Opinion
November, 1904.
David N. Heller, for the appellant.
G W. Buck, for the respondent.
By section 218 of the Real Property Law (Laws of 1896, chap. 547) it is provided:
"In grants of freehold interests in real property, the following or similar covenants must be construed as follows:
"1. * * *.
"2. Quiet enjoyment. — A covenant that the grantee `shall quietly enjoy the said premises,' must be construed as meaning that such grantee, his heirs, successors and assigns, shall and may, at all times thereafter, peaceably and quietly have, hold, use, occupy, possess and enjoy the said premises, and every part and parcel thereof, with the appurtenances, without any let, suit, trouble, molestation, eviction, or disturbance of the grantor, his heirs, successors or assigns, or any person or persons lawfully claiming or to claim the same."
A covenant for quiet enjoyment is a covenant in futuro and until breach runs with the land. (8 Am. Eng. Ency. of Law [2d ed.], 143.) The main object of a covenant for quiet enjoyment is to protect the lessee from the lawful claims of third persons having a title paramount to the lessor; but such a covenant when fully written out provides also for the protection of the lessee against the unlawful entry of the lessor himself. ( Mayor, etc., v. Mabie, 13 N.Y. 151, 156.)
Such a covenant as defined by the statute quoted should be considered as fully written out. The covenant contained in the plaintiff's deed is a plain prospective agreement that the grantor (plaintiff) would not trouble, molest, evict or disturb the grantee (defendant Ludwig Stabel).
In Sedgwick v. Hollenback (7 Johns. 376) it was held that in the case of a covenant for quiet enjoyment an entry by the covenantor himself tortiously and without title is a breach.
Kent in his Commentaries (Vol. 4, p. 473) says: "Any disturbance in the enjoyment of property contrary to the grant of the party creating the disturbance is a breach of covenant," and he refers to Seddon v. Senate (13 East, 63) in which it is said by BAYLEY, J.: "A covenant is nothing more than an agreement in construing which we have only to look to the fair meaning of the parties to it; and if the agreement were in substance and effect that the defendant would sell and assign to the plaintiff the sole right of making and vending the medicine for his profit and that the defendant would not interfere with him in making and vending it, that raises an implied covenant on the part of the defendant that he would not make and vend it; and if he do afterwards make and vend it, it is a breach of that implied covenant. * * * The grant of a water course implies a covenant by the grantor not to disturb by any act of his own the grantee in the enjoyment of it, and therefore that a subsequent act of disturbance by the grantor in stopping the water course would give the grantee an action of covenant against him. And if one make a lease of a house and estovers and afterwards cut down all the wood out of which the estovers were to be taken the lessee shall have his remedy by action of covenant against him, it being a misfeasance in him to annul or avoid his own grant."
The covenant for quiet and peaceable possession goes to the possession only and not to the title, and is broken only by actual entry and ouster or expulsion from or disturbance in the possession. (Gerard Tit. Real Est. [4th ed.] 528.)
In Waldron v. M'Carty (3 Johns. 471) the court say: "In good sense the covenant for quiet enjoyment has reference merely to the undisturbed possession and not to the grantor's title."
In Kortz v. Carpenter (5 Johns. 120) the court say: "The covenant for quiet enjoyment goes to the possession and not to the title. It appears to be a technical rule that nothing amounts to a breach of this covenant but an actual eviction or disturbance of the possession of the covenantee."
In the American and English Encyclopædia of Law (Vol. 8 [2d ed.], p. 103) it is said: "But while the main object of a covenant for quiet enjoyment is to protect the grantee or lessee from the lawful claims of third persons having a title paramount to that of the covenantor the covenant may be broken by a forcible entry or disturbance by the grantor or lessor, his heirs or executors. Where the acts done by the grantor amount to a claim of title by him the covenant is broken. It is not, however, every mere trespass by the covenantor upon the premises that will constitute a breach of this covenant; to have that effect the entry must amount to an assumption of title."
In the Cyclopedia of Law and Procedure (Vol. 11, p. 1119) it is said: "The covenant for quiet enjoyment extends to all acts of the covenantor whether tortious or not if committed under color of title.'
The distinction between a mere trespass by the covenantor and an entry upon the real property conveyed to the exclusion of the grantee is clearly recognized by the authorities and text writers and must be constantly borne in mind in determining the question as to whether a covenant for quiet and peaceable possession has been broken. Each case must be determined after a careful consideration of the facts upon which a breach of the covenant is claimed. When the covenantor with an assertion of right and assumption of title exclusively and permanently deprives the covenantee of the possession of the real property conveyed there would seem to be a plain violation of the terms of the agreement or covenant. In this case the defendant Ludwig Stabel was deprived of the possession of the real property and it was not necessary for him to resort to violence or an action at law to regain possession thereof. The plaintiff having deprived the defendant Ludwig Stabel of the consideration for the mortgage and having actually sold the real property to another for full value and put such subsequent purchaser into possession thereof in entire disregard of the defendant Stabel and his rights, should not be allowed to recover in this action as if he had fully performed the covenants in his deed. ( Cowdrey v. Coit, 44 N.Y. 382.)
The plaintiff does not claim that he is entitled to be considered as a mortgagee in possession.
The findings are not against the weight of evidence and we think the judgment should be affirmed, with costs.
Judgment unanimously affirmed, with costs.