THE COVENANT OF WARRANTY. The covenant of warranty is the most important in a deed in this country. This sweeping covenant of general warranty includes nearly all the other cove nants. It dates back to feudal times, and was the covenant which enabled the tenant in tail to bar the entail by a common recovery.
This covenant as usually worded is, that the gran tor warrants and defends the granted premises against all claims of all persons whatsoever. It is more than a covenant for quiet enjoyment, being a covenant tc defend both the possession and the estate granted in the land, giving the grantee a right to call upon the grantor to make such defense as should be made in case an adverse title is set up.
This being the only covenant of title in which thel grantee can call upon the grantor to defend the title. Upon due notice given to the grantor, when a general covenant of warranty exists, he is obliged to come in and defend the title, or judgment may be taken against him. This notice must be definite and unequivocal, and expressly require the covenantor to appear and de fend. And by statute in some of the states the notice is required to be given in writing.
The judgment given where the covenantor has been properly notified to appear and defend is con elusive upon him since he thereby becomes either act ually or constructively a party to the suit. The gen eral rule is that the judgment of a court does not bind parties who are not parties to the action ; notice to the covenantor must be given to bring him out of this rule. So that if he is not properly notified the judg ment is not binding upon him.
But where the covenantor is not notified, and judg ment is taken against the grantee in favor of an ad verse claimant, the grantee may then bring suit upon the covenant of warranty, and by showing that the title was defective recover judgment against the gran tor for breach of warranty. The only difference be ing that two suits must be gone through with in this case.