[a] The law will not imply covenants of seisin in a conveyance of land by deed.Fowler v. Smith, 2 Cal. 39.

[b] Words "good and sufficient deed" import only a conveyance good in form, and sufficient to pass the title actually held by the covenantor, and not that he would convey a good title.-Green v. Covillaud, 10 Cal. 317, 70 Am. Dec. 725.

[c] Words "grant, bargain and sell," do not warrant title.-Bryan v. Swain, 56 Cal. 616.

[d] A deed of grant, expressly granting a water right as an appurtenance to the land conveyed, implies a covenant against a previous conveyance thereof; and where such water right was appurtenant to the land, when the negotiations for purchase thereof were begun by the grantee, and was conveyed to a third person, prior to such deed of grant, the purchaser is entitled to recover from his grantor the value of the water right, as damages for the breach of such implied covenant.-Lyles v. Perrin, 134 Cal. 417, 66 Pac. 472.

FOR AUTHORITIES FROM OTHER STATES:

Covenants implied in conveyances: 2 Am. Dec. 234, note. See, also, 11 Cyc. 10451051; 14 Cent. Dig., cols. 33-47, §§ 7-19.

II. CONSTRUCTION AND OPERATION. IN GENERAL, § 4.

REAL OR PERSONAL, § 5.

PERSONS LIABLE ON PERSONAL COVENANTS, § 6.

[a] If a deed conveys a tract of land by metes and bounds, excepting therefrom such portion of such land as may have before been conveyed by the grantor to other persons, and contains a general covenant of warranty of the land thereby intended to be conveyed, and also a covenant that if any portion of the land has been before conveyed to other persons the grantor will convey to the grantee other lands of like quantity and quality; the former covenant relates to lands which the deed purports to convey, and not to the land which the grantor covenanted to convey in the latter covenant.-Vance v. Pena, 33 Cal. 631.

[b] Declaration in deed of general purpose to be accomplished near certain point in certain way is only a recital and not part of the covenant.-Roberts v. Krafts, 141 Cal. 28, 74 Pac. 281.

FOR AUTHORITIES FROM OTHER STATES:

Covenants of deeds, when grantees be. come liable upon: 47 Am. Rep. 473, note. See, also, 11 Cyc. 1051-1063; 14 Cent. Dig., cols. 47-72, §§ 20-37.

§ 5. Real or Personal.

[a] A proviso, in the habendum clause in a deed, to the effect that, if the grantee should ever sell any of the land conveyed, it should be sold to the grantor at a stipulated price, if construed as a covenant, is merely personal.-Maynard v. Polhemus, 74 Cal. 141, 15 Pac. 451.

FOR AUTHORITIES FROM OTHER STATES:

Real and personal covenants and distinctions between: 47 Am. Dec. 569, note.

§ 6. Persons Liable on Personal Covenants. [a] Covenant that grantee should sell to no one but grantor is personal and not bind

ing on heirs or assigns.-Maynard v. Polhemus, 74 Cal. 143, 15 Pac. 451.

[b] Under Civil Code, section 1113, providing that conveyances of realty, unless otherwise restrained, shall be subject to an implied covenant that it is free from incumbrances, which may be sued on as if expressed in the deed, a suit for breach of such implied covenant may be maintained against a mortgagee joining in the conveyance with the owner, since his obligation arises from the personal covenants implied in the deed.-— Holzheier v. Hayes, 133 Cal. 456, 65 Pac. 968.

[c] A covenant in a deed to a yacht club, that "in consideration of the conveyance, the lot should not be used for any business or store purposes, other than for hotel or lodging-house, or club purposes," is a personal covenant, which only binds the yacht club during its tenure, and does not bind it affirmatively to use the lot for club purposes, nor preclude the use thereof for a ferry by a successor in interest, whose deed contained no restriction, where such use is not shown to be injurious to the remaining property of the original grantor, and is in its nature beneficial to the public.-Los Angeles Terminal Land Co. v. Muir, 136 Cal. 36, 68 Pac. 308.

