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84]

pay for one trip per week, although he contin | vision last quoted, in a letter to the Postmaster-
ued to make daily trips in accordance with the
expedited schedule.

The difference between the amounts paid to the claimant under this last order and the amount he would have received under the allowance fixed by the former orders, according to the stipulation of the contracts, constitutes the principal demand in the present suit. A short time after the number of trips was increased on the first route from six to seven per week it was reduced back to six, and one month's extra pay allowed to the contractor as indemnity for the discontinuance. The petition sets up a demand for the fifty per cent thereon, which has been withheld by the Postmaster-General.

Another claim set up in the petition is for the amount deducted, as forfeitures alleged to be wrongfully imposed by the Postmaster-General, for failures by the contractor to cause the mail to be carried within the time prescribed. The petition was demurred to, and this appeal is from the judgment of the court sustaining the demurrer.

Messrs. A. J. Willard and Sam'l M. Lake
for appellant.

Mr. Robert A. Howard, Assist. Atty-
Gen. for appellee.

Mr. Justice Lamar delivered the opinion

the court:

of

The contracts in question were made in conformity with the provisions of SS 3960 and 3961 of the Revised Statutes. Section 3960 is as

follows:

"Compensation for additional service in carrying the mail shall not be in excess of the exact proportion which the original compensation bears to the original service; and when any such additional service is ordered, the sum to be allowed therefor shall be expressed in the order, and entered upon the books of the Department; and no compensation shall be paid for any additional regular service rendered before the issuing of such order."

General, dated July 20, 1881, held that "The
original letting, and not any subsequent in-
crease of service and pay,' was made "the
standard of limitation." It was in conformity
with this opinion that the Postmaster-General
withheld from the appellant the 50 per cent on
the expedited service under his contract.
We think it is clear that the language of the
proviso may be interpreted in accordance with
the original orders of the Post Office Depart-
ment and pursuant to the terms of the con-
tracts sued on. Those orders allowed the con-
tractor, for expedition, 50 per cent additional
upon the sum paid, for the service actually
performed. These allowances did not exceed
50 per cent of the rate of compensation fixed by
the contracts as originally let, though they did
exceed 50 per cent of the sum named in those
contracts. The proviso in express terms refers
to the "rate of pay" established in the contracts
as originally let; and it is the rate of pay, not
the amount expressed in the first contract,
which is manifestly intended to be the unit of
computation.

Our construction of this legislation, consid ered in pari materia with the provisions of

3960 and 8961, is this: Section 3960 treats the rate of pay for additional service as definitely fixed by the original contract, and under its provisions the compensation, which the contractor is to receive for each extra trip placed upon his route, is to bear an exact proportion to the additional service performed; that is, it is to be based upon the rate estab has direct reference to the compensation to be lished by the original contract. Section 3961 paid for the expedited service, and expressly provides that, in computing such compensation, the rate of pay fixed in the original con tract is to be taken as the standard of limitation, which shall not be exceeded. These two sections left it within the discretion of the Postmaster-General to expedite the service to [35] an indefinite extent, and to allow a pro rata compensation therefor. The proviso added in 1880 was clearly intended to limit that discre tion by providing that thereafter he should not have authority to expedite the service, under any contract, beyond 50 per cent of the rate The circumfixed in the original contract. stances under which contracts for the transportation of the mails are awarded, we think, Such awards are sustain this construction. made after public advertisement, and upon competitive bids; and it is presumed that the contract price is at as low a rate as can be made consistently with a proper performance of service. In the present case, it appears from the All the orders made by the Postmaster-Gen-record that the actual cost of the expedition oreral, subsequent to the execution of these contracts and whilst the service was in course of performance, were made after the Act of Congress of April 7, 1880, which contained this proviso:

Section 3961 provides:

"No extra allowance shall be made for any increase of expedition in carrying the mail unless thereby the employment of additional stock and carriers is made necessary, and in such case the additional compensation shall bear no greater proportion to the additional stock and carriers necessarily employed than the compensation in the original contract bears to the stock and carriers necessarily employed in its execution."

"Provided, That the Postmaster-General shall not hereafter have the power to expedite the service under any contract either now exist ing or hereafter given, to a rate of pay exceeding fifty per centum upon the contract as originally let." (21 Stat. at L. 72.)

