General Warranty Deeds

Ownership by warranty deed gives the owner of property the most security in the property. The term “warranty” should give you a clue here, as the sense in which it is used in real property is not far off that in which it is used related to purchase of merchandise. For instance, in the sense with which you may be the most familiar, a “warranty” is an “” Similarly, a “warranty deed” (sometimes called a “general warranty deed”) means that the grantor makes certain guarantees about the title of the land.

In order to transfer by warranty deed, the deed must be in the form set forth in statute; in Indiana, this is also called “conveyance in fee simple”. Indiana Code § 32-17-1-2(a) states:

A conveyance of land that is: (1) worded in substance as “A.B. conveys and warrants to C.D.” (insert a description of the premises) “for the sum of” (insert the consideration); and (2) dated and signed, sealed, and acknowledged by the grantor; is a conveyance in fee simple to the grantee and the grantee's heirs and assigns with a covenant as described in subsection (b).

The term “covenant” here refers to certain guarantees given by a grantor when transferring by “conveyance in fee simple.” Such a deed represents a promise that:

[T]he grantor: (1) is lawfully seized of the premises; (2) has good right to convey the premises; (3) guarantees the quiet possession of the premises; (4) guarantees that the premises are free from all encumbrances; and (5) will warrant and defend the title to the premises against all lawful claims.^[1]

It is worthwhile to explore each of these in some detail, so you are familiar with the meanings which lie behind the warranties. However, you should note that, as we review the covenants, they somewhat run together; in other words, while separate in name, these covenants really refer to the idea of complete ownership of land, and a guarantee that the new owner owns the land without interference.

Lawfully Seized of the Premises

In legal history, someone was said to be “seized” or “seised” of land when they had possession of that property. The term is ancient, potentially coming into the English language via either Middle English or Old French; certainly, it has existed in American law since the Founding. For instance, John Adams argued for inclusion of the following regarding senatorial election:

Provided, nevertheless, that no person shall be capable of being elected as a senator, who is not of the Christian religion, and seised in his own right of a freehold within this commonwealth, of the value of three hundred pounds at least...[2]

While originally this term had many implications for feudal law and ceremony, at present, it simply means that the person selling or conveying the land in question owns legal title to it and has not stolen or otherwise acquired interest in the property illegally.

Good Right to Convey the Premises

“Good right to convey” means that the present owner, in addition to being the lawful owner, also has the legal right to sell or convey the property in question. This is closely linked to lawful seisen, as the former will usually imply the latter.

Quiet Possession of the Premises

Upon first reading the term “quiet possession” (sometimes also called “quiet enjoyment”) some assume that it has something to do with noise. It does not.  Quiet possession means that the new owner will not be challenged by any other person with claims to the property. Black’s Law Dictionary states that “quiet enjoyment” means:

A covenant, usually inserted in leases and conveyances on the part of the grantor, promising that the tenant shall enjoy the possession of the premises in peace and without disturbance, is called a covenant “for quiet enjoyment”.

There are few, if any, Indiana cases which deal with a breach of the covenant of quiet possession, at least in covenants of title. However, there are several cases which deal with the breach in a lease. Essentially, a breach of this covenant in a lease means that the landlord takes an action which interferes with the rightful lease of the property so that the tenant is evicted.

What will constitute a breach of the covenant for quiet enjoyment was defined in Upton v. Townend, 17 C. B. 64: “I think it may now be taken to mean this: not a mere trespass and nothing more, but something of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises.^[3]

In essence, the covenant of quiet possession is a guarantee that the owner will keep possession of the land, not title of the land, though the challenge to possession may come under a challenge to title. As noted in another Indiana case:

However, it has long been held that the covenant of warranty is a future covenant which is not breached until the grantee is evicted from the property, buys up the paramount claim, or is otherwise damaged. Nothing is more generally or more truly said then that ‘An eviction is necessary to a breach of the covenants for quiet enjoyment and of warranty.’^[4]

Convey Unencumbered Title

This covenant is essentially that the title to land, upon transfer, will be free from any claims against the land, such as liens, mortgages, etc. In a day and time when most real property is purchased using mortgages, and when judgment and tax liens freely attach to land without difficulty, this is an important covenant. For instance, the Court of Appeals dealt with this question in terms of IRS tax liens, concluding that:

From the moment the tax assessments were made on November 11, 2002, the real property in question became encumbered. See 26 U.S.C. §§ 6321, 6322. It is a breach of warranty to convey title that is not free from all encumbrances. See I.C. § 32–17–1–2(b)(4) ...Accordingly, the undisputed facts show Kelly breached his warranty to convey unencumbered title to the Grays, and National is entitled to judgment as a matter of law.^[5]

As noted above, the encumbrance in question could take many forms. For instance, in the following case, the Court of Appeals held:

It is undisputed that the Hudsons conveyed the real estate to McClaskey by warranty deed. Under a warranty deed, the transferor guarantees that the real estate is “free from all encumbrances and that he will warrant and defend the title to the same against all lawful claims.” IND.CODE 32–1–2–12.1 The existence of a highway easement constitutes a breach of a covenant against encumbrances. In the present case, the real estate was encumbered by a highway easement in favor of the State. The Hudsons' deed failed to reveal the existence of this easement. Thus, as a matter of law, the Hudsons breached their warranty of title.^[6]

Will Warrant and Defend

This covenant essentially means that the grantor will be part of any court case where she, he, or it may have breached another covenant. This may also result in the grantor paying part of the attorney fees of the grantee as well; whether or not this happens depends on how the case proceeds. For instance:

Because the Buckners were successful on their adverse possession claim, it follows that the Weyhriches breached their warranty of title to the Rieddles. The transferor by means of a warranty deed guarantees that the real estate is free from all encumbrances and that he will warrant and defend the title to the same against all lawful claims….Because the Weyhriches refused to defend the Rieddles' title against the Buckners' adverse possession claim, the Rieddles argue that they are entitled to reimbursement of $16,225 in attorney's fees, $720 in legal expenses, and $182.68 in personal litigation expenses, to defend their title against the Buckners….we adopt the result in Rauscher, and hold that only the reasonable attorney's fees and expenses the grantee expended in defending title are recoverable from the covenantor for breach of warranty of title.^[7]

In essence, the grantor refused to defend against their own breach of the warranty of freedom from encumbrances, the Court of Appeals awarded “reasonable” attorney fees to be paid from the grantor to the purchaser. However, note that the statute requires the grantor to defend against “lawful claims;” therefore, bad or unlawful court actions do not require the grantor to defend title.

[1] Ind. Code § 32-17-1-2(b).

[2] Adams, Charles Francis, editor. “Chapter II - On Government.” The Works of John Adams, Second President of the United States, by John Adams, vol. 4, Little, Brown, 1851.

[3] Avery v. Dougherty, 102 Ind. 443, 2 N.E. 123, 126 (1885)

[4] Outcalt v. Wardlaw, 750 N.E.2d 859, 863 (Ind. Ct. App. 2001)

[5] Kelly v. Nat'l Attorneys Title Assur. Fund, 955 N.E.2d 224, 227-28 (Ind. Ct. App. 2011)

[6] McClaskey v. Bumb & Mueller Farms, Inc., 547 N.E.2d 302, 304 (Ind. Ct. App. 1989).

[7] Rieddle v. Buckner, 629 N.E.2d 860, 864 (Ind. Ct. App. 1994)