Jackson v. Green

• Decision Date: 28 November 1887
• Citation: 14 N.E. 89,112 Ind. 341
• Parties: Jackson v. Green.
• Court: Indiana Supreme Court

112 Ind. 341

14 N.E. 89

Jackson

v.Green.

Supreme Court of Indiana.

November 28, 1887.

Appeal from circuit court, Porter county; Elisha C. Field, Judge.

E. D. & P. Crumpacker, for appellant.

Elliott, J.

The deed on which the appellant's complaint is founded purports to convey land in the state of Missouri, and is in the ordinary short form prescribed by our statute, except that it contains in addition to the general clause, “convey and warrant,” the following clause: “Now and forever warranting and defending the said premises against all taxes against us, and against our own acts in the premises.” This clause follows the description, and is at the close of the instrument. The breach alleged is that the grantors never had title to any part of the land, and could convey none. Neither the appellant nor the appellee had ever been in possession of the land. The deed was executed in this state. The law of this state determines the question whether the deed contains the covenant of seizin. Bethell v. Bethell, 92 Ind. 318;Craig v. Donovan, 63 Ind. 513;Bethell v. Bethell, 54 Ind. 428. By force of our statute the words “convey and warrant” comprehend and express all the covenants of warranty as fully as if they were written out at full length. The deed, therefore, contains the covenant of seizin, and as the grantor had neither title nor possession, the covenant was broken as soon as the deed was executed. Craig v. Donovan, supra, and cases cited; Bethell v. Bethell, 92 Ind. 318-321, and cases cited.

As the deed contains all the covenants, this complaint is good, unless the general covenant of seizin is limited by the special covenant of warranty. Our judgment is that the special covenant restricts two of the general covenants, and no more. The first of these is the covenant warranting against incumbrances; the operation of that covenant is limited to taxes. The second of the general covenants limited by the special covenant is that of quiet enjoyment. Rawle, Cov. (5th Ed.) § 92. The fair construction of the words of the special covenant, if taken apart from the other words of the deed, would be that they extend no further than this; but, when taken, as they must be, in connection with the other parts of the deed, it becomes very clear that the other construction can be justly given them. The general covenant comprehended in the words “convey and warrant” was certainly intended to secure the grantee some title; but to hold that the special...