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St. Mary's Law Journal

Publisher

St. Mary's University School of Law

Abstract

The covenant of warranty runs with the land and is a guarantee by the grantor that title is vested in them and will vest in the grantee upon conveyance. Although the covenant of warranty is an indemnification for failure of title, in Texas it is the broadest of the deed covenants, encompassing the covenant of quiet enjoyment and the covenant against encumbrances. The covenant of warranty requires the grantor to defend title as well as to indemnify for its failure. When there is a warranted title after the conveyance is made, the grantor is estopped to assert this after acquired title against his grantee or those with which they have privity. An evaluation of the purpose of warranty offers the best test in determining the circumstances in which an after acquired title automatically passes to the grantee. When construing a warranty, it is necessary to determine the type of estate conveyed and whether the conveyance is valid. If the transfer of title is found ineffective, the next consideration is whether a breach occurred. Breach of warranty occurs due to both complete and partial failure of title. In order to establish a breach of warranty a grantee must prove two elements. First, there must first be an outstanding paramount title to constitute breach of warranty; a cloud on the title does not constitute a breach of warranty. Second, there must be an eviction in order to constitute a breach of warranty. Once a breach of warranty occurs, the covenant no longer runs with the land, and the applicable statute of limitations begins to run. The importance of the warranty is attributed to its wide us, and therefore must be construed appropriately.

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