Covenant Against Incumbrances

One which has for its object security against those rights to, or interests in, the land granted which may subsist in third persons to the diminution of the value of the estate, though consistently with the passing of the fee by the deed of conveyance. See Incumbrance. The mere existence of an incumbrance constitutes a breach of this covenant; 2 Washb. R. P. 658; Mc Lemore v. Mabson, 20 Ala. 137; without regard to the knowledge of the grantee; 2 Greenl. Ev. § 242; Butler v. Gale, 27 Vt 739; Medler v. Hiatt, 8 Ind. 171. Such covenants, being in prccsenti, do not otherwise, either by statute or decision Maine, R. S. 1883, p. 697, tit 9, § 18; Colorado, R S. 1883, 172; Georgia, Code 1882, 672; New York, Hall v. Dean, 13 Johns. 105; Colby v. Osgood, 29 Barb. 339; Ohio, Foote v. Burnet, 10 Ohio, 327, 36 Am. Dec. 90; Minnesota, Kimball v. Bryant, 25 Minn. 496; Missouri, Magwire v. Riggin, 44 Mo. 512; Hall v. Scott Co., 7 Fed. 341, 2 Mc Crary 356, Indiana, Martin v. Baker, 5 Blackf. 232; Wisconsin, Mecklem v. Blake, 22 Wis. 495, 99 Am. Dec. 68 (reversing the rule adopted in Pillsbury v. Mitchell, 5 Wis. 17); Iowa, Knadler v. Sharp, 36 la. 232; South Carolina, Brisbane v. M'Crady's Ex'rs, 1 N. & McC. 104, 9 Am. Dec. 676; Vermont, Cole v. Kimball, 52 Vt 639; and possibly in Michigan. See Rawle, Cov. § 212. If the covenant is so linked with another covenant as to have a prospective operation it runs with the land; id. This covenant is usually coupled with that of seisin in considering this question, but it was not treated as running with the land in this country so readily as the latter; Rawle, Cov. § 212. Yet the incumbrance may be of such a character that its enforcement may constitute a breach of the covenant of warranty; as in case of a mortgage; Hamilton v. CUtts, 4 Mass. 349, 3 Am. Dec. 222; Sprague v. Baker, 17 Mass. 586; Tufts v. Adams, 8 Pick. (Mass.) 547. The measure of damages is the amount of injury actually sustained; Delavergne v. Norris, 7 Johns. (N. Y.) 358, 5 Am. Dec. 281; Bean v. Mayo, 5 Greenl. (Me.) 94; Wyman v. Ballard, 12 Mass. 304; Batchelder v. Sturgis, 3 Cush. (Mass.) 201; Morrison v. Underwood, 20 N. H. 369; Willson v. Willson, 25 N. H. 229, 57 Am. Dec. 320; Rawle, Cov. § 188. The covenantee may extinguish the incumbrance and recover therefor, at his election, in the absence of agreement; Lawless v. Collier's Ex'rs, 19 Mo. 4S0; Willson v. Willson, 25 N. H. 229, 57 Am. Dec. 320. See Covenant; Real Covenant.

A covenant that there are no incumbrances on the land conveyed ; a stipulation against ali rights to or interests in the land which may subsist in third persons to the diminution of the value of the estate granted Bank v. Parisette, 68 Ohio St. 450, 67 N. E. 896; Shearer v. Ranger, 22 Pick. (Mass.) 447; Sanford, v. Wheelan, i2 Or. 301, 7 Pac. 324.

Defined under Covenant in Black's Law Dictionary.