131 U.S.

75
9 S.Ct. 634
33 L.Ed. 53

DOUGLASS
v.
LEWIS et ux.1
May 13, 1889.

Douglass brought his action in the district court of the Second judicial
district of the territory of New Mexico, September 11, 1883, for the
breach of an alleged covenant of seisin in a deed made by Lewis and his
wife to him, purporting to convey the title to 160 acres of land.
The petition averred that the defendants, by their deed of May 13, 1882,
'did convey and warrant to the plaintiff, his heirs and assigns, in feesimple, certain real estate,' describing it, and then continued: 'And the
defendants did by their said deed, for themselves, their heirs and personal
representatives, covenant with the plaintiff, his heirs and assigns, amongst
other things, that at the time of the making, ensealing, and delivery of said
deed, and 'at the time of the execution of said conveyance,' they, the said
defendants, were lawfully seised of an indefeasible estate, and in
possession of a title in fee-simple in and to the said property, and then had
good right and full power to convey the same. Nevertheless plaintiff avers
that the said tract of land in said deed described, and by said defendants
bargained and sold to said plaintiff, was not the property of said
defendants, and at the time of the making and delivery of said deed they,
the said defendants, were not lawfully seised of an indefeasible estate in
fee-simple in and to said real estate, nor has they then good right and full
power to convey the same, but, on the contrary thereof, the government of
the United States had at the time of the making and delivery of said deed,
and still has, lawful right and title to said real estate; and plaintiff avers
that in consideration of the conveyance and sale of said lands in said deed
described and set forth, he paid to said defendants the sum of five
thousand three hundred and thirty-three dollars and thirty-three cents,
($5,333.33;) that he, said plaintiff, has further expended and laid out large
sums of money in building houses upon and improving said land, to-wit,
four thousand dollars, ($4,000;) and so the plaintiff says that they, said
defendants, have not kept the said covenants according to the true intent

and meaning of said deed, and according to the statute in such case made
and provided, but have broken the same, to the damage of plaintiff in the
sum of ten thousand dollars, ($10,000.)'
Profert of the deed was made by the declaration, and defendants filed a
demurrer, October 1, 1883, craving oyer of the condition of the said deed
and covenant, which being read and heard, they insisted that the
declaration and the matters therein contained, etc., were insufficient in
law. Pleas were also filed, alleging that the deed was not defendants' deed,
denying that the defendants covenanted with the plaintiff that they were
lawfully seised, and averring that it was not true that they had not kept
their covenants. Subsequently, and on the 19th day of October, an
amended special demurrer to the declaration was filed, averring 'that the
said deed upon oyer contains no such covenant as the one alleged in the
said declaration of the plaintiff,that is to say, that the said deed, having
some express covenants therein contained, and among which is not the
covenant declared upon in the said plaintiff's declaration, to-wit, no
covenant of seisin, or 'that the said covenantors were at the time of making
the said deed seised of an indefeasible title in fee-simple' to the lands
conveyed; and inasmuch as the parties have fully expressed their intention
and agreements at the time of making the said deed by the express
covenants therein contained, there can be none added by construction or
otherwise; and, further, defendants say the said declaration alleges no
eviction, and therefore he, the said plaintiff, ought not to have and
maintain his said action,' etc.
This, upon argument, was overruled November 3, 1883, the district judge
filing his opinion thereon January 8, 1884, which thus concludes: 'In the
case at bar I am of opinion that the express covenant of warranty is
independent of the covenant of seisin implied by the statute, and that an
action may be maintained upon the latter, and can only be met by plea and
proof of good title in the grantor at the time of the execution of the deed.'
On the 16th of May, 1884, the defendants filed two pleas, alleging in the
first that at the time of making the deed the grantors were seised and
possessed of the said real estate, with full power and authority to convey
according to the effect of the deed; and in the second, that at the time of
making the said deed the grantors 'were lawfully seised of an indefeasible
estate, and in possession of a title in fee-simple in and to the said real
property, and then had good right and full power to convey the same,'
according to the form and effect of said deed. The plaintiff demurred to
the first of these pleas. The court sustained the demurrer, and the case
went to trial on the issue made up on the second plea. Evidence was given