The Attorney-General, construing the pro

dered upon the single one of the seven weekly trips upon the second route was more than 50 per cent of the aggregate sum named in the original contract. The interpretation on which the last order is based assumes that Congress intended to leave with the Postmaster-General

the power to exact from a contractor seven times the service stipulated in the contract as originally let, and to allow but 50 per cent compensation on the amount named in that contract.

The construction contended for by the appellant is in harmony with the previous legisla

[36]

[75]

[76]

tion on the subject, and the established policy | his heirs and assigns, in fee simple, certain real
of the mail service, and is entirely equitable.

As to so much of the demand as is claimed In the petition to be due to the petitioner under the contracts, and as to the 50 per cent of one month's extra pay, we hold and decide that the Court of Claims erred in sustaining the de

murrer.

But with regard to the claim for the amount deducted as forfeitures imposed by the Postmaster-General, because the contractor failed to cause the mail to be carried between the termini within the time prescribed, it is considered that these forfeitures were made by virtue of the power conferred upon the Postmaster-General by the statutes, and also recognized by the terms of the contracts to be within his discretion, and are not subject to review by this court. Chicago M. & St. P. R. Co. v. United States, 127 U. S. 406, 407 [32: 180]; Eastern R. Co. v. United States, 129 U. S. 391, 396 [32: 730, 732].

As far as the claim for the deduction of the amount of these forfeitures is concerned, the demurrer was properly sustained.

The judgment is reversed, and the case remanded for action in accordance with the principles of this decision.

WALLACE DOUGLASS, Plff. in Err.,

v.

CHARLES W. LEWIS ET UX.

(See S. C. Reporter's ed. 75-88.) Covenant in deed-construction of statute-corenants of warranty and seisin.

estate," describing it, and then continued, “and the defendants did by their said deed, for themselves, their heirs and personal representatives, covenant with the plaintiff, his heirs and assigns, amongst other things, that at the time of the making, ensealing, and delivery of said deed, and at the time of the execution of said conveyance,' they, the said defendants, were lawfully seised of an indefeasible estate, and in possession of a title in fee simple in and to the said property, and then had good right and full power to convey the same. Nevertheless, plaintiff avers that the said tract of land in said deed described, and by said defendants bargained and sold to said plaintiff, was not the property of said defendants, and at the time of the making and delivery of said deed they, the said defendants, were not lawfully seised of an indefeasible estate in fee simple in and to said real estate, nor had they then good right and full power to convey the same, but, on the contrary thereof, the Government of the United States had, at the time of the making and delivery of said deed, and still has, lawful right and title to said real estate; and plaintiff avers that in consideration of the conveyance and sale of said lands in said deed described and set forth, he paid to said defendants the sum of five thousand three hundred and thirty-three dollars and thirty-three cents ($5,333.33); that he, said plaintiff, has further expended and laid out large sums of money in building houses upon and improving said land, to wit, four thousand dollars ($4,000); and so the plaintiff says that they, said defendants, have not kept the said covenants according to the true intent and meaning of said deed, and according to the statute in such case made and provided, but have broken the same, to the damage of plaintiff in the sum of ten thousand

1. The introduction into a deed of an express cov-dollars ($10,000).'
enant of warranty has the effect to deny to the
purchaser the benefit of the statutory covenant
of seisin under the laws of New Mexico.

2. The words of a deed are to be taken most
strongly against the party using them; but stat-
utes, in derogation of common law, are to be con-
strued strictly.

"

Profert of the deed was made by the declaration, and defendants filed a demurrer, October 1, 1883, craving oyer of the condition of the said deed and covenant, which being read and heard, they insisted that the declaration and the matters therein contained, etc., were [77] insufficient in law. Pleas were also filed alleging that the deed was not defendants' deed; denying that the defendants covenanted with the plaintiff that they were lawfully seised; and averring that it was not true that they had not kept their covenants. Subsequently, and Argued April 3, 1889. Decided May 13, 1889. on the 19th day of October, an amended spe

8. The covenant of warranty and that of seisin or
of right to convey are not equivalent covenants.
Defect of title will sustain an action upon the lat-
ter, while disturbance of possession is requisite to
recover upon the former.

[No. 226.]

IN ERROR to the Supreme Court of the Ter
ritory of New Mexico, to review a judgment
of the Supreme Court of that Territory revers-
ing the judgment of the District Court for
damages for a breach of the covenant of seisin.
Affirmed.

