Levine v. Hull

• Decision Date: 10 December 1919
• Docket Number: 64.
• Citation: 109 A. 141,135 Md. 444
• Parties: LEVINE et al. v. HULL et al.
• Court: Maryland Court of Appeals

109 A. 141

135 Md. 444

LEVINE et al. v. HULL et al.

No. 64.

Court of Appeals of Maryland

December 10, 1919

Appeal from Circuit Court, Baltimore County, in Equity; Frank I Duncan, Judge.

"To be officially reported."

Action by Rebecca Levine and Hyman Levine against Olive E. Hull and Charles J. Hull, her husband. From judgment for defendants plaintiffs appeal. Affirmed.

Argued before BOYD, C.J., and BURKE, THOMAS, PATTISON, URNER STOCKBRIDGE, and ADKINS, JJ.

J. Paul Schmidt, of Baltimore (Isaac Lobe Straus, of Baltimore, on the brief), for appellants.

C. Gus Grason, of Towson, for appellees.

STOCKBRIDGE J.

On the 31st day of July, 1909, Olive E. Hull and Charles J. Hull her husband, conveyed to Rebecca Levine and Hyman Levine five lots of ground in the Thirteenth district of Baltimore county. In the deed conveying them was the following covenant:

"And the said grantors hereby covenant that they have not done or suffered to be done any act, matter, or thing whatsoever to incumber the property hereby conveyed; that they will warrant the same specially and will execute such further assurances of the same as may be requisite."

The present suit is one for damages for the alleged violation of this covenant; the violation consisting in a right of way held or enjoyed by a third party over portions of the land conveyed.

It will be observed that the covenant quoted is in reality three covenants-one against incumbrances; one of special warranty; and one for further assurances.

The defendants demurred to the declaration, and the demurrer being sustained, upon the refusal of the plaintiffs, appellants here, to amend, a judgment was entered for the defendants.

The narr. charges that the right of way was asserted in December, 1916, by George S. M. Kiefer and Sarah E. Kiefer, his wife, filing a bill for injunction, in which litigation they were successful, and an injunction was made perpetual against the interference by the defendants, Levine and wife, by a decree passed on the 22d of March, 1917. It is from the judgment in the damage case that this appeal has been taken.

There is thus presented to this court but a single question, viz.: The effect of the covenant against incumbrances contained in the deed from Charles J. Hull and wife to the plaintiffs; Is it to be regarded simply as a covenant for special warranty, and therefore a repetition to that extent of that which was embraced in the second of the covenants, to which attention has already been directed, or does the covenant against incumbrances have a wider scope and effect than this, or, to state it a little differently, is a covenant against incumbrances broader and more extensive than a covenant of special warranty?

The declaration nowhere alleges as to when, how, or by whom the right of way was created or came into existence, whether before or after the conveyance to the present defendants. If it was created after such conveyance, it would undoubtedly be covered by the covenant for special warranty, because, as was said in Lowes v. Carter, 124 Md. 678, 93 A. 216, quoting from Hayes v. Richardson, 1 Gill. & J. 384:

"All rights, incumbrances, or conveyances touching or in any wise concerning land should appear on the public records."

The statement of law most favorable to the present defendants is that contained in 7 R. C. L. title "Conveyancing," § 48, where the compiler says:

"But it has been held that an incumbrance upon property at the time the grantor acquired title to it is not within his covenant

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