on behalf of the plaintiff tending to show that the United States had
assumed ownership and control over all the land in controversy, and had
disposed of a portion of the same, and that the defendants claim that the
land had been granted by Spain or Mexico to one Sandoval, who devised
it to one of his relatives, from whom it had descended to the grantor of
defendant Lewis, but that the claim of Sandoval had never been presented
to any tribunal or officer of the United States for adjudication. All the
documentary evidences of title offered on defendants' behalf, except the
will of Sandoval, and papers relating thereto, bore date in 1879, or
subsequent thereto. The oral testimony tended to show that Sandoval and
his descendants were in possession of the land for a number of years,
probably from the date of the treaty of Guadalupe Hidalgo.
Plaintiff admitted that he was put into possession of the land, and had
never been disturbed in the possession, and, in effect, that he had never
made demand for restoration of the consideration money, or what might
have been expended for improvements, nor had any demand been made on
him to surrender the land prior to the commencement of the suit, nor had
he offered to rescind or to restore the land. The court refused to admit the
muniments of title relied on by the defendants, and charged the jury as
follows: 'There is no question of fact in this case for you to pass upon.
There are only questions of law, which it is the duty of the court to pass
upon; and the entire responsibility of passing upon such questions is with
the court. The court instructs the jury that it is their duty, under the law
and the evidence in this case, to find a verdict for the plaintiff, and assess
his damages at the sum of $5,333.33, being the amount of the money paid
by him for the land in question.' The jury returned a verdict accordingly,
and motions for a new trial and in arrest of judgment were made by the
defendants, and severally overruled, and judgment rendered on the verdict.
The case was carried by appeal to the supreme court of the territory,
which court reversed the judgment of the district court, and dismissed the
cause, (9 Pac. Rep. 377,) from which judgment of the supreme court the
pending writ of error was prosecuted. The supreme court of the territory
held that the effect of the introduction into the deed of an express
covenant of warranty is to deny to the purchaser the benefit of the
statutory covenant of seisin, and said: 'As there is no pretense in this case
of an eviction, or any claim whatever of a breach of the covenant of
warranty, it follows that the action cannot be maintained, and that it was
error in the court below to order a verdict for the plaintiff, and in
overruling the motion in arrest of judgment.' (9 Pac. Rep. 380.)
J. H. McGowan and C. W. Holcomb, for plaintiff in error.

S. Shellabarger and J. M. Wilson, for defendants in error.

Mr. Chief Justice FULLER, after stating the facts as above, delivered the
opinion of the court.

Assuming that defendants in error failed to sustain their plea that they 'were
lawfully seised of an indefeasible estate, and in possession of a title in feesimple in and to the said real property, and then had good right and full power
to convey the same,' counsel for plaintiff in error state their position 'in the
following propositions: (1) The covenant of warranty which is found written in
the deed does not exclude the statutory covenants. These latter must be
considered as express covenants, having the same effect as though written out
in full in the instrument of conveyance. (2) The statutory covenant of seisin is a
general covenant, unlimited by any restrictive words found in the second
statutory covenant. (3) The covenant of seisin is broken, if at all, as soon as it is
made. (4) The plaintiff is only required to declare its breach, and need neither
aver eviction nor damages. (5) The burden of proof is on defendant. (6) The
measure of damages is the purchase money and interest.' The defendants in
error, by their deed, entered into a general covenant of warranty, but it is
claimed that in virtue of the statute they are to be held, in addition, to a general
covenant of seisin, a limited covenant as to incumbrances, and a general
covenant of further assurance.

