The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-05-24

THE NEWS AND
The motion Of the defendant to set ASIDE
the verdict because one of the jurors
was asleep during the trial was without
merit.
WIGGINS v. FENDER, Odmr., appellant
From Edgecombe. Error.
Remedy by accident warranty never had
any practical existence in this country
and is superseded by the personal coven-
ants the remedy of which is by action of
covenant against the grantor or his rep
resentatiyes to recover compensation for
the land lost by eviction for failure of
title.
The personal covenant, or covenant of
warranty, is a covenant real in the sense
that it is annexted to, or incident to the
estate conveyed by deed and runs with
it inseparably, for the benefit of all who
may succeed to the title by purchase, and
who are privies in estate to the original
covenantee, whether they succeed to the
title as assignees expressly named in the
covenant or not.
Where the habendum in deed is to
the grantee and his heirs forever, the
grantee may recover for an eviction on a
general warranty, though his name is
not mentioned in the warranty, and
though it is not stated in the warranty TO
whose benefit it shall enure
Held, therefore, that covenant that
the land is free from all membranes
and that 1.-THE grantor will warrant and
defend :. title to the same against
the claims of all personns whomsoever,"
erures to the benefit of an assignee who
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purchaser of the land under foreclosure
of mortgage given by the warrantee to
his grantor and warcantor, to secure the
purchase money, the mortgagor warrant
ing in the mortgage the title in fee simple
to the heirs and assigns of the MORTGAGE,
and the words ''heirs and assigns" being
used in the habendum of the deed first
given to the mortgagor by the mortgage,
the grantees being also named in the
habendum, but not in the warranty
Armstrong and wife conveyed to one
Justice and another with covenant and
warranty that they were seized of said
premises in fee and have the right to
convey the same in fee simple: that the
same are free from all membranes, and
that they will warrant and defend the
said title against the claims Of all
Justice reconveyed the land to Armstrong
by mortgage to secure the purchase price
with power of sale upon default in pay
ment. and warranted the title in fee
simple for his heirs and assigns to Arm
strong, his heirs and assigns The land
was thereafter sold under foreclosure of
the mortgage from justice and conveyed
in fee simple by the commissioner to the
ancestor of the plaintiff with all pr;yi
leges and appurtenances thereto belonging
TO him, his heirs and assigns" without
covenants of warranty. and the land was
allotted to the plaintiff in the division of
his fathers estate. The plaintiff was
evicted under judgment in an action by
one claiming under 2 paramount title
and sues the defendant as administrator
of Armstrong for breach of covenant of
warranty
Held, that the plaintiff can maintain
the action for breach of the covenant;
that the reconveyance by mortgage from
Justice to Armstrong did not extinguish
the covenant, but the mortgage (Arm
strong) was entitled to the benefit OF the
covenant OF the mortgagor (Justice) as
indemnity against any acts of the mort
gagor tending TO impair the security of
the mortgage.
Held, further that there was no estop-
pei or rebutter, and when the land was
sold the benefit Of the original covenant
passed to the purchaser.
Held, further that the plaintiffs ac-
ton accrued upon eviction in 1901 and
is not barred; and that upon eviction the
Plaintiff is entitled to recover, not only
the purchase price, but also any amount
he was compelled to pay as reasonable
costs and expenses in defense of title, but
the plaintiff is not entitled TO recover
counsel fees in defending the title, un-
less it appears that he notified the coven
antor to come in and defend the title, and
the warrantor failed to comply.
Held, further, that the fact that no
assets have descended to the heirs OF
Armstrong will not defeat the plaintiffs
right TO have judgment against the ad
ministrator.
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