Statement by Mr. Chief Justice Fuller:
Douglass brought his action in the District
Court of the Second Judicial District of the
Territory of New Mexico, September 11, 1883,
for the breach of an alleged covenant of seisin
in a deed made by Lewis and his wife to him,
purporting to convey the title to one hundred
and sixty acres of land. The petition averred
that the defendants by their deed of May 13,
1882, "did convey and warrant to the plaintiff,

cial demurrer to the declaration was filed,

averring "that the said deed upon in contand
no such covenant as the one alleged in the said
declaration of the plaintiff-that is to say, that
the said deed having some express covenants
therein contained, and among which is not the
covenant declared upon in the said plaintiff's
declaration, to wit, no covenant of seisin, or
'that the said covenantors were at the time of
making the said deed seised of an indefeasible
title in fee simple' to the lands conveyed, and
inasmuch as the parties have fully expressed
their intention and agreements at the time of
making the said deed by the express covenants
therein contained, there can be none added by
construction or otherwise; and, further, de-
fendants say the said declaration alleges no
eviction and therefore he, the said plaintiff,

[78]

ought not to have and maintain his said ac- | verdict. The case was carried by appeal to
tion," etc.

This, upon argument, was overruled November 3, 1883, the District Judge filing his opinion thereon January 8, 1884, which thus concludes: "In the case at bar I am of opinion that the express covenant of warranty is independent of the covenant of seisin implied by the statute, and that an action may be maintained upon the latter, and can only be met by plea and proof of good title in the grantor at the time of the execution of the deed."

On the 16th of May, 1884, the defendants filed two pleas, alleging, in the first, that at the time of making the deed the grantors were seised and possessed of the said real estate, with full power and authority to convey according to the effect of the deed; and, in the second, that at the time of making the said deed the grantors "were lawfully seised of an indefeasible estate and in possession of a title in fee simple in and to the said real property, and then had good right and full power to convey the same" according to the form and effect of said deed. The plaintiff demurred to the first of these pleas, the court sustained the demurrer, and the case went to trial on the issue made up on the second plea. Evidence was given on behalf of the plaintiff tending to show that the United States had assumed ownership and control over all the land in controversy and had disposed of a portion of the same, and that the defendants claimed that the land had been granted by Spain or Mexico to one Sandoval, who devised it to one of his relatives, from whom it had descended to the grantor of defendant Lewis, but that the claim of Sandoval had never been presented to any tribunal or officer of the United States for adjudication. All the documentary evidences of title offered on defendants' behalf, except the will of Sandoval and papers relating thereto, bore date in 1879 or subsequent thereto. The oral testimony tended to show that Sandoval and his descendants were in possession of the land for a number of years, probably from the date of the Treaty of Guadalupe Hidalgo.

the supreme court of the Territory, which
court reversed the judgment of the district
court and dismissed the cause, from which
judgment of the supreme court the pending
writ of error was prosecuted. The supreme
court of the Territory held that the effect of
the introduction into the deed of an express
covenant of warranty is to deny to the pur-
chaser the benefit of the statutory covenant of
seisin and said: "As there is no pretense in
this case of an eviction or any claim whatever
of a breach of the covenant of warranty, it fol-
lows that the action cannot be maintained, and
that it was error in the court below to order a
verdict for the plaintiff, and in overruling the
motion in arrest of judgment."

Messrs. J. H. McGowan and C. W. Hol-
comb, for plaintiff in error:

The warranty found in the deed does not exclude the statutory covenants, but these must be considered as express covenants, having the same effect as though written in full in the instrument.

Alexander v. Schreiber, 10 Mo. 460; Browning v. Wright, 2 Bos. & P. 14; Howell v. Richards, 11 East, 633; Bender v. Fromberger, 4 U. S. 4 Dall. 436 (1: 898); Funk v. Voneida, 11 Serg. & R. 109; Brown v. Tomlinson, 2 Greene (Iowa) 525; Hesse v. Stevenson, 3 Bos. & P. 565; Gainsford v. Griffith, 1 Saund. 59; Smith v. Compton, 3 Barn. & Ad. 189; Roebuck v. Dupuy, 2 Ala. 535; Gates v. Caldwell, 7 Mass. 68; Carver v. Louthain, 38 Ind. 530; Kent v. Cantrall, 44 Ind. 452; Bush v. Person, 59 U. S. 18 How. 82 (15 : 273).

The statutory covenant of seisin is a general
covenant, unrestricted by words found in the
second statutory covenant.

