Crooker v. Jewell

29 Me. 527

• Court: Supreme Judicial Court of Maine
• Decided: May 15, 1849
• Status: Published

Opinion

Wells, J.

By the common law, the covenant of general warranty runs with the land, because it is connected with it, and descends to the heir, and is transferred to the purchaser of the land by the conveyance.

As assignees of grantees or lessees are bound by covenants real, which run with the land, so are they entitled to the benefit of all such covenants as are entered into by the grantors or lessors and may maintain an action on them. Cruise’s Dig. tit. Deed, c. 5, § 16, 30, 44; Sprague v. Baker, 17 Mass. 586.

Where a covenant which runs with the land, is broken, he in whose time it is broken, whether the grantee or any one who claims and. holds under him, may maintain an action for the breach. Griffin v. Fairbrother, 1 Fairf. 91.

The tenants claim, through mesne conveyances, under Samuel E. Duncan, and that the title passed from Nathan Hunt by the deed of Mary Hunt, his administratrix, to the Richardsons. It is contended by the demandant, that she was not lawfully authorized to make the conveyance, but assuming that she was, as is alleged by the tenants, they then deduce their title from Duncan, and if that title fails, they have a remedy against him upon the covenant of warranty.

The covenant, running with the land, passed from the Richardsons to the tenants, and consequently, the Richardsons had no control over it, and could not discharge it. The release of John Richardson made to Duncan, was therefore of no' effect. Whether it would have been sufficient to release the covenant, if the title had still been in the Richardsons, it is unnecessary to determine.

The act of the tenants, in vouching in the Richardsons, their immediate grantors, did not operate as a relinquishment of their claim against Duncan, whose liability to them remained, and they would have had an election to call on him for damages, if their title had failed.

The title to the demanded premises was directly in issue between the parties, and Duncan was interested to sustain that of the tenants, and having been introduced by them, and allowed to testify, the exceptions must be sustained.

Exceptions sustained, and a new trial granted.