
    EFFECT OF COVENANTS AGAINST INCUMBRANCES.
    Common Pleas Court of Montgomery County
    Edward E. McKnight v. Columbian Land & Building Co.
    Decided, November 5, 1920.
    
      Assessments Against Land—May be Recovered from Anyone of Prior Warrantors Whose Covenant against Incumbrances does not Except Such Existing Assessment.
    
    Demurrer does not lie to a petition for recovery of the amount of an assessment outstanding on land purchased by the plaintiff from a grantee of the defendant and which plaintiff was required to and did pay; when defendants deed recited that “the title so conveyed is clear, free and unincumbered.”
   Snediker, J.

In this case a demurrer has been filed to the petition. The defendant claiming that plaintiff does not set forth facts sufficient to constitute a cause of action.

The case is brought to recover on account of certain assessments which were upon the property bought by plaintiff of a grantee of the defendants. In this deed to plaintiff’s grantor, the defendant recited:

‘ ‘'That the title so conveyed is clear, free and unincumbered. ’ ’

There was at the time on the property and not excepted by the deed from the scope of this covenant against incumbrances, an assessment for a street improvement amounting in all to $320.54. . This assessment was by the city of Dayton certified for collection to the auditor of Montgomery county, who caused it to be placed on the several lots conveyed by defendant to plaintiff’s grantor, and plaintiff was obliged to and did pa3r and extinguish the lien of this assessment.

The question raised by counsel in presenting the demurrer . was as to the effect of a covenant against incumbrances such as is recited in the pleading.

The claim of counsel for defendant is that such covenant does not run with the land and that therefore, no liability arises ou account of payment made by plaintiff. . The rule applied in many states is found at page 471, of the 4th Yol. of Kent’s Commentaries. The author there says:

“The usual personal covenants inserted in the conve3ance of the fee, are 1. That the grantor is lawfully seized; 2. That he has good right to convey; 3. That the land is free from incumbrances; 4. That the grantee shall quietly enjoy; 5. That the grantor will warrant and defend the title against all lawful claims. The covenants of seizin, and of a right to convey, and against incumbrances, are personal covenants, not running with the land, or passing to the assignee; for, if not true, there is a breach of them as soon as the deed is executed, and they become ehoses in action, which are not technically assignable. But the covenant of warranty, and the covenant for quiet enjo3uneht, are prospective, and an eviction is necessary to constitute a breach of them. They are, therefore, in the nature of real covenants, and they run with the land conveyed and descend to heirs, and vest in assignees. ’ ’

This view with respect to a covenant against incumbrances is supported by some states.

In the 5th Conn. Reports, page 497, the first clause of the syllabus reads:

“The covenants of seizin and against incumbrances in a deed of land are personal covenants, not running with the land; if false, they are broken instantaneously _ on the delivery of the deed, and being so broken, they become choses in action; they cannot, therefore, be assigned.”

The theory that they are not assignable is based upon the construction of the court that they are choses in action. In the body of the opinion, quoting 2 Johns Reports, the court uses the language of Spencer, Judge, in which he says:

‘ ‘ Choses in action are incapable of assignment at .the common law; and what distinguishes these covenants, broken the instant they were made, from an ordinary chose in action? The covenants, it is true, are such as run with the land.”

The court also refers to a case in 4th Conn., in which it was held that:

“Prom its nature it does not run with the land, as none but real covenants do; * * * Hence, as I have said before, having been broken, the covenant has become a chose in action, and therefore can not be assigned. ’ ’

This same rule is supported by the 5th, N. J., page 20, and 2nd, Mass., page 439. But our own Supreme Court takes the view that a covenant against incumbrances does run with the land, and we think very reasonably so if the whole question is to be put upon the ground that such covenant can not run with the land because it constitutes a chose in action which is not assignable. In the state of Ohio, choses in action are assignable. In the 49th, O. S., at page 530 (Van Dyke v. Rule), we find the first syllabus to be:

“A covenant against incumbrances, contained in a conveyance of real estate, runs with the land. * * *”

In the body of the opinion, Judge Bradbury says:

“The only covenants that the findings show that these deeds contained were those of warranty and against. incumbrances. Whatever the rule may be elsewhere, it was settled in this State by the ease of Foots v. Burnett, 10 Ohio, 317, decided by this court in 1840, that the covenant against incumbrances is a real covenant which runs with the land.”

We must keep in mind that a real covenant which is one annexed to some estate in land and runs with the land, extends not only to heirs and executors, but assignees as well. Every assignee may on account of a breach of a covenant of this character, maintain an action against all or any of the prior warrantors until he has obtained satisfaction. The language of the covenant leads to this: each covenantor covenants with the covenantee and assigns, and as the lands are transferable, it is reasonable that the covenants annexed to them should be transferable also.

'In the 10th, Ohio, referred to by Judge Bradbury, the Supreme Court at pages 332-3, uses this language:

' ‘ The same train of reasoning which led the court to this decision will lead to a similar result with respect to the covenant against incumbrances. " This covenant, like the covenant of seizin, is made for the benefit of the grantee in respect to the land. It is not understood as a contract, in which the immediate parties are alone interested, but as intended for the security of all subsequent grantees. If the first grantee continues in possession of the land while his title remains undisturbed, and conveys to a subsequent grantee, in whose time an outstanding incumbrance is enforced against the land, justice requires that this subsequent grantee should have the . benefit of the covenant against incumbrances to indemnify himself.. We hold, therefore, in accordance with the decision in the case of Backus v. McSoy, that a covenant against incumbrances is a eoveuant running with the land until the incumbrances are removed.”

The view here expressed by the Supreme ■ Court is followed by the Circuit Court of Licking county, 16 C. C. Reports, page 461, and by the Common Pleas Court of Hardin county, 5 0. ■N. P., page 112, and also by the Superior Court of Cincinnati, 2 Disney, page 571.

In this case, Judge Hoadly says:

“The covenant, of freedom from incumbrances in Ohio, is a real covenant running with the land, not broken until eviction. ’ ’

Eviction is of two characters. One actual, the other constructive. Constructive eviction exists where there is interference of any character with the beneficial enjoyment of the estate, in-question, and the grantee may recover in an action for a breach of a covenant against incumbrances where he has paid off the incumbrance to prevent actual eviction, 10 Heisk, 384, 8 Jones Law, 188. The rule is that where an incumbrance has been removed or paid off by the covenantee, he is entitled as damages for the breach of the covenant against incumbrances, to the amount he has paid with interest.

The demurrer is overruled. ■  