Browning v. Wright, 2 Bos. & P. 13; Du
vall v. Craig, 15 U. S. 2 Wheat. 45 (4: 180);
Peters v. Grubb, 21 Pa. 460; Rowe v. Heath, 23
Tex. 619; Morrison v. Morrison, 38 Iòwa, 73;
Sumner v. Williams, 8 Mass. 162.

The covenant of seisin is broken, if at all, as
soon as it is made.

King v. Gilson, 32 Ill. 348; Ross v. Turner, 7 Ark. 132; Abbott v. Allen, 14 Johns. 248; Moore v. Merrill, 17 N. H. 75; Logan v. Moul der, 1 Ark. 313.

Messrs. Samuel Shellabarger and J. M.
Wilson, for defendants in error.

Plaintiff admitted that he was put into pos-
session of the land and had never been dis-
turbed in the possession, and, in effect, that
he had never made demand for restoration of
the consideration money or what might have The plaintiff, in an action on the covenant
been expended for improvements, nor had any of seisin, need only declare the breach, and is
demand been made on him to surrender the not required to aver either eviction or damages.
land prior to the commencement of the suit, Pollard v. Dwight, 8 U. S. 4 Cranch, 421
nor had he offered to rescind or to restore the (2: 666); Mitchell v. Hazen, 4 Conn. 495; Ham-
land. The court refused to admit the muni-ilton v. Wilson, 4 Johns. 72; Lot.v. Thomas,
ments of title relied on by the defendants, and 2 N. J. L. 407; Pringle v. Witten, 1 Bay, 256;
charged the jury as follows: "There is no Share v. Anderson, 7 Serg. & R. 43.
question of fact in this case for you to pass
upon. There are only questions of law which
it is the duty of the court to pass upon, and
the entire responsibility of passing upon such
questions is with the court. The court in-ion of the court:
structs the jury that it is their duty, under the
law and the evidence in this case, to find a ver-
dict for the plaintiff and assess his damages at
the sum of $5,333.33, being the amount of the
money paid by him for the land in question."
The jury returned a verdict accordingly, and
motions for a new trial and in arrest of judg-
ment were made by the defendants and sever-
ally overruled, and judgment rendered on the

[79]

Mr. Chief Justice Fuller delivered the opin- [80]

Assuming that defendants in error failed to sustain their plea that they "were lawfully seised of an indefeasible estate, and in possession of a title in fee simple in and to the said real property, and then had good right and full power to convey the same," counsel for plaintiff in error state their position "in the following propositions: 1. The covenant of warranty which is found written in the deed

does not exclude the statutory covenants; | of the execution of such deed seised of the these latter must be considered as express hereditaments and premises thereby granted, [81] covenants, having the same effect as though bargained, and sold, of an indefeasible estate written out in full in the instrument of con- in fee simple, free from all incumbrances (rent veyance. 2. The statutory covenant of sei- and services due to the lord of the fee only exsin is a general covenant, unlimited by any cepted), and for quiet enjoyment thereof restrictive words found in the second statutory against the bargainor, his heirs and assigns, covenant. 3. The covenant of seisin is broken, and all claiming under him, and also for furif at all, as soon as it is made. 4. The plaintiff ther assurance thereof to be made by the bar. is only required to declare its breach, and need gainor, his heirs and assigns, and all claiming neither aver eviction or damages. 5. The bur- under him, unless the same shall be restrained den of proof is on defendant. 6. The measure and limited by express particular words conof damages is the purchase money and in-tained in such deed; and that the bargainee, his heirs, executors, administrators, and assigns, respectively, shall and may, in any action to be brought, assign a breach or breaches thereupon, as they might do in case such covenants were expressly inserted in such bargain and sale."

[82]

terest."

The defendants in error by their deed entered
into a general covenant of warranty, but it is
claimed that in virtue of the statute they are
to be held in addition to a general covenant of
seisin, a limited covenant as to incumbrances,
and a general covenant of further assurance.
The statute relied on is as follows:
"The words 'bargained and sold,' or words
to the same effect, in all conveyances of heredi-
tary real estate, unless restricted in express
terms on the part of the person conveying the
same, himself and his heirs, to the person to
whom the property is conveyed, his heirs and
assignees, shall be limited to the following
effect: First. That the grantor, at the time of
the execution of said conveyance, is possessed
of an irrevocable possession in fee simple to the
property so conveyed. Second. That the said
real estate, at the time of the execution of said
conveyance, is free from all incumbrance made
or suffered to be made by the grantor, or by
any person claiming the same under him.
Third. For the greater security of the person,
his heirs and assignees, to whom said real
estate is conveyed by the grantor and his
heirs, suits may be instituted the same as if the
conditions were stipulated in the said convey-
ance. Compiled Laws, New Mexico, 1884,
§ 2750, p. 1306.

