Claycomb v. Munger

Citations

• 51 Ill. 373

Syllabus

<p>1. Covenants fob title—run with the land. A covenant of warranty in a deed, to the grantee, his heirs and assigns, runs with the land, and its benefits may be claimed by a remote grantee.</p> <p>2. Same—whether am, eniction necessary. To recover upon a covenant of warranty, there must be an eviction or something equivalent thereto. Anciently, an actual eviction had to be shown, but the present and better doctrine is, that a technical eviction is not necessary, but that the covenantee or his assigns may peaceably yield to a paramount title.</p> <p>3. The covenantee may make an effort himself to recover possession, if it be adversely held, or, if in possession, he may await an action by his adversary, or, being able to show his adversary has the superior title, may yield to it, and purchase it for his own protection, and then resort to his remedy on the covenant of warranty to him.</p> <p>4. Same—of the necessity of notice to the warrantor. It is not essential to a right of action on the covenant that the covenantor have notice to come in and defend the title he has warranted; the only purpose subserved by giving such notice is to relieve the covenantee from the necessity of showing that the judgment of eviction was upon a superior title.* </p> <p>5. In this case, the warrantor, before making the covenant sued upon, had executed a mortgage upon the premises, with a power of sale, under which the land was sold and a deed executed to the purchaser. This title the remote grantee purchased in for his own protection, and then sued upon the covenant. The warrantor had agreed to pay the mortgage, but did not, nor was it paid with his money: Notice to him, therefore, could have had no beneficial influence on his rights, and was unnecessary.</p> <p>6. Measube of damages—in am, action on a covenant of warranty. The measure of damages in an action on a covenant of warranty, where the plaintiff has purchased in an outstanding superior title, is the amount paid therefor, with i