may recover of his warrantor the damage he has sustained in consequence of the breach of the covenant against incumbrances, and such costs and expenses as he has fairly and in good faith incurred in attempting to maintain and defend his title: Smith v. Sprague, 40 Vt. 43. He was not bound to follow the advice of his warrantor, by suing the party who claimed the easement and entered upon the premises: Id. "There is," says Lord Mansfield, in Lowe v. Peers, "a difference between covenants in general and cov enants secured by a penalty or forfeiture. In the latter case the obligee has his election; he may either bring an action of debt, and recover the penalty, after which recovery of the penalty he cannot resort to the covenant; or, if he does not choose to go for the penalty, he can proceed upon the covenant, and recover more or less than the penalty toties quoties:" Sedg. on Dam. 424; see 4 Burr. 2225; also, Bird v. Randall, 1 W. Black. 373, 387; Winter v. Trimmer, 1 Id. 395; Harrison v. Wright, 13 East, 343. The use and meaning of the terms "penalty" and "liquidated damages" in agreements, commented on, in People v. Love, 19 Cal. 677.

26. Description of Land Conveyed.-A brief description will be sufficient with profert of conveyance: 1 Saund. 233, n. 2; 2 Chitt. Pl. 192, n. i; Dunham v. Pratt, 14 Johns. 372.

27. Estoppel.--One who has covenanted with executors, as such, that third persons should satisfy and discharge a mortgage, is thereby estopped from denying the right of executors to sue on such covenant in their representative capacity: Farnham v. Mallory, 5 Abb. Pr. (N. S.) 380. But a subsequent grantee may maintain an action against the grantor on a covenant: Colby v. Osgood, 29 Barb. 339.

28. Incumbrances.-The term "incumbrances "includes taxes, assessments, and all liens upon property: Civil Code (Cal.) sec. 1114. No tax or assessment can exist until the amount thereof is ascertained and determined. Hence, although the expense has been incurred at the time of conveyance, to meet which a local assessment is subsequently laid upon the premises conveyed which are legally chargeable therewith, such assessment does not constitute a breach of the covenant against incumbrances: Dowdrey v. Mayor, etc., 54 N. Y. 186; see De Peyster v. Murphy, 39 N. Y. Supr. (7 J & Sp.) 255. Only nominal damages can be recovered until after actual payment of the incumbrance: Reading v. Gray, 37 Id. 79; see, also, Blythe v. Gately, 51 Cal. 236, as to when taxes become a lien.

29. Judgment Liens.-That certain persons recovered judgment against the owner, which were liens and incumbrances, is sufficient, without stating the fact of docketing said judgment, or its legal effect: Cady v. Allen, 22 Barb. 388; see, also, Chamberlain v. Gorham, 20 Johns. 746; reversing S. C., Id. 144. A covenant that the whole amount of a judgment is due, is not to be construed to mean that no one of the judgment debtors has been released: Bennett v. Buchan, 5 Abb. Pr. (N. S.) 412.

30. Legal Effect. When an action is brought on the breach of a covenant in the contract, it is enough to allege the conveyance according to its legal effect, showing a consideration for the covenant, and then set forth a copy of the covenant (Swan on Pl. 198); thus combining the two systems of pleading for the sake of brevity. This method will be desirable when the contract is of great length. So, in a covenant to pay certain accounts, it is not necessary to set out the accounts so paid, thereby producing great prolixity: Jones v. Hurbaugh, 5 N. Y. Leg. Obs. 19.

31. Payment.—Without the averment of payment of the incumbrance, plaintiff can recover only nominal damages: Delavergne v. Norris, 7 Johns. 358; Hall v. Dean, 13 Id. 105; Stanard v. Eldridge, 16 Id. 254. Except in the case of a covenantee who bought for the purpose of a re-sale, with notice to the covenantor at the time of sale: Bachelder v. Sturgis, 3 Cush. 201. In such a case those facts, and the diminution in value of the estate, and the expenditure in paying off the incumbrance, should be alleged, the latter as a special averment of damage: De Forest v. Leete, 16 Johns. 122.

32. Purchase after Breach.—A purchaser of a mill, after breach of covenant by a railroad company, with its former owner, to dig a new channel, etc., for the mill stream, cannot sue on said covenant: Junction R. R. Co. v. Sayers, 28 Ind. 318. Defendant made a valid agreement with three partners not to do business in a certain place. Two of said partners sold out to a third, and left said place. The third re-sold to defendant, and released said agreement: Held, that the other two partners could not sue for a breach, as the agreement was incident only to the business: Gompers v. Rochester, 56 Penn. St. 194.

