Levine v. Hull

Stockbridge, J., delivered the opinion of’-the Court. On the 31st day of July, 1909, Olive E. Hull and Charles •J. Hull, her husband, conveyed to Rebecca, Levine and Hyman Levine five lots of ground in the 13th District of Baltimore County. ⁴⁴⁵ In the deed conveying them was the following covenant: “And the saicf grantors hereby covenant that they have not done or suffered to be done any act, matter or thing whatsoever to encumber the property hereby conveyed; that they will warrant the same specially, and will execute such further assurances of the same as may he requisite.” The present suit is one for damages for the alleged violation of this covenant, the violation consisting in a right of way held or enjoyed by a third party over portions of the land ■conveyed. It will be observed that the covenant quoted is in reality three covenants; one against encumbrances, one of special warranty, and one for further assurances. The defendant demurred to the declaration, and the demurrer being sustained, upon the declination of the plaintiffs, appellants here, to amend, a judgment was entered for the defendants'.

The narr. charges' that the right of way was asserted in December, 1916, by George S. M. Kiefer and Sarah E. Kiefer, his wife, filing a bill for injunction, in which litigation they were successful, and an injunction was made perpetual against the interference by the defendants, Levine anot wife, by a decree passed on the 22nd of March, 1917. It is from the judgment in the damage case that this appeal has been taken. There is thus presented to this Court but a single question, viz.; the effect of the covenant against encumbrances contained in the deed from Charles J. Hull and wife to the plaintiffs — is it to be regarded simply as a covenant for special warranty and, therefore, a repetition to that extent of that which was embraced in the second of the covenants, to which attention has already been directed;’ or does the covenant against encumbrances have a wider scope and effect •than this; or to state it a little differently, is a, covenant ⁴⁴⁶ against encumbrances broader and more extensive than a covenant of special warranty ? Tbe declaration nowhere alleges as- to when, how or by whom the right of way was created or came into- existence, whether before or after the conveyance to the present defendants.

If it was created after such conveyance it would undoubtedly be covered by the covenant for special warranty, because as was said in Lowes v. Carter, 124 Md. 684 , quoting from Hayes v. Richardson, 1 G. & J. 384 ; “All rights, encumbrances or conveyances touching or in any wise concerning land should appear on the public land records.” The statement of law most favorable to the present defendants is that contained in 7