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100 4 E. 1, STAT. 3, CAP. 6, IMPLIED WARRANTY. yet that by the introduction of express covenants to that intent in the deed, the parties may regulate amongst themselves the extent of their liability, and will be considered as holding their separate shares independent of any implied warranties, or other conditions than what they have themselves chosen to express. Hence, the parties having there covenanted amongst themselves for quiet enjoyment and possession against themselves and those claiming under them, it was held that if the right of re-entry for breach of a condition implied could in any case be allowed in this country, the cove- nant would be a bar, in case of eviction by title paramount, to any re-entry by one of the parceners on the other. In Deakins v. Hollis, 7 G. & J. 311, of the three subscribing witnesses to a will one was a sister of the deceased, and another had married a sister. The will directed that after payment of debts the testator's estate should be adjusted according to the law of the land. It was objected that the two witnesses were incompetent, but on executing a conveyance and release of all their interest in the testator's real estate, they were admitted as competent. It was then insisted that the deed contained an implied warranty of title during the life of the grantors by force of the word "Dedi." But the Court of Appeals said that whatever may be the effect of the word "Dedi'' as importing a warranty, in relation to which they would express no opinion, yet in a conveyance which purported only to pass the rights of the parties and not the land itself, to give the term the signification and legal efficacy contended for would contradict the clear intention. "77 Effect of words "demise" and "grant."—* The words "demise" and "grant" amount to an implied covenant.4 Therefore in Baber v. Harris, 9 A. & E. 532, the defendant, lessee of certain premises, granted and assigned them by deed (not containing any express covenant to indemnify against the rent due, nor for quiet enjoyment,) to the plaintiff, who was distrained on by the superior landlord for rent due from defendant before the assignment; the plaintiff brought assumpsit to recover the money paid under the distress to liberate his goods, relying on an express promise by the defendant to repay it; but it was held that as covenant would lie upon the covenant implied in the word "grant," assumpsit would not lie on any contract to indemnify the plaintiff, nor on the express promise which was not founded on a new consideration, such as forbearance. And it seems from Barton v. Fitzgerald, 15 East. 530, that the words "bargain and sale" operate at common law like dedi et conressi in a grant, as a covenant for good title, unless they be specially qualified by some other covenant. So where the defendant demised land to B. for twenty-one years, and after- wards by the words, dedi, concessi. dimisi, et ad firmam tradidi, demised the same land to the plaintiff for life, who entered and was ousted by B. it was held that covenant lay against the defendant, for a term of years only was evicted and the lessee, the plaintiff, continued seised of the freehold, and therefore, because it was but a chattel that was evicted, the plaintiff by this action of covenant might have full satisfaction. And the words in the lease would enure to a double warranty, dedi, for a warranty of the * The word "let," or any other equivalent word, has the same effect- Mos- tyn v. West Mostyn Co., 1 C. P. D. 145. |
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Alexander's British statutes in force in Maryland. 2d ed., 1912
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