Scott, Judge,
delivered the opinion of the court.
The evidence on the trial shows that no fraud was intended in the transaction between Gamache and the City of Carondelet. The lease to Gamache was relatively at a much lower rent than that made to the plaintiff, and was not recorded until the 24th of May, 1851, a period of seven years and some months. Had there been any design to defraud the plaintiff by the execution of the lease to Gamache, such lease would have been immediately put upon record; as until that was done, no injury from the second lease could have resulted to the plaintiff, as he might at any time during the period just mentioned have put his lease upon record and thereby have retained his priority to Gamache. These observations are not made with a view to convey the idea that there must have been an intention on the part of the defendant to defraud in order to entitle the plaintiff to an action for a breach of the covenant for quiet enjoyment in making a second lease for a lot that had been previously conveyed.
It is said that the covenant for quiet enjoyment does not extend to evictions under rights which are acquired subsequently to the conveyance ; as, for instance, by the location of a town way. Hence the petition must allege the adverse right as existing at or before the time of the grant. But this only means that the title, on which the eviction is had, must not he derived from the covenantee himself. Hence if a conveyance is made to one, and afterwards a conveyance is made to another of the same land and no mention made of the first deed, and the second is first recorded, the grantor is held liable to the grantee in the first deed upon the warranty therein contained. (2 Hilliard upon Real Property, 375; Curtis v. Deering, 12 Maine, 499.) So it is said in Sugden (2 Sugden on Pow. 84) that where the covenantor himself does any act asserting a title, it will be a breach of the covenant, although he covenanted against lawful disturbances only, and the act done by him was tortious and might be the subject of an action of trespass.
[115]
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Scott, Judge,
delivered the opinion of the court.
The evidence on the trial shows that no fraud was intended in the transaction between Gamache and the City of Carondelet. The lease to Gamache was relatively at a much lower rent than that made to the plaintiff, and was not recorded until the 24th of May, 1851, a period of seven years and some months. Had there been any design to defraud the plaintiff by the execution of the lease to Gamache, such lease would have been immediately put upon record; as until that was done, no injury from the second lease could have resulted to the plaintiff, as he might at any time during the period just mentioned have put his lease upon record and thereby have retained his priority to Gamache. These observations are not made with a view to convey the idea that there must have been an intention on the part of the defendant to defraud in order to entitle the plaintiff to an action for a breach of the covenant for quiet enjoyment in making a second lease for a lot that had been previously conveyed.
It is said that the covenant for quiet enjoyment does not extend to evictions under rights which are acquired subsequently to the conveyance ; as, for instance, by the location of a town way. Hence the petition must allege the adverse right as existing at or before the time of the grant. But this only means that the title, on which the eviction is had, must not he derived from the covenantee himself. Hence if a conveyance is made to one, and afterwards a conveyance is made to another of the same land and no mention made of the first deed, and the second is first recorded, the grantor is held liable to the grantee in the first deed upon the warranty therein contained. (2 Hilliard upon Real Property, 375; Curtis v. Deering, 12 Maine, 499.) So it is said in Sugden (2 Sugden on Pow. 84) that where the covenantor himself does any act asserting a title, it will be a breach of the covenant, although he covenanted against lawful disturbances only, and the act done by him was tortious and might be the subject of an action of trespass.
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If it should be urged that the word demise imports not only a covenant for quiet enjoyment, but also one for power to create the term, and that the effect of the word being limited only so as to take away an action for breach of the covenant for quiet enjoyment, an action for want of authority to convey may still be maintained, it may be answered that this is no action for a breach of any such covenant, and the facts show that at the time of the deed to the plaintiff there was authority in the lessor to create the term. (Gilbert v. Buckley, 5 Conn. 262.)
We do not see what the statute of limitations has to do with this case. Prior to the revision of 1845 there was no limitation in this state to an action of covenant. The six[116] teenth section of article third of the act prescribing the times of commencing actions provides that the action of covenant must accrue after the taking effect of that act, in order to be affected by its provisions. (R. C. 1845, p. 721.)
We do not consider that we are required in this action to determine whether the facts of this case entitle the plaintiff to any or what relief. The judgment is reversed. (See R. C. 1835, p. 180, art. 3, sec. 30.)