, [testator,] in his lifetime, to wit, on &c., at &c., made, sealed, and delivered to the plaintiff, his deed-poll of that date, duly acknowledged, recorded, and in court to be produced; in which, among other things, it is witnessed, that the said A A, in consideration of $100, then paid to him by the plaintiff, did give, grant, bargain, sell, convey, and confirm unto the plaintiff and his heirs and assigns forever, the sundry tracts of land hereafter mentioned, originally granted by the inhabitants of the town of Brookfield, in our county of Worcester, to sundry persons respectively, and laid out to them accordingly, and which, when granted and laid out as aforesaid, lay in the southwest corner of said township of B, and at the time of making said deed, were, and ever since have been, within and part of the town of Weston, in our said county; to wit, one parcel of land containing &c. laid out as aforesaid to B B on the

day of &c.; another parcel &c., &c.; for the more particular boundaries of which said tracts of land, the said A A referred to the original records of the surveys thereof, in the records of the said town of B; to have and to hold the same with the appurtenances thereof to the plaintiff, his heirs and assigns, to his and their only proper benefit, use, and behoof, forever. And the said A A, by the said deed, did for himself, his heirs, executors, and administrators, covenant, promise, and grant to and with the plaintiff, that before and until the ensealing of the same deed, he, the said A A, was the true, proper, sole, and lawful owner and possessor of the said granted premises, with the appurtenances thereof; and that he had in himself, good right, full power, and lawful authority to give, grant, &c., the same, to hold, as aforesaid, and that free and clear, and freely and clearly ex

onerated, discharged, and acquitted, of and from all other gifts, grants, bargains, and incumbrances whatever; and that he, the said A A, his heirs, executors, and administrators, would warrant, secure, and defend the same to the plaintiff, against the lawful claims and demands of all other persons whatever. And the said plaintiff says, that at the time of the ensealing said deed, or at any other time, the said A A was not the true, sole, proper, and lawful owner and possessor of said granted premises, or any part thereof; and that he, the said A A, never had in himself any power to give, grant, &c., the same, or any part thereof to him as aforesaid; and that the same was not free and clear, or freely and clearly discharged and acquitted from other gifts, grants and incumbrances; but that the title and freehold in the premises, at the time of making, sealing, and delivering said deed, was in other persons, than in the said A A, by priority of right; and that after his death, and the death of C C, late of &c. deceased, who in his lifetime was executor with the said D, of the last will and testament of the said A A, one E E of &c., entered upon the aforesaid tracts of land, pretending himself to have the rightful possession thereof, and claiming the same, as his estate, and cut down and carried away the timber and wood then growing thereon, and destroyed the plaintiffs's fence erected thereon; of which the said D was well knowing; yet, though requested, he did not defend the same to the plaintiff, but suffered the same EE to continue the possession thereof, and the plaintiff thereby became obliged to and did then and there expend large sums of money in prosecuting and pursuing sundry actions. for maintaining his then supposed rightful possession of the said tracts of land, and to recover a recompense for the cutting down and carrying away said wood and timber, and for destroying the fence aforesaid; but for want of a good title as aforesaid, could not maintain the same, but finally lost said tract and acres of land, with all his trouble and expense aforesaid, amounting to -, by reason of the said A A's having no title thereto; and that he cannot hold any part of the above granted premises, for the like reason, to wit, that the said A A had not any right or title thereto, as aforesaid. And so the said A A broke his covenant; nor did the said B and D, during the life of the said B, and after the death of the said A A, keep and perform it; nor hath the said D kept and performed said covenant, since said B's death; and the breach &c. is to the damage, &c.

WORTHINGTON.

Against executors for breach of covenant in a warranty deed. grantee, the premises being subject to dower.

By

For that the said B B, in his lifetime, on &c., at &c., by his deed of that date, duly executed, acknowledged, recorded, and in court to be produced, for $100 paid him by the plaintiff, bargained and sold to him [insert the premises,] to hold to him and his heirs; and thereby covenanted to warrant and defend the same against the lawful claims of all persons, and that the plaintiff might hold and enjoy the same forever. And the plaintiff avers, that he entered thereinto accordingly, but could not hold the same free of incumbrances; neither did the said B B, in his lifetime, nor the said executors, or either of them, since his death, warrant or defend the bargained premises, according to his covenant aforesaid, though severally requested to do it; but one C C, then and ever since, being lawfully entitled to dower therein, recovered judgment therefor, and $10 costs upon her suit, against the plaintiff, at our court of &c., held at &c. on &c., and by force of our writ of execution, issued thereon, she since entered into the premises, and holds one third part thereof, legally assigned to her for her dower; so that the said testator, in his lifetime, broke his covenant; and his executors, or either of them, since his death, hath never performed the same. W. PYNCHON.

By assignee of grantee on a covenant in a deed of real estate, made by grantor. Eviction by title paramount; special damages, &c.

For that the said E, on &c., at &c., by his deed of that date, duly executed, acknowledged and registered, an attested copy whereof is here in court to be produced, for the sum of $100, bargained and sold to one H H, of &c., sundry parcels of land, to wit, [describe the premises,] to hold to him, the said H H and his heirs and assigns forever; therein among other things, covenanting with the said H H, his heirs and assigns, that he, the said E, was lawfully seized in fee of, and had good right to sell and convey the said pieces or parcels of land and buildings to the said H H, to hold in manner as aforesaid, and that he, the said E, would warrant and defend the same to the said H H, his heirs and assigns, against the lawful claims of all persons whatever. And the said H H, thereafterwards, on the same day and year last mentioned, entered into the said parcels of land. And afterwards, on &c., he, the said H H, being in the actual possession thereof, by his deed of that date, duly executed, acknowledged, recorded, and in court to be produc