[d] Personal covenants bestowing benefits and imposing restrictions on the use of land may be enforced in equity against a subsequent purchaser with notice.-Hunt v. Jones (Cal. Sup.), 86 Pac. 686.

FOR AUTHORITIES FROM OTHER STATES:

See 11 Cyc. 1058; 14 Cent. Dig., col. 59, § 30.

§ 7. Persons Liable on Real Covenants.

[a] A conveyed land to B, bounding it on a certain street not laid out. He granted the right of way in the street, the "street forever to be and remain free and open as a public street." A died, and his other land, including the street, was partitioned among his heirs, his widow administering his estate. B prayed that A's heirs be compelled to open the street. Held, that he was not entitled to the relief sought; that there was no covenant binding the heirs; and that, if there was a breach of a covenant of seisin, plaintiff should have presented his claim for damages to A's administratrix.-McDonald v. McElroy, 60 Cal. 484.

FOR AUTHORITIES FROM OTHER STATES:

See 11 Cyc. 1101, 1102; 14 Cent. Dig., cols. 142-148, §§ 90-92.

§ 8. Dependent, Independent or Divisible. Dependent and independent Covenants in содtracts. See Contracts, § 121.

[a] Covenant to pay taxes is divisible.Ellis v. Bradbury, 75 Cal. 236, 17 Pac. 3. [b] Covenant for purchase money and covenant to convey are independent.-Donovan v. Judson, 81 Cal. 338, 22 ̊ Pac. 864.

[c] Intention of parties to make covenants dependent or independent is ascertained from their written agreement.-Donovan v. Judson, 81 Cal. 338, 22 Pac. 864.

[d] Where, by the terms of a contract for the sale of real estate the vendor agreed to execute a conveyance of the property on or before a specified date, provided the purchasers should, on or before that date, pay the balance of the purchase price, the covenants are mutual and dependent, and the purchasers cannot sue for damages for failure of the vendor to make the conveyance, unless the complaint alleges a full performance, or offer to perform, on their part; but it is sufficient to aver an offer in writing by the purchasers to pay the residue of the purchase money, accompanied by a demand for a deed; and it is not incumbent upon the purchasers to allege or prove an actual production or tender of the money to the vendor, in order to enable them to maintain the action, if the vendor did not signify his acceptance of the offer.-Peckham v. Stewart, 97 Cal. 147.

FOR AUTHORITIES FROM OTHER STATES:

See 11 Cyc. 1053; 14 Cent. Dig., cols. 5153, § 25.

§ 9. Limitation to Premises Conveyed. [a] P. conveyed to V. a certain tract of land, describing it by metes and bounds, excepting from it all that portion of land lying in a certain locality which might have been before conveyed to other persons by the grantor. The deed contained a covenant that, if any portion of this land had been before conveyed to any person except to one F., the grantor would convey to the grantee other lands equal in quality and quantity. The deed also contained a general covenant of warranty of the land "thereby intended to be conveyed." Held, that the covenant of warranty related to the land which the deed purported to convey, and not to the land contemplated by the former covenant.-Vance v. Pena, 33 Cal. 631.

vendor's title, and that he should then execute a deed. Held, that the title passed by the first deed at the time of its delivery, that the confirmation of title was not a condition precedent thereto, and that the agreement was merely for further assurance, and not for a future conveyance of the title.Smith v. Brannan, 13 Cal. 107.

[b] Defendant's grantor executed an instrument by which he released and quitclaimed to defendant land on which he had only a school land certificate of purchase, and by which he further agreed to perfect his title, and make defendant a good deed. Held, that the instrument was a quitclaim deed, and conveyed all the grantor's interest, and that the agreement for a subsequent deed was only a covenant of further assurance.-Wholey v. Cavanaugh, 88 Cal. 132, 25 Pac. 1112.

§ 13. Covenants Running with the Land.