The language used is somewhat ambiguous, arising, as the Supreme Court of the Territory informs us, from the section having been orig, inally enacted in Spanish from English and then retranslated, but we are content with the view of that court that "hereditary real estate means real estate of inheritance, and "possessed of an irrevocable possession in fee simple means seised of an indefeasible estate in fee simple.

At common law, in the transfer of estates of freehold by deed, a warranty was implied from the word of feoffment, dedi, and from no other word; and from words of bargain and sale merely no covenant was implied in any

case.

In 1707, the Statute of 6 Anne, chap. 35, was enacted, of which the 30th section is as follows: "In all deeds of bargain and sale hereafter enrolled in pursuance of this Act, whereby any estate of inheritance in fee simple is limited to the bargainee and his heirs, the words 'grant, bargain and sell' shall amount to, and be construed and adjudged in all courts of judicature to be, express covenants to the bargainee and his heirs and assigns, from the bargainor for himself, his heirs, executors and administrators, that the bargainor, notwith standing any act done by him, was at the time

And in 1715 an Act was passed by the
Colony of Pennsylvania, entitled "An Act for
Acknowledging and Recording of Deeds," of
which the 6th section déclared that:

"All deeds to be recorded in pursuance of
this Act, whereby any estate of inheritance in
fee simple shall hereafter be limited to the
grantee and his heirs, the words grant, bargain,
sell, shall be adjudged an express covenant to
the grantee, his heirs and assigns, to wit, that
the grantor was seised of an indefeasible estate
in fee simple, freed from incumbrances done
or suffered from the grantor (except the rents
and services due to the lord of the fee), as also
for quiet enjoyment against the grantor, his
heirs and assigns, unless limited by express
words contained in such deed, and that the
grantee, his heirs, executors, administrators,
and assigns, may in any action assign breaches
as if such covenants were expressly inserted."

་

In Gratz v. Ewalt, 2 Binney, 98, the con struction of this statute was carefully consid ered, and Tilghman, C. J., in delivering the opinion, said: "The meaning is not clearly expressed; but I take it to be a covenant. that the estate was indefeasible as to any act of the grantor. For if it was intended that the covenant should be that the grantor was seised of an estate absolutely indefeasible, it was improper to add the subsequent words freed from incumbrance done or suffered by him.' The words 'seised of an indefeasible estate in fee simple' are to be considered, therefore, as not standing alone, but in connection with the words next following, freed from incumbrances done or suffered from the grantor.' I am the more convinced that this was the intention of the Legislature, by comparing the expressions in this Act with the 30th section of the Statute of 6 Anne, chap. 35, which contains provisions on the same subject, and was evidently in the eye of the persons who framed our law. The British statute makes use of more words, and the intention is more clearly expressed. It declares that the words 'grant, bargain and sell' shall amount to a covenant that the bargainor, notwithstanding any act done by him, was at the time of the execution of the deed seised of an indefeasible estate in fee simple, etc. Our law seems intended to express the substance of the British statute in fewer words, and has fallen into a degree of obscurity, which is often the consequence of

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[84]

[85]

attempting brevity. I can conceive no good
reason why our Legislature should have wished
to carry this implied warranty further than the
British statute did, because it has bad effects to
annex to words an arbitrary meaning far more
extensive than their usual import, and which
must be unknown to all but professional men.
It might be very well to guard against secret
acts of the grantor with which none but him-
self and those interested in keeping the secret
could be acquainted. As for any further war-
ranty, if it was intended by the parties, it was
best to leave them to the usual manner of ex-
pressing it in plain terms."

The Statute of Anne, the Pennsylvania Act,
and the foregoing extract from the opinion of
Chief Justice Tilghman, are given by Mr. Rawle
in his admirable work on Covenants for Title
(5th ed. §§ 282, 283 et seq.), and he states that
"the construction thus given has never been de-
parted from in Pennsylvania; and it is said by
Chancellor Kent (4 Comm. 474) that by the
decision in Gratz v. Falt the words of the
statute are devested of all dangerous tendency,
and that it will equally apply to the same stat-
utory language in other States.'

