Davidson v. Cox

10 Neb. 150

• Court: Nebraska Supreme Court
• Decided: January 15, 1880
• Status: Published

Opinion

Cobb, J.

The same question involved in this case was presented to this court in the case of Chapman v. Kimball, 7 Neb., 399 ; was ably argued by eminent counsel on either side; and the court, as then constituted, was undivided in its views, which were afterwards embodied in the carefully prepared opinion by the present chief justice, which opinion was also examined and concurred in by the writer, who became a member of the court after the decision in said cause had been agreed upon, but before the opinion had been filed. The court in that case say: “ Where a covenant is broken at the time of the execution of the deed it does not run with the land. The obligation is merely personal, and limited to fhe parties to the covenant, and confers no right of action on subsequent purchasers of the estate. * * * The contract is a present engagement that the grantor has an unincumbered title, and is not in the nature of a covenant of indemnity. The statute of limitations, therefore, commences to run at once upon the breach of the covenant.”

Applying the above principles to the case at bar, it will readily be seen that although incumbrances on the land may have existed at the time of the conveyance from defendant in error to Mrs. Eichards, that plaintiff acquired no right of action thereon by reason of his mortgage from her, and the subsequent sale of the land, to satisfy the said incumbrances, and that consequently the demurrer was properly sustained.

The judgment of the district court must be affirmed.

Judgment aeeirmed.