33. Sufficient Averments.-Where a complaint avers a sale and conveyance, the existence of the mortgage, the execution of the bond, the failure of the defendant to comply with its conditions, and consequent sale of the premises under the mortgage, and their loss to the plaintiff, it was held sufficient on demurrer: McCarty v. Beach, 10 Cal. 461. And consideration need not be alleged, as in pleading on a sealed instrument the seal imports consideration.

34. To what Covenant Attaches.-Every covenant relating to the thing demised attaches to the land, and runs with it: Laffan v. Naglee, 9 Cal. 662. But where the warranty in a deed contains a covenant to "warrant and defend the premises conveyed, from and against all or any incumbrances, claims, or demands, created, made, or suffered, by, through, or under him, and against none other," the warranty in the deed attaches itself to the interest conveyed, and not to the land itself: Kimball v. Semple, 25 Cal. 440. A covenant of seisin runs with the land, and is divisible, so that if the land be sold in parcels to different purchasers, each may maintain an action on the covenant: Schofield v. The Homestead Co., 32 Iowa, 317. Where the covenantee, in a deed of land, takes possession and conveys, a covenant of warranty in the deed to him will pass to his grantee, although the covenantor was not in possession at the time of his conveyance: Weed v. Larkin, 54 Ill. 489. A covenant to convey, contained in a lease, runs with the land and may be assigned: Hagar v. Buck, 44 Vt. 285. When covenant to make and maintain fence runs with the land, see Bronson v. Coffin, 108 Mass. 175.

No. 263.

viii. The Same, where the Deed Expressed a Specific Incumbrance.
[TITLE.]

The plaintiff complains, and alleges:

I. [As in preceding Form.]

II. That by said deed the premises conveyed were described as being subject, nevertheless, to the payment of a certain mortgage recorded in the recorder's office at

on the .... day of 187., in Book A of mortgages [or other incumbrance, describing it], and no other incumbrances were mentioned or specified in said deed, as existing upon, or affecting, said premises or the title. thereto.

III. That said deed contained a covenant on the part of the defendant, of which the following is a copy [copy cov enant].

IV. That at the time of the making and delivery of the said deed, the premises were not free from all incumbrances other than the mortgage therein excepted, but on the contrary [here set out any or all other incumbrances as breaches, and conclude as in preceding Form].

[Demand of Judgment.]

35. Implied Covenant.—Where a deed containing the words "grant, bargain, and sell," recites a mortgage existing at the time of the conveyance, with a warranty against the same, the general covenant implied by the words, "grant, bargain and sell," is restrained by the special covenant: Shelton v. Pease, 10 Mo. 473. And the special covenant is not a covenant to pay the mortgage.

36. Mortgage. -When premises are described in the granting part of a deed as subject to a mortgage, such mortgage will not be in the covenant against incumbrances: Freeman v. Foster, 55 Mo. 508. A covenant by a vendor of real estate, that neither he nor his assigns will sell any marl from the adjoining premises, will not be enforced in equity against the alienee of the land intended to be burdened with the covenant: Brewn v. Marshall, 4 C. E. Green, 537.

No. 264.

ix. On a Covenant of Seisin, or of Power to Convey. [TITLE.]

The plaintiff complains, and alleges:

I. That on the ...... day of .....

187., the de

fendant, for a valuable consideration, by deed, conveyed to the plaintiff in fee-simple [describe the property].

II. That said deed contained a covenant on the part of the defendant, of which the following is a copy [copy of covenant].

III. That at the time of the execution and delivery of said deed, the defendant was not the true, lawful, and rightful owner, and had not in himself at said time good right, full power, etc. [negative the words of the covenant.]

IV. Whereby the plaintiff has sustained damage in the dollars.

sum of

[Demand of Judgment.]

37. Covenants not Implied. Where there are no covenants of seisin, etc., in the deed, the law will not imply other covenants than those for quiet possession: Fowler v. Smith, 2 Cal. 39.

38. Breach and Eviction must be Alleged.-An action cannot be maintained on a covenant of seisin, unless a breach and an eviction be alleged: Robinson v. Neil, 3 Ohio, 525; King v. Kerr's Adm'r, 5 Ohio, 155. When there has not been an eviction, something equivalent must be averred: Id.; McGary v. Hastings, 39 Cal. 360.

