Taggart v. Risley

3 Or. 306

Opinion

By the Court,

Upton, J.

The assertion that the defendant “did not undertake to convey any greater interest’ than one fifth, is not a denial of a material allegation of the complaint; nor is it a statement of new matter in avoidance, upon which an issue of fact can be taken. The answer admits that the defendant Eisley made the covenant set up in the complaint. The covenant differs from a covenant of general warranty only in limiting the persons against whose claims the grantor covenants; and he especially includes himself.

The case is clearly within the rule that prohibits one who is bound by a covenant of general warranty, from setting up an after acquired title. The phrase “the said premises,” as ordinarily used in deeds of conveyance, is construed to mean the lands previously described in the instrument; and when there are no limiting words in the instrument, tending to show that the contract was for less than the whole of the parcel described, a defendant who admits the execution of the covenant, does not raise a material issue of fact by stating that he did not undertake to convey any greater interest than one fifth. The demurrer to the answer should be sustained.