Wempe v. Schoentag

Urner, J., delivered the opinion of the Court. An alleged breach of a covenant of special warranty in a deed from the defendants to the plaintiffs is the basis of this action. The trial resulted in a verdict and judgment for the plaintiffs, and the defendants have appealed. The deed containing the covenant sued on was executed on May 29th, 1930.

It conveyed six-tenths of an acre of land near the village of Benson, in Harford County. In 1921 the defendants had reserved that parcel of land from their conveyance to other grantees of a larger tract, of which the lot subsequently conveyed to the plaintiffs originally formed a part. The deed for the other portion contained a covenant, running with the land, that no building should be erected upon a designated portion of the lot reserved. The plaintiffs had no knowledge of that restriction when they accepted their deed from the defendants, but relied upon the covenant of special warranty.

Having been afterwards prevented by the owner of the dominant estate from building upon the ground to which the restriction applies, the plaintiffs, in this case, are claiming compensation from the defendants for the loss of property value thus occasioned. The defense to the suit is principally based upon the fact that, in the period between the conveyance which imposed the restriction, and that which invested the plaintiffs with the title to the servient land, the defendants had parted with that property and reacquired it after it had been the subject of several intermediate grants. It is urged also, as a defensive circumstance, that the defendants, who are husband and wife, were not co-owners of the lots conveyed and reserved, respectively, by the deed in which the restrictive covenant was included, the title having been ⁶⁴⁹ held by the husband alone, and the wife having joined in the deed simply for the purpose of releasing her dower. But reference should be made to the further fact that the reacquisition of the title, which the defendants later conveyed to the plaintiffs, was in consequence of the joint purchase of the property by the defendants under foreclosure of a mortgage taken in their joint names from the first grantee, and which mortgage another grantee who preceded the plaintiffs had assumed.

The effect of a covenant of special warranty is thus defined by the Maryland Code of Public General Laws: “A covenant by a grantor in a deed conveying real estate, That he will warrant specially the property hereby conveyed,’ shall have the same effect as if the grantor had covenanted that he, his heirs, devisees and personal representatives, will forever warrant and defend the said property unto the grantee, his heirs, devisees and personal representatives and assigns, against the claims and demands of the grantor and all persons claiming or to claim by, through or under him.” Article 21, sec. 76. Eo cases sufficiently analogous to be precedents for the determination of the present question have been cited by counsel or discovered by this coirrt. The decision depends upon the scope and effect of a special warranty of title as defined by the statute law of this state. The inquiry is whether such a covenant makes it the duty of the grantor to defend the title against claims which he may have created at any. prior time or only such as he may have originated during a period of his ownership immediately preceding the warranted grant.

In our judgment the defined purpose of the covenant does not admit of the suggested limitation. The grantor necessarily knows whether he has ever done any act to burden the title which he is conveying, while a grantee who relies,