this is a very different thing from giving a particular person or corporation the right to occupy a levee as a site for its warehouse solely for its own business, and to the exclusion of the general public, as was attempted by the ordinance in question. The fact that the common council stipulated that a small part of the structure might be used by the public for wharfage and transfer purpose does not alter the case. It can hardly be necessary to say that the fact that the defendant may have expended its money on the faith of this ordinance creates no equitable estoppel against the public, whose mere trustee the city is in prosecuting this suit. The defendant was bound to take notice of the extent of the powers of the common council from which it obtained the ordinance."

COVENANTS.

EPITOME OF CASES.

Sec. 93. Personal covenants. A grantee's cause of action, against a grantor for conveying, through mutual mistake, land other than that intended to be conveyed, is personal to the grantee, and not a covenant running with the land. Norris v. Colorado Turkey Honestone Co., 22 Colo. 162 (43 Pac. Rep. 1024). Citing, Sheld. Subr., § 37; Collins v. Swan, 7 Rob. (N. Y.) 623; Willoughby v. Middlesex Co., 8 Metc. (Mass.) 296; Lawrence v. Montgomery, 37 Cal. 183; Davis v. Clark, 33 N. J. Eq. 579; Chambliss v. Miller, 15 La. Ann. 713.

Sec. 94. Covenants running with the land. A covenant against incumbrances which are a money charge on the land runs with the land, and an action may be maintained thereon by a remote grantee, who has discharged the incumbrances, although such covenant is one of the covenants in a mortgage through which he acquired his title to the land by a purchase thereof at a foreclosure sale. Security Bank v. Holmes, 65 Minn. 531 (68 N. W. Rep. 113; 60 Am. St. Rep. 495). A covenant by a grantor that he "doth hereby cove

nant, promise, and agree that the house on the lot adjoining shall be forever hereafter restricted from having any building or part of a building attached to said messuage thereon erected of a greater height than ten feet from the surface of the yard," which is imposed in a subsequent conveyance of such adjoining lot upon the grantee and his assigns forever, will be construed as running with the land. Landell v. Hamilton, 175 Pa. St. 327 (34 Atl. Rep. 663; 34 L. R. A. 227). A covenant by a railroad company, in consideration of the grant of the right of way to it," to build and maintain a good fence on the right of way herein conveyed, immediately on the completion of the railroad," runs with the land. Lake Erie & W. R. Co v. Power, 15 Ind. App. 179 (43 N. E. Rep. 959).

Sec. 95. reversioner.

Covenants in conveyance by life tenant and Where the life tenant and the reversioner conveyed the top story of a building on their land to C., the reversioner covenanting to erect and maintain the roof upon such building, which covenant is performed by him as to the erection of the roof, and then the life tenant and the reversioner convey the remainder of the premises to another, C. cannot enforce against the latter the reversioner's covenant to maintain the roof, while the life tenant is living, for during such period the last grantee holds under the life estate and not under the reversion, and at most is only liable to contribute his equitable share of the cost of maintaining the roof. Rochester Lodge No. 21, A. F. & A. M. v. Graham, 65 Minn. 457 (68 N. W. Rep. 79; 37 L. R. A. 404).

Sec. 96. Covenants of warranty. An agreement under seal by a vendor to refund a part of the purchase price paid him for land" in the event of its being legally decided that the title to said land * is invalid, and the land is recovered by anyone having a superior title," amounts to a covenant of warranty upon which there may be a recovery for a loss of a portion of the land: Lehman v. Given, 177 Pa. 580 (35 Atl. Rep. 864). A grantee's right to rely upon the grantor's covenant of warranty is not affected by the fact that he had knowledge that the title conveyed to him was defective. Batterton v. Smith, 3 Kan. App. 419 (43 Pac. Rep

275). A covenant of one conveying land, that he will "war rant and defend the same against all lawful claims whatsoever," includes an incumbrance, the existence of which is mentioned in the conveyance, but no exception is made as to

it.

Welbon v. Welbon, 109 Mich. 356 (67 N. W. Rep. 338).

Sec. 97. Covenants against incumbrances. An existing easement is a breach of a covenant against incumbrances. Moore v. Johnston, 108 Ala. 824 (18 So. Rep. 825). An exception from a covenant against incumbrances of "taxes assessed" for a certain year does not include special assessments made for local improvements. Smith v. Abington Sav. Bank, 165 Mass. 285 (42 N. E. Rep. 1133). The right to the benefit of the covenant is unaffected by the fact that the party claiming it had notice of the existence of the incumbrance. Evans v. Taylor, 177 Pa. St. 286 (35 Atl. Rep. 635).

