Rex v. Creel

Citations

• 22 W. Va. 373
• 1883 W. Va. LEXIS 67

Syllabus

<p>1. If, atthetiinea conveyance with general warranty is made, the land conveyed is actually in the possession of a third party holding the same under a paramount title, this amounts to an eviction eo instanti. (p. 375.)</p> <p>2.Before an action will lie for a breach of covenant of general warranty of title to land, there must be an ouster under a paramount title. (11.375.)</p> <p>3.Such ouster may be established by showing that at the time the covenant was made, a third person was in possession of the land holding under a paramount title, (p. 375.)</p> <p>4.A covenant, that the grantor will warrant and defend the title against the claims of all persons whomsoever, is a personal covenant. (p. 376.)</p> <p>5. At common law, where the ancestor made a covenant of general warranty expressly binding “his heirs,” the heir might be sued for breach of such covenant; but the judgment would have to be satisfied out of the lands descended to him. (p. 377.)</p> <p>6. Since the enactment of chapter 86 of the Code suit in such case would have to be brought in equity, and would not lie at law, unless redress could not be given in a suit in equity, (p. 380.)</p> <p>7. Now under said chapter 86 a suit cannot be maintained at law against the heirs upon such a covenant of general warranty of title, (p. 380.)</p>