majority">Maxwell, J.

The petition alleges that on the first, day of April, 1867, the defendant, Emma Twiss, sold and conveyed by deed in fee simple to the plaintiff the north half of section nineteen, town one, range eighteen east, in Eichardson county, and that she covenanted with said plaintiff that she was lawfully seized of said premises, that they were free from incumbrances, and that she had good right and lawful authority to sell and convey the same; that plaintiff paid, at the time of the purchase, the sum of three thousand dollars, and secured the balance, being one thousand, dollars, by a mortgage on the premises; that a decree of foreclosure of said mortgage, for the sum of twelve hundred and sixty-four dollars and seventy-seven cents, was obtained in the fall of 1873; that an order of sale was duly issued to George Faulkner, sheriff of Eichardson county, commanding him to sell said premises to satisfy the said decree; that at the time of the execution of said deed to plaintiff there was a defect in the title to said premises, and said defendant Twiss was not well seized of said'premises and she had no good right and lawful'authority to- sell the same, and the same was not free from-incumbrance, in this, to-wit: that one Emmanuel Buler, a half-breed Indian, by virtue of the treaty of'Prairie Du Chien, had allotted to him said *136premises, and in tbe year 1860 a patent was issued to said Buler for the same, be being at that time seven years of age; that in tbe year 1865, Eli Bedard, as guardian of said Emmanuel, procured tbe sale of tbe premises as such guardian, by order of the proper court, as it is said, but there is no record of any of the proceedings of such guardian sale, as required by law, and so far as the proper records show, nothing appears properly and according to law, except tbe guardian’s deed for said tract of land to one Charles Gagnan, from whom Emma'Twiss derived title, having purchased said premises and received a deed therefor; that Emma Twiss well knew, at tbe" time of tbe sale of said premises to tbe plaintiff, of tbe defect in tbe record, but plaintiff was not aware of tbe same, but relied on tbe covenaiits and representations of said Emma Twiss; that said defendant resides somewhere in California, and plaintiff is informed and believes is entirely insolvent; that Emmanuel Buler is about tbe age of twenty-one years and is a resident of Canada, and plaintiff has no means of obtaining a title to said premises from him, and is in danger of being harassed, by a suit of said Buler or bis assigns, for tbe possession of said premises, and without said record being procured and perfected, upon which said title rests, plaintiff is in danger of losing said premises; that said Emma Twiss is -bound in equity to perfect said title, and should do so before being permitted to collect said purchase money, plaintiff being without any remedy at law to compel said Emma Twiss to refund to plaintiff any part of said purchase money, wherefore plaintiff prays for an injunction, etc.

Tbe defendant demurred to tbe petition, on tbe ground that tbe facts stated in tbe petition are not sufficient to constitute a cause of action. Tbe district court sustained tbe demurrer, and dismissed tbe petition, to which tbe *137plaintiff excepted, and tlie cause is now brought to this court by petition in error.

A covenant against incumbrances is defined to be one which has for its object security against those rights to, or interest in, the land granted, which may subsist in third persons to the diminution in value of the estate, though consistent with the passing of the fee of the estate. 2 Greenleaf Ev., Sec., 242. 1 Bouvier Law Dic., 406.

The. mere existence of an incumbrance constitutes a breach of the covenant, without regard to the knowledge of the grantee of its existence, but a party, in order to recover, must distinctly set forth in his petition the facts on which he bases his claim for relief. A demurrer only admits the facts stated in the petition, not inferences or conclusions. No facts are stated in the petition in this case, that negative the regularity of the sale by the guardian. It is stated that there is no record of the proceedings prior to the deed from the guardian to Gag-man, and “as far as the proper records show, nothing appears properly and according to lam.” The object of the petition appears to be to require the defendant to perfect the record. The statute of 1871, (Laws 1871, 216) provides the mode of supplying lost records on the half-breed tract in Richardson county, and, independent of - the statute, on a sufficient statement of the loss or destruction of the records, a court of equity would afford relief; but in this case there is' no sufficient statement of facts showing an incumbrance.

It is contended by the plaintiff, that the defendant was not seized of the premises in question, at the time of conveyance, therefore the covenant of seizin is broken, and the plaintiff is entitled to recover whatever damages he may have sustained by reason of the breach. The defendant contends that the covenant of seizin, if broken at all, was broken at the time of the conveyance, and *138does not run with, the land, and is merely a chose in action, against which the statute of limitations has run.

It is a general^ rule of law, that where no interest whatever passes from a grantor by a conveyance, the covenants contained in the deed cannot ran to a subsequent assignee. In such case, the covenants are merely personal and not assignable at common law. ' But if the grantor, at the time of the conveyance, was in the exclusive possession of the premises conveyed, under a claim of title, even if adverse to the owner, the covenant of seizin is not broken, until the purchaser or those claiming under him are evicted by title paramount. In' such case, the covenant of seizin is a real covenant annexed to the land, and passes with it to the assignee, to be enforced by him who is evicted by title jiaramount. Marston v. Hobbs, 2 Mass., 433. Backus v. McCoy, 3 Ohio, 221. Kirkendall v. Mitchell, 8 McLean, 145. Collier v. Gamble, 10 Missouri, 472. Boothby v. Hathaway, 20 Maine, 255. Beddoe v. Wordsworth, 21 Wend., 120.

In this case, for aught that appears in the petition, the defendant Twiss was in the exclusive possession of the premises, under a claim of title,.at the time of the conveyance to the plaintiff, and the plaintiff has remained in the quiet and peaceable possession thereof, ever since. Clearly, there has been no breach of the covenant of seizin. The judgment of the district court is therefore affirmed.

Judgment affirmed.

Chief Justice Lake, concurred. Gantt, J., did not sit.

Citation profile

How this case has been treated — in progress