Sec. 98. Breach of covenants. Where a covenant which runs with the land was executed in the special interest of the possessory title, a tenant from year to year may maintain an action for a breach thereof as to the extent he has been damaged by such breach. Lake Erie & W. R. Co. v. Power, 15 Ind. App. 179 (43 N. E. Rep. 959). Where a statute (Ky. Stat. 1894, § 493) provides that a "covenant of general warranty" in a conveyance is equivalent to a covenant, in terms, to warrant the title "against the claims and demands of all persons whatsoever," and is, in effect, a "general warranty" of the title, it is held that in an action for a breach of warranty in a deed containing such general covenant, in which the deed is filed, it is sufficient for the complaint to state in substance the nature of the covenant in the deed. It is no defense to allege that the land conveyed was not worth the purchase price. Brady v. Peck, 99 Ky. 42 (34 S. W. Rep. 906; 35 S. W. Rep. 623). A judgment against a grantee in an action by him on a covenant of seisin is not a bar to a subsequent action by him for a breach of a covenant in the same deed against incumbrances. Moore v. Johnston, 108 Ala. 824 (18 So. Rep. 825). In North Carolina the statute of limitations does not begin to run against an action for a breach of warranty until there has been an ouster, although the

grantee knew that the title conveyed was defective. Mizel v. Ruffin, 118 N. C. 69 (23 S. E. Rep. 927).

Sec. 99. Breach of covenants-Eviction. A covenant of warranty is broken by the eviction of the grantee on account of the foreclosure of a mortgage executed by the grantor prior to his covenant. Jackson v. McAuley, 13 Wash. St. 298 (43 Pac. Rep. 41). Where a deed conveys no title to the grantee he is not bound to wait for an eviction before he can maintain an action for breach of covenant. Bolinger v. Brake, 4 Kan. App. 180 (45 Pac. Rep. 950). Surrender of possession by a covenantee to one asserting a title which is adjudged paramount, is a constructive eviction which gives the covenantee a right of action on his covenant. Wagner v. Finne gan, 65 Minn. 115 (67 N. W. Rep. 795).

nants.

Sec. 100. Measure of damages for breach of coveThe measure of damages for breach of warranty arising on account of failure of title to part of the land conveyed is the value of such part with interest from the delivery of the deed. Hunt v. Nolen, 46 S. C. 356 (24 S. E. Rep. 310). S. C. Act, 1824 p. 24, § 4, as amended in 1879, which provides that the measure of damages for the breach of a covenant shall be the amount of purchase money with legal interest "from the time of eviction," applies only to cases where there is an actual eviction and does not apply where the breach of warranty is a total failure of title to a part of the land conveyed of which portion the grantee has never had possession. Hunt v. Noel, 46 S. C. 551 (24 S. E. Rep. 543). Where the breach is of a covenant by a railroad company to maintain a fence along its right of way, loss of crops or pasture by the covenantee is an element of damages. Lake Erie & W. R. Co. v. Power, 15 Ind. App. 179 (43 N. E. Rep. 959).

Sec. 101. Breach of covenant of seisin. In an action for breach of covenant of seisin it is sufficient for the plaintiff to negative the words of the covenant. Evans v. Fulton, 134 Mo. 653 (36 S. W. Rep. 230). A covenant of seisin is broken, if at all, so soon as made, and thereby an immediate action accrues to him who has received it. Bolinger v.

Brake, 4 Kan. App. 180 (45 Pac. Rep. 950). A grantor's covenant that he is "seized in fee simple" of the property and has "good right and full power to convey the same," is broken as soon as made where the property is a part of a public street. Daisy Realty Cov Brown, (35 S. W. Rep. 637).

Ky.

Sec. 102. Measure of damages for breach of covenant of seisin. In the recent case of Bolinger v. Brčke, 4 Kan. App. 180 (45 Pac. Rep. 950), the court of appeals of Kansas say: "The general rule laid down by the courts of this country undoubtedly is that, upon breach of a covenant of seisin, the vendee will recover the consideration paid therefor, and interest; but where the grantee enters into the possession of the granted premises, and occupies the same, he is not entitled to interest during the time he so occupies the same, where he is not liable for the use of the granted premises. For a partial breach, damages are assessed, pro tanto according to the recognized standard of damages for a total breach and where the grantor conveys no title to some undivided interest in the estate, the value of the interest not conveyed is measured by the ratable part of the consideration, according to the relation that such interest bears to the several interests in which the estate is divided. Where two separate tracts of land are sold for a gross sum, and conveyed by deed with warranty of title, and the title fails as to one of the tracts, in an action for breach of covenant the measure of damages will be such portion of the consideration paid as the value of the tract lost bears to the value of the whole, and interest on such portion; but, where the title to a certain interest in the whole property conveyed fails, the measure of damages will be the pro tanto value of the whole property, measured by the con. sideration paid therefor, as the interest lost bears to the whole number of interests into which the estate is divided." The measure of damages for the breach of a covenant of seisin when the vendee has been deprived of possession is the consideration with interest; and where such consideration is paid with other property, it is the market value of such property with interest. Evans v. Fulton, 134 Mo. 653 (36 S. W. Rep. 230).