[a] A and B, owning tracts of land separated by a stream, agreed that the waters thereof should be conducted to a reservoir on A's lands by ditches and flumes constructed at their joint expense, and that B might construct ditches and convey one-half the water to his own land. Held, that the agreement ran with the land, and that A's successor in interest could not, by going to a point higher up the stream and diverting the water to the reservoir, claim the whole of it for his own use.-Weill v. Baldwin, 64 Cal. 476, 2 Pac. 249.

[b] Covenants running with the land must be contained in grants of the estate.-Simson v. Mills, 80 Cal. 118, 22 Pac. 25.

§ 15.

Covenants Conferring Benefits. [a] Where one conveying a part of a tract of land conveys a portion of the water rising on the tract, a covenant by him as to the delivery of the water on the grantee's land is one which runs with the land retained by the grantor.-Bean v. Stoneman, 104 Cal. 49, 37 Pac. 777.

[b] A covenant in a deed, made for the benefit of the land conveyed, will run with But the land, and inure to a grantee thereof. a covenant between the grantor and grantee of a deed in fee, which merely imposes a burden of restrictions upon the grantee, and does not reserve or create any interest in the grantor, or establish a condition subsequent to the grant, and does not purport to inure to the protection of an assignee of the grantor, or to bind the assignees of the grantee, is personal in its nature, and does not run with the land or charge an assignee of the grantee with such burden.-Los Angeles Terminal Land Co. v. Muir, 136 Cal. 36, 68 Pac. 308.

Covenant of Right to Convey. [a] The covenant of right to convey being broken, if at all, as soon as made, the right of action thereon is a mere chose in action and does not run with the land.-Salmon v. Vallejo, 41 Cal. 481.

FOR AUTHORITIES FROM OTHER STATES:

$ 19.

See 11 Cyc. 1086; 14 Cent. Dig., cols. 101, 102, § 60.

Covenant Against Encumbrances. [a] The covenant against encumbrances, if broken at all, is broken upon the execution of the deed containing it; and therefore does not run with the land to a subsequent grantee. Salmon v. Vallejo, 41 Cal. 481.

[b] Covenant against encumbrances is personal and does not run with the land.Woodward v. Brown, 119 Cal. 294, 63 Am. St. Rep. 108, 51 Pac. 2.

§ 21.

Covenants of warranty, married woman's liability upon: 43 Am. Dec. 426, note. See, also, 11 Cyc. 1088; 14 Cent. Dig., cols. 104-106, § 64.

Covenants Imposing Burdens. [a] Under Civil Code, sections 1460-1466, specifying what covenants run with the land when contained in a grant of the estate,,the covenants in a contract to furnish water to certain land for irrigation purposes do not run with the land, not being contained in the grant of the estate, and no personal judgment can be had against a purchaser of the land for his refusal to perform them.-Fresno Canal etc. Co. v. Rowell, 80 Cal. 114, 13 Am. St. Rep. 112, 22 Pac. 53; Fresno Canal etc. Co. v. Dunbar, 80 Cal. 530, 22 Pac. 275.

FOR AUTHORITIES FROM OTHER STATES:

§ 22.

See 11 Cyc. 1089; 14 Cent. Dig., cols. 106-110, §§ 65, 66.

Covenants as to Use of Property. [a] A railway company obtained a right of way through land owned by a married woman in consideration of one dollar, and the covenants to maintain a depot, run daily trains, etc. The roadbed was abandoned, but not until after title to the property was acquired by the husband. Held, that the covenants, not being "made for the direct benefit of the property, or some part of it," as required by Civil Code, section 1462, did not run with the land, and the husband, not showing an express assignment of his wife's interest in the contract, and his wife not having joined in the action, cannot recover for failure on the part of defendants to perform.-Lyford v. North Pac. C. R. Co., 92 Cal. 93, 28 Pac. 103.

[b] Under Civil Code, section 1462, providing that every covenant contained in a grant of realty which is made for the direct benefit of the property runs with the land; and section 1461, directing that "the only covenants which run with the land are those specified in this title and those which are incidental thereto a covenant that the property conveyed shall not be used for any business purposes does not run with the land, but is a Cal. Digest, Vol. 2-85

[a] Covenant creating a water right as an appurtenance or easement runs with the land. Weill v. Baldwin, 64 Cal. 476, 2 Pac. 249.