The statute relied on is as follows: 'The words 'bargained and sold,' or words to
the same effect, in all coveyances of hereditary real estate, unless restricted in
express terms on the part of the person conveying the same, himself and his
heirs, to the person to whom the property is conveyed, his heirs and assigness,
shall be limited to the following effect: First. That the grantor, at the time of the
execution of said conveyance, is possessed of an irrevocable possession in feesimple to the property so conveyed. Second. That the said real estate, at the
time of the execution of said conveyance, is free from all incumbrance made or
suffered to be made by the grantor, or by any person claiming the same under
him. Third. For the greater security of the person, his heirs and assignees, to
whom said real estate is conveyed by the grantor and his heirs, suits may be
instituted the same as if the conditions were stipulated in the said conveyance.'
Comp. Laws, N. M. 1884, 2750, p. 1306. The language used is somewhat
ambiguous, arising, as the supreme court of the territory informs us, from the
section having been originally enacted in Spanish from English, and then
retranslated; but we are content with the view of that court that 'hereditary real
estate' means 'real estate of inheritance,' and 'possessed of an irrevocable
possession in fee-simple' means 'seised of an indefeasible estate in fee-simple.'

At common law, in the transfer of estates of freehold by deed, a warranty was

implied from the word of feoffment, dedi, and from no other word, and from
words of bargain and sale merely no covenant was implied in any case. In 1707,
the statute of 6 Anne, c. 35, was enacted, of which the thirtieth section is as
follows: 'In all deeds of bargain and sale hereafter enrolled in pursuance of this
act, whereby any estate of inheritance in fee-simple is limited to the bargainee
and his heirs, the words 'grant, bargain, and sell' shall amount to, and be
construed and adjudged in all courts of judicature to be, express covenants to
the bargainee and his heirs and assigns, from the bargainor, for himself, his
heirs, executors, and administrators, that the bargainor, notwithstanding any act
done by him, was at the time of the execution of such deed seised of the
hereditaments and premises thereby granted, bargained, and sold, of an
indefeasible estate in fee-simple, free from all incumbrances, (rent and services
due to the lord of the fee only excepted,) and for quiet enjoyment thereof
against the bargainor, his heirs and assigns, and all claiming under him; and
also for further assurance thereof to be made by the bargainor, his heirs and
assigns, and all claiming under him, unless the same shall be restrained and
limited by express particular words contained in such deed; and that the
bargainee, his heirs, executors, administrators, and assigns, respectively, shall
and may, in any action to be brought, assign a breach or breaches thereupon, as
they might do in case such covenants were expressly inserted in such bargain
and sale.' And in 1715, an act was passed by the colony of Pennsylvania,
entitled 'An act for acknowledging and recording of deeds,' of which the sixth
section declared that: 'All deeds to be recorded in pursuance of this act, whereby
any estate of inheritance in fee-simple shall hereafter be limited to the grantee
and his heirs, the words 'grant, bargain, sell,' shall be adjudged an express
covenant to the grantee, his heirs and assigns, to-wit, that the grantor was seised
of an indefeasible estate in fee-simple, freed from incumbrances done or
suffered from the grantor, (except the rents and services due to the lord of the
fee,) as also for quiet enjoyment against the grantor, his heirs and assigns,
unless limited by express words contained in such deed, and that the grantee,
his heirs, executors, administrators, and assigns, may in any action assign
breaches as if such covenants were expressly inserted.'
3

In Gratz v. Ewalt, 2 Bin. 98, the construction of this statute was carefully
considered, and TILGHMAN, C. J., in delivering the opinion, said: 'The
meaning is not clearly expressed; but I take it to be a covenant * * * that the
estate was indefeasible as to any act of the grantor. For if it was intended that
the covenant should be that the grantor was seised of an estate absolutely
indefeasible, it was improper to add the subsequent words 'freed from
incumbrance done or suffered by him.' * * * The words 'seised of an
indefeasible estate in fee-simple' are to be considered, therefore, not as standing

