Southern Pacific Co. v. Dore

KERRIGAN, J.

The appeal in this case is from an order sustaining the demurrer of the defendants without leave to amend.

[522]

The question, in the case is whether or not there is to be found in the conveyance set out in the complaint an implied covenant against encumbrances.

The complaint alleges that the deed signed and acknowledged by the defendants on the ninth day of July, 1907, was not delivered until June 2, 1910,- that for the years 1908, 1909, and 1910 the lands described in the deed were assessed for taxes in a sum which, with interest and accrued penalties, aggregated $8,804.01, when they were paid by plaintiff on June 21, 1913. For this sum plaintiff demands judgment together with the statutory rate of interest from said last-mentioned date.

The granting clause in the deed reads: “That the said parties of the first part ... do by these presents grant, bargain and sell unto the said party of the second part, and to its successors and assigns forever, all of their right, title and interest in and to the following tracts” (describing certain parcels of land).

The plaintiff relies for a recovery in this action upon the provisions of section 1113 of the Civil Code, which section, so far as material here, is as follows:

“From the use of the word ‘grant’ in any conveyance by which an estate of inheritance or fee simple is to be passed, the following covenants, and none other, on the part of the grantor for himself and his heirs to the grantee, his heirs, and assigns, are implied, unless restrained by express terms contained in such conveyance: . . .

“2. That such estate is at the time of the execution of such conveyance free from encumbrances done, made, or suffered by the grantor, or any person claiming under him. ...”

Plaintiff’s position on this appeal is that since the conveyance of July 9, 1907, contains therein the word “grant,” it implies in law a covenant that the land affected was free from encumbrances as provided in the section of the code just quoted—a covenant broken by the defendants in suffering the taxes assessed against the land to remain unpaid. The defendants’ position, on the other hand, is that the deed in suit is not within the purview of this section, for the reason that it does not purport to pass a fee,- that, on the contrary, the use of the words “all of their right, title and interest in and to” the land described had the effect, as a matter of law, to restrain or negative the implication of the statute.