The covenant of seizin runs with the land, and an action for breach of said covenant can be maintained by a remote grantee. If the original covenantor had no title whatever to the premises and no possession thereof at the time of the execution of his deed, the covenant of seizin was broken immediately upon the delivery of the deed, and the right of action accrued immediately in favor of the grantee in said deed. If said grantee subsequently executed a deed to said premises, the execution and delivery of said deed operated as an assignment of the cause of action that the grantee in said deed had against his covenantor for breach of the covenant of seizin, and gave to said remote grantee the right to maintain an action against the original grantor for breach of said covenant. Said action, however, would have to be brought by said remote grantee within the period of the statute of limitations from and after the execution and delivery of the original deed. The question of whether or not the original covenantor had possession at the time of the execution and delivery of his deed is wholly immaterial, under the rule in this state. He is bound by the covenant if his title and right to possession wholly failed, whether he ever had actual possession or not.
The grantor conveyed to the original grantee, by warranty deed, land subject to a mortgage. The mortgage was foreclosed, and a sheriff's deed was delivered to appellant remote grantor, who later conveyed the land to the intermediate grantor subject to the usual covenants of warranty. The intermediate grantor conveyed the land to appellee remote grantees by a special warranty deed. The original grantee sued to vacate and set aside the foreclosure sale under the mortgage for lack of jurisdiction. Appellees filed a cross-petition against appellant, seeking a judgment in the amount of the consideration appellees paid to the intermediate grantor. The court found in favor of original grantee and appellees. On appellant’s appeal, the court affirmed the judgment in favor of appellees.
Did the covenant of seizin run with the land, so that an action thereon might be maintained by a remote grantee?
The covenant of seizin ran with the land, even though appellant remote grantor never had actual possession of the premises. When appellant executed the deed to the intermediate grantor, a right of action arose for breach of the covenant of seizin because appellant did not have title or a right of possession. The right of action passed by virtue of the subsequent deed to appellee remote grantees.