alone, but in connection with the words next following, 'freed from
incumbrances done or suffered from the grantor.' I am the more convinced that
this was the intention of the legislature by comparing the expressions in this act
with the thirtieth section of the statutes of 6 Anne, c. 35, which contains a
provision on the same subject, and was evidently in the eye of the persons who
framed our law. The British statute makes use of more words, but the intention
is more clearly expressed. It declares that the words 'grant, bargain, and sell'
shall amount to a covenant that the bargainor, notwithstanding any act done by
him, was at the time of the execution of the deed seised of an indefeasible estate
in fee-simple, etc. Our law seems intended to express the substance of the
British statute in fewer words, and has fallen into a degree of obscurity which is
often the consequence of attempting brevity. I can conceive no good reason
why our legislature should have wished to carry this implied warranty further
than the British statute did, because it has bad effects to annex to words an
arbitrary meaning far more extensive than their usual import, and which must
be unknown to all but professional men. It might be very well to guard against
secret acts of the grantor, with which none but himself and those interested in
keeping the secret could be acquainted. As for any further warranty, if it was
intended by the parties, it was best to leave them to the usual manner of
expressing it in plain terms.'
4

The statute of Anne, the Pennsylvania act, and the foregoing extract from the
opinion of Chief Justice TILGHMAN, are given by Mr. Rawle in his admirable
work on Covenants for Title, (5th Ed.) 282, 283, et seq., and he states that
'the construction thus given has never been departed from in Pennsylvania; and
it is said by Chancellor Kent (4 Comm. 474) that 'by the decision in Gratz v.
Ewalt the words of the statute are divested of all dangerous tendency, and that
it will equally apply to the same statutory language in other states."

The provision upon this subject in the statutes of Alabama, Arkansas, Illinois,
and Mississippi is substantially the same as in Pennsylvania, and the same
construction has been put upon it by the courts. Stewart v. Anderson, 10 Ala.
504; Winston v. Vaughan, 22 Ark. 72; Finley v. Steele, 23 Ill. 56; Weems v.
McCaughan, 7 Smedes & M. 427. It is contended, however, that the statute of
Missouri so differs from the statute of Anne and that of Pennsylvania as to
require a different construction, which has been given it in Alexander v.
Schreiber, 10 Mo. 460, and that, as the statute of New Mexico was taken from
that of Missouri, the construction put upon the latter should be accepted as
correct. The language of the statute of Missouri (Gen. St. Mo. p. 444, 8) is as
follows: 'The words 'grant,' 'bargain,' and 'sell' in all conveyances in which any
estate of inheritance in fee-simple is limited, shall, unless restrained by express
terms contained in such conveyances, be construed to be the following express

covenants on the part of the grantor, for himself and his heirs, to the grantee,
his heirs and assigns: First. That the grantor was at the time of the execution of
such conveyance seised of indefeasible estate in fee-simple in the real estate
thereby granted. Second. That such real estate was, at the time of the execution
of such conveyance, free from incumbrances done or suffered by the grantor, or
any person claiming under him. Third. For further assurances of such real estate
to be made by the grantor and his heirs to the grantee and his heirs and assigns;
and may be sued upon in the same manner as if such covenants were expressly
inserted in the conveyance.' And the supreme court of Missouri, in Alexander
v. Schreiber, supra, after citing many cases holding that where a deed contains a
limited covenant that the premises are free from incumbrances, and also a
general covenant of warranty, the one does not limit the other, thus proceeds: 'It
is apparent from these cases, to which we have briefly referred, that whilst it is
conceded that a special covenant will restrain a general one, where the two are
absolutely irreconciable, yet the courts have inclined very much to let both
stand. A covenant is to be construed most strongly against the covenantor, and
in giving effect to the intention of the parties to an instrument of conveyance
the courts have kept this principle in view. Where the particular covenants and
the general covenants are entirely independent of each other, and of a different
character, they will all stand. The statute enumerates the three covenants which
the words 'grant, bargain, and sell' are declared to imply as distinct and
independent covenants. The second may be superfluous, but it does not
therefore limit the first, which is independent of and not inconsistent with it.'
6

