The Hawaiian gazette., 1886-05-04
SESSION OF 1855.
'DaWaiiatI Wazette.
TUESDAY, MAY ., Iss6.
Supreme Court, of the Hawaiian Islands
April Term. 1856.
JOHs ROprLro vs.. FRAsk GERARD.

BEFORE Mr.. JUSTICE M'oUI.LT HOLDING THE TERM.
On Demurrer
Action for damages on covenants in a
deed.
The defendant demurs .
The portions Of the deed involved in this
controversy are the following: The de
PENDANT grantor 'bargained and sold and
"by these presents do grant and convey
unto the party of the the second part, his
assigns, etc, one blacksmith's shop situ-
''ated on the Ahapuaa of Waiohinu, dis
''trict Of Kau, Island of Hawaii, and all
my right title and interest to the komo-
"kino right for the said blacksmith shop
ION the Ahapuaa of Waiohinu, to have and
ITO hold the same, etc.
And 1 do Tfor myself, my heirs, etc,
covenant and agree to and with the said
party of the second part, his ETC., to war
rant and defend the sale of the said prop
~erty hereby made, etc"
The complainant AYERS that party
(which at the time of the said sale to the
plaintiff and thence hitherto claimed to
''have and had lawful right and title to the
"said property and to the possession there
"of" evicted the plaintiff
whether the covenants in the deed govern
the grantor's "komokino" right or whether
they are qualified by and limited to the
words right title and interest" Did the
grantor covenant to maintain perfect
right and title or the right and title which
he had?
Some cases stating the law governing
this matter are the following: Sweet VS..
Brown, u Met. It's. "The warranty is of
1.-The premises which we're granted and
conveyed by the deed But that was all
my right title and interest in and to that
parcel of real estate situate, etc. 1t was
mot grant of certain land in general
''terms, but Of his title and interest in such
lands. and this particularly and fully ex
pressed"
Allen VS.. Holton, 20 Pick. 45S.
Blanchard VS.. Brooks, u Pick. At, 66.
Ballard vs. Child, 46 Me. 1872
The covenants in deed are restricted
to the grant, and if the grantor conveys
only his own right and title in the prem
ises he is not liable upon his covenants of
warranty even against persons claiming
under his own previous conveyances. Ii
Hubbard VS.. Athorp, g. Cush. 419. tle
Court, referring to some of the above cited
cases, say ''it is unnecessary to consider
particularly the effect of a covenant of
warranty in a deed, when the only thing
described in the premises is the right title
and interest of the grantors."
1t seems TO me that no other principle
could be supported by reason or authority.
1t was held in this Court by single
justice and not appealed to the Court in
banco, in Nakeu VS.. Hiwauli, that the war
rant extended only to the matter set forth
in the grant, which was that the grantor
sustained certain relationship to the de-
ceased patentee, and covenanted for that
right, whatever it might be. 1t is to be
observed that the deed contains no cove
nant of seizin of any thing, and it contains
no description by metes and bounds of
any premises. Only the words, "my right
title and interest to the komokino right
for the said blacksmith shop" are given
to define any supposed right to the site of
the shop. This is simply unintelligible.
A covenant must covenant something hav
ing a precise and legal meaning. The
conveyance or bill of sale, of one black
smith shop is not, / think, qualified by the
words, fright title and interest," and the
warrant is to defend the sale of said prop
erty. The plaintiffs declaration l hold to
be good for that and nothing more:
He may amend on payment of all costs
to the present time, otherwise the whole
demurrer is sustained and the complaint
dismissed.
S. B. Dole for plaintiff; Kinney & Peter
son for defendant.
Honolulu, April q. 1856.