The provision upon this subject in the stat-
utes of Alabama, Arkansas, Illinois and Mis-
sissippi is substantially the same as in Penn-
sylvania, and the same construction has been
put upon it by the courts. Stewart v. Ander-
son, 10 Ala. 504; Winston v. Vaughan, 22
Ark. 72; Finley v. Steele, 23 Ill. 56; Weems v.
McCaughan, 7 Smedes & M. 427. It is con-
tended, however, that the statute of Missouri
so differs from the Statute of Anne and that of
Pennsylvania as to require a different construc-
tion, which has been given it in Alexander v.
Schreiber, 10 Mo. 460, and that as the statute of
New Mexico was taken from that of Missouri,
the construction put upon the latter should be
accepted as correct.

The language of the statute of Missouri (Gen.
Stat. Mo. p. 444, § 8) is as follows:

conceded that a special covenant will restrain
general one, where the two are absolutely irre-
concilable, yet the courts have inclined very
much to let both stand. A covenant is to be
construed most strongly against the covenantor,
and in giving effect to the intention of the par-
ties to an instrument of conveyance, the courts
have kept this principle in view. Where the
particular covenants and the general covenants
are entirely independent of each other, and of
a different character, they will all stand. The
statute enumerates the three covenants which
the words 'grant, bargain and sell' are de-
clared to imply, as distinct and independent
covenants. The second may be superfluous,
but it does not therefore limit the first, which
is independent of and inconsistent with it.”

It appears to us, however, that where the
question arises, not upon the covenants in
deed, but upon the construction of a statute,
which turns certain words of grant into express
covenants, the same rule of construction does
not apply. In respect to deeds, the words are
to be taken most strongly against the party
using them, while in respect to statutes, if in
derogation of the common law, as that under
consideration is, they should be construed
strictly. And so construed the statute of New
Mexico seems clearly within the conclusion
reached in Gratz v. Eralt. The covenant that
the grantor is "seised of an indefeasible estate
in fee simple" is a covenant for a perfect title,
and to couple with it a covenant that the land is
free from incumbrances, "made or suffered to be
made by the grantor, or by any person claiming
the same under him," is incongruous and re-
pugnant, unless the prior covenant is held to
mean, "notwithstanding any act done by the
grantor."

Apart from this, as the statute in vests the
words "bargained and sold" with an effect they
did not possess at common law, we think it
was not intended that those words should so
operate where the parties themselves have en-
tered into covenants. In Weems v. McCau

ticular words are only intended to be operative
covenants raised by law from the use of par-
where the parties themselves have omitted to
insert covenants. But where the party de-
clares how far he will be bound to warrant,
that is the extent of his covenant."

"The words 'grant,' 'bargain' and 'sell,' in
all conveyances in which any estate of inherit-ghan, 7 Smedes & M. 427, it is said: "The
ance in fee simple is limited, shall, unless re-
strained by express terms contained in such
conveyances, be construed to be the following
express covenants on the part of the grantor,
for himself and his heirs, to the grantee, his
heirs and assigns: First. That the grantor was,
And the same result is reached and an-
at the time of the execution of such convey- nounced by the Supreme Court of Illinois
ance, seised of an indefeasible estate, in fee in Finley v. Steele, 28 Ill., 56, in which case
simple, in the real estate thereby granted. Sec-
ond. That such real estate was, at the time of
the execution of such conveyance, free from
incumbrances done or suffered by the grantor,
or any person claiming under him. Third. For
further assurances of such real estate to be
made by the grantor and his heirs to the gran-
tee and his heirs and assigns; and may be sued
upon in the same manner as if such covenants
were expressly inserted in the conveyance."

And the Supreme Court of Missouri, in Al exander v. Schreiber, supra, after citing many cases holding that where a deed contains a limited covenant that the premises are free from incumbrances, and also a general covenant of warranty, the one does not limit the other, thus proceeds: "It is apparent from these cases, to which we have briefly referred, that whilst it is

Mr. Justice Walker, speaking for the court,
says that "this statutory provision does not
the parties;" that "the employment of any lan-
create this covenant against the intention of
tended that these words should not have such
guage from which it appears the parties in-
an effect," does away with the statutory cove-
nant; that all statutes in derogation of the com-
mon law must be construed strictly; that if
there is a doubt whether, where there is a gen-
eral covenant of warranty in the deed, such a
case is embraced within the provisions of the
statute, it should not be held as controlling the
rights of the parties; that "there is scarcely a
court before which this Act has come for a
construction, that has not characterized it as a
provision of dangerous tendency, calculated to
entrap the ignorant and unwary into liability

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