If, it appears to us, however, the question arises not upon the covenants in a
deed, but upon the construction of a statute, which turns certain words of grant
into express covenants, the same rule of construction does not apply. In respect
to deeds, the words are to be taken most strongly against the party using them,
while in respect to statutes, if in derogation of the common law, as that under
consideration is, they should be construed strictly. And, so construed, the
statute of New Mexico seems clearly within the conclusion reached in Gratz v.
Ewalt. The covenant that the grantor is 'seised of an indefeasible estate in feesimple' is a covenant for a perfect title; and to couple with it a covenant that the
land is free from incumbrances 'made or suffered to be made by the grantor, or
by any person claiming the same under him,' is incongruous and repugnant,
unless the prior covenant is held to mean 'notwithstanding any act done by the
grantor.' Apart from this, as the statute invests the words 'bargained and sold'
with an effect they did not possess at common law, we think it was not intended
that those words should so operate where the parties themselves have entered
into covenants. In Weems v. McCaughan, 7 Smedes & M. 427, it is said: 'The
covenants raised by law from the use of particular words in the deed are only
intended to be operative when the parties themselves have omitted to insert

covenants. But when the party declares how far he will be bound to warrant,
that is the extent of his covenant.' And the same result is reached and
announced by the supreme court of Illinois in Finley v. Steele, 23 Ill. 56, in
which case Mr. Justice WALKER, speaking for the court, says that 'this
statutory provision does not create this covenant against the intention of the
parties;' that 'the employment of any language from which it appears the parties
intended that these words should not have such an effect' does away with the
statutory covenant; that all statutes in derogation of the common law must be
construed strictly; that if there is a doubt whether, where there is a general
covenant of warranty in the deed, such a case is embraced within the provisions
of the statute, it should not be held as controlling the rights of the parties; that
'there is scarcely a court before which this act has come for a construction that
has not characterized it as a provision of dangerous tendency, calculated to
entrap the ignorant and unwary into liability which they never intended to
incur;' that the rule is familiar that 'the expression of one thing is the exclusion
of another,' and 'when the grantor inserts a covenant of general warranty, and
omits all other covenants, that it must have been his intention to bind himself
alone by the covenant he has inserted;' that under the statutory covenant 'a
breach accrues, if at all, upon the delivery of the deed, whilst under the
covenant of general warranty a breach only takes place upon an eviction;' and
that, 'if the grantor were to write out this statutory covenant in a deed, and also
insert a covenant of general warranty, it would present a very different
question, as then it would by that act appear to be his intention that both
covenants should be operative. In such a case the court would have to give
effect to each, so far as it was not limited by the other.' These views strike us as
sensible and just, and we concur with the supreme court of the territory in its
approval of them.
7

Chancellor Kent pointed out in his Commentaries the danger from importing
into a deed express covenants created by statute 'of imposition upon the
ignorant and the unwary, if any covenant be implied, that it is not stipulated in
clear and precise terms.' The covenant of warranty, and that of seisin or of right
to convey, are not equivalent covenants. Defect of title will sustain an action
upon the one, while disturbance of possession is requisite to recover upon the
other. And we cannot hold that Lewis and wife, in covenanting for quiet
enjoyment, intended to be bound by a covenant outside of their express
agreement, which might impose a liability upon them the instant their deed was
executed and delivered. Covenants of seisin and of good right to convey are
broken, if at all, when the deed is delivered; and if the grantor is not well
seised, or if he has not the power to convey, an action at once accrues. But as
Douglass was in possession when he commenced his action, it does not appear
to be material to him whether he stands upon the covenant of general warranty

in the deed, or of seisin in the statute. While the supreme court of Missouri has
held that the covenant created by the statute may be imposed upon a grantor,
notwithstanding he has warranted generally in the conveyance, yet the rule is
there equally well settled that the statutory covenant of seisin is merely a
covenant for indemnity, and that nominal damages only are recoverable until
the estate conveyed is defeated or real injury sustained. Dickson v. Desire's real
injury sustained. Dickson v. Desire's Mo. 467. In that view the grantee is
protected by the general covenant of warranty substantially to the same extent
as by the statutory covenant, and the conclusion is strengthened that where one
is expressly inserted in the deed the other ought not to be implied. Lewis and
wife had the right to contract that their grantee should not hold possession of the
property and at the same time compel them to return the purchase money, and
in either aspect there could be no substantial recovery here.
8

The judgment of the supreme court of the territory is affirmed.

Affirming 9 Pac. Rep. 377.