THE COVENANT OF SEIZIN. In a number of the states it is held that the covenant of seizin means possession only, and it is therefore not broken if the grantor is in possession and delivers such possession to the grantee. So that, under this rule, if the grantor is in possession wrongfully at the time of the making of the deed, there would be no breach of the covenant. But in these states if there is anything in the covenant indicating that the vendor is in possession of a particular title, as an indefeasible fee simple, then there is a breach of the covenant if he does not hold under that particular title.
But in most of the states the courts repudiate the Massachusetts rule, and hold that possession alone is not sufficient to satisfy this covenant of seizin, and that it means a covenant of title as well as possession. That is, most of the states hold that a covenant of seizin imports that the grantor is not only in posses sion, but has the right of possession. In such states the covenant of seizin is defined to be an assurance to the purchaser that the grantor has the very estate in quality and quantity which he purports to convey, following the English rule. So that under this rule the covenant is broken if the grantor has merely an estate tail, or there is an outstanding estate for life or for years.
But the covenant of seizin is not broken by the ex istence of an easement which does not affect the seizin of the grantor, such as a public highway or ex ecution lien. The covenant is broken, if at all, as soon as the deed is given, and the statute of limitation governing the right of action for the breach of the covenant begins to run immediately. And the suit for the breach must be brought with the time fixed by the statute of limitation or the grantee cannot recover.
When a breach of this covenant occurs and an ac tion is brought, the plaintiff is not required by the course of the common law to aver eviction in his declaration, or to allege any special damages, nor is he required to set up any particulars of the para mount title. All that the plaintiff need do is to neg-a tive the title of the defendant. The defendant must plead affirmatively that he had a good title and sup port such plea by proof. If no proof is introduced the plaintiff is entitled to recover. The reason being, that at common law there was no registration of title deeds, and the evidence of title were the deeds that were given from the grantor to grantee, and the grantor was supposed to have in his possession at the time of granting the land all the evidence of title. The gran tee, therefore, if in doubt as to his title can bring suit and compel the grantor to show that the title granted is the very title granted in the deed. The burden be ing upon the grantor, or defendant, to prove affirma tively that the deed he gave was a good and sufficient deed covering the very title which it purported to con vey. .
But this rule of the common law has been changed by statute, so that generally it is necessary in draw ing a pleading for breach of the covenant of seizin to set forth affirmatively in what manner the covenant has been broken.