[b] An agreement by a land owner to take water for irrigation purposes for a certain length of time from a certain company, it being stipulated that such covenant is to "run with and bind the land," is not a covenant running with the land, though it creates a lien on the land, as against any purchaser with notice.-Fresno Canal etc. Co. v. Rowell, 80 Cal. 114, 13 Am. St. Rep. 112, 22 Pac. 53.

§ 24. Breach in General.

[a] Premises are discharged from covenant of reconveyance if payment is not made or tendered as specified.-Low v. Henry, 9 Cal. 551.

[b] Without an eviction there is no breach of the covenant; but it is not necessary that the eviction should be by process of law, consequent on a judgment.-McGary v. Hastings, 39 Cal. 360, 2 Am. Rep. 456.

[c] A covenant that the tract conveyed, or that the grant under which it is held, includes a specified quantity, is personal, and, if broken, is broken as soon as made.Salmon v. Vallejo, 41 Cal. 481.

[d] Where covenants are mutual and dependent, neither party can put other in default without tendering performance unless it is waived.-Heine v. Treadwell, 72 Cal. 220. 13 Pac. 503.

§ 28. Covenant Against Encumbrances.

[a] The covenant against encumbrances, if not true, is broken as soon as made.-(1871) Salmon v. Vallejo, 41 Cal. 481.

[b] The fact that one of the deeds under which a grantor deraigned title contained a covenant that no liquor saloon should be maintained on the premises, with a condition of reversion in case of breach of such covenant, did not constitute a breach of the grantor's implied covenant against encumbrances, in the absence of any eviction or disturbance of the grantee, or any damage suffered by him.-Thurgood v. Spring, 139 Cal. 596, 73 Pac. 456.

FOR AUTHORITIES FROM OTHER STATES:

See 11 Cyc. 1111-1118; 14 Cent. Dig., cols. 173-198, §§ 111-129.

§ 29. Covenant for Quiet Enjoyment-Acts of Trespassers.

Damages for breach of. See post, § 1.

[a] The covenant for quiet enjoyment does not warrant against the acts of trespassers.

[a] The warranty implied in a sale made by general terms, under the system of the civil law, is equivalent to a covenant that the buyer shall quietly possess and enjoy, and nothing more. And to give a buyer a right of action upon this warranty, there must have taken place an actual judicial eviction, by the sentence of a competent tribunal, and this sentence carried into effect.Fowler v. Smith, 2 Cal. 568.

[b] Eviction need not be by legal process to constitute breach of covenant for quiet enjoyment.-Levinson v. Schwartz, 21 Čal. 229. [c] The rejection by the United States of the Mexican claim under which the covenantor held is sufficient eviction to support an action for a breach of the covenant of quiet enjoyment.-McGary v. Hastings, 39 Cal. 360, 2 Am. Rep. 456.

[d] A covenant for quiet enjoyment in a deed is broken whenever there has been an involuntary loss of possession by reason of the hostile assertion of an irresistible title. The paramount title need not be established by judgment before the covenantee will be authorized to surrender possession, nor need there be an actual dispossession. If the paramount title is so asserted that he must yield or leave, the covenantee may purchase or lease of the true owner, and this will be considered a sufficient eviction to constitute a breach.-McGary v. Hastings, 39 Cal. 360, 2 Am. Rep. 456.

[e] The fact that the title to land conveyed by a deed stands in a third person does not constitute a breach of the covenants implied therein, nor of an express covenant for quiet enjoyment, where the grantee enters and remains in the undisturbed possession of the land. Bryan v. Swain, 56 Cal. 616.

[f] There is no breach of covenant of quiet enjoyment without actual or constructive eviction.-Levitzky v. Canning, 33 Cal. 299; McAlester v. Landers, 70 Cal. 82, 11 Pac. 505.