39. Damages, Measure of.—Where the grantor, in a deed containing a covenant of seisin, has no title to the land, the covenant is broken the instant it is made: Nichols v. Nichols, 5 Hun. 108. Such a covenant is an assurance to the purchaser that the grantor has the estate both in quantity and quality: Pecare v. Chouteau, 13 Mo. 527. But where the vendor was actually seised, but of a defeasible estate, the damages should be merely nominal until the estate has been actually defeated: Reese v. Smith, 12 Mo. 344; Bircher v. Watkins, 13 Mo. 521; Mosely v. Hunter, 15 Mo. 322; see, also, Cowdery v. Coit, 44 N. Y. 382. The rule of damages, where there has been an actual loss of the premises, is the purchase money and interest. Where the plaintiff has purchased the paramount title, it is the sum actually and in good faith paid for the paramount title, and the amount expended in defending his possession; provided such damages shall in no case exceed the purchase money and interest: McGary v. Hastings, 39 Cal. 360.

40. Death of Covenantor.-Where the covenantor dies before the discovery of the defect of title, and his personal representatives procure a good title, and tender a deed to the covenantee, a court of equity will compel him to accept such conveyance, and enjoin a judgment at law for a breach of the covenant: Reese v. Smith, 12 Mo. 344.

41. Essential Averments.-In an action of covenant, it must appeal in the complaint with whom the covenant was made, the performanee or readiness to perform, or the excuse for non-performance of a condition precedent, at the place and within the time specified: Keatley v. McLaugherty, 4 Id. 221.

42. Implied Covenants.-A deed containing the words "grant, bargain, sell, and enfeoff," is operative as a deed of feoffment, and livery of seisin is not necessary: Perry v. Price, 1 Mo. 553. And under the statute of Missouri, it was held that they are separate and independent of each other: Alexander v. Schreiber, 10 Mo. 46. In Illinois, the words "grant, bargain, and sell," express covenants that the grantor is seised of an indefeasible estate in fee-simple, free from incumbrances done or suffered by the grantor, as also for quiet enjoyment against the grantor, his heirs and assigns: Mosely v. Hunter, 15 Mo. 322. It embraces such incumbrances only as the vendor has control of, and not an outstanding mortgage created by his grantor: Armstrong v. Darby, 26 Mo. 517. In California, the Civil Code provides that "from the use of the word grant in any conveyance by which an estate of inheritance or fee-simple is to be passed, the following covenants, and none other, on the part of the grantor, for himself and his heirs to the grantee, his heirs and assigus, are implied, unless restrained by express terms in such conveyance: 1. That previous to the time of the execution of such conveyance, the grantor has not conveyed the same estate, or any right, title, or interest therein, to any person other than the grantee; 2. That such

estate is at the time of the execution of such conveyance free from incumbrances done, made, or suffered by the grantor, or any person claiming under him. Such covenants may be sued upon in the same manner as if they had been expressly inserted in the conveyance:" Sec. 1113.

43. Negative the Words of the Covenant. It is sufficient to negative the words of the covenant: 4 Kent's Com. 479; Rickert v. Snyder, 9 Wend. 416. It is not necessary that a breach of a covenant should be assigned in the very words of the covenant. It is sufficient to aver what is substantially a breach: Fletcher v. Peck, 6 Cranch, 87.

The plaintiff complains, and alleges:

I. That in consideration that the plaintiff would sell and convey to the defendant a lot of land [describe it], for the sum of dollars, the defendant, on the ..... day of.... 187., agreed that he would erect upon the premises a good brick house, to be occupied as a dwelling, and that he would not erect upon the premises any building that would be a nuisance to the vicinity of the premises.

II. That the plaintiff did accordingly sell and convey to the defendant said premises for said sum, but the defendant has not erected a good brick house on the lot, to be occupied as a dwelling; but, on the contrary, has erected upon said premises a wooden building, to be used as a slaughter-house.

III. That the defendant thereby has prevented other lots in the vicinity, owned by the plaintiff, from becoming valuable to the plaintiff, as they would otherwise have become, and has injuriously affected their condition, and hindered the plaintiff from selling them; to his damage

dollars.

[Demand of Judgment.]

44. Covenant to Build Party Wall.-A covenant between A. and B.. owners of adjoining premises, that A. may build a party wall, half on each lot, and that when B. uses the same he shall pay half its cost, is personal, and does not pass with the land to A.'s grantee: Block v. Isham, 28 Ind. 37. 45. Covenant to Remove Buildings.-A covenant entered into be tween owners of adjoining city lots, for themselves and all claiming under them, to the effect that all buildings erected on such lots shall be set back a specified distance from the line of the street on which the lots front, is a covenant which equity will enforce between the parties to it, in favor of one against the other, or in favor of one against any subsequent grantee of either lot: Roberts v. Levy, 3 Abb. Pr. (N. S.) 311.