Melville Fuller

“ Chancellor Kent pointed out in his Commentaries the danger from importing into a deed express covenants created by statute 'of imposition upon the ignorant and the unwary, if any covenant be implied, that it is not stipulated in clear and precise terms.' The covenant of warranty, and that of seisin or of right to convey, are not equivalent covenants. Defect of title will sustain an action upon the one, while disturbance of possession is requisite to recover upon the other. ”

“ While the supreme court of Missouri has held that the covenant created by the statute may be imposed upon a grantor, notwithstanding he has warranted generally in the conveyance, yet the rule is there equally well settled that the statutory covenant of seisin is merely a covenant for indemnity, and that nominal damages only are recoverable until the estate conveyed is defeated or real injury sustained. ”

“ In respect to deeds, the words are to be taken most strongly against the party using them, while in respect to statutes, if in derogation of the common law, as that under consideration is, they should be construed strictly. And, so construed, the statute of New Mexico seems clearly within the conclusion reached in Gratz v. Ewalt. The covenant that the grantor is 'seised of an indefeasible estate in fee-simple' is a covenant for a perfect title ”