Page:North Dakota Reports (vol. 3).pdf/46

 covenant: “And the said Joseph Dietrich, party of the first part, for his heirs, executors, and administrators, does covenant with the party of the second part, his heirs*and assigns, that he is well seized in fee of the lands and premises aforesaid, and has good right to sell and convey the same in manner and form aforesaid, and that the same are free from all incumbrances,” etc. It is not claimed in this court that either of the defendants is liable upon the last covenant quoted, as by its terms it is limited to the heirs, executors, and administrators of Joseph Dietrich. See Bowne v. Wolcott, 1 N. D. 497; 48 N. W. Rep. 426. Section 3249, Comp. Laws, provides: “From the use of the word ‘grant’ in any conveyance by which an estate of inheritance or fee simple is to be passed, the following covenants, and none other, on ,the part of the grantor, for himself and his heirs, to the grantee, his heirs and assigns, are implied, unless restrained by express terms contained in such conveyance: First. * * * Second. That such estate is at the time of the execution of such conveyance free from incumbrances done, made or suffered by the grantor, or any person claiming under him. Such covenants may be sued upon. in the same manner as if they had been expressly inserted in the conveyance.” It is upon the implied covenant arising from the use of the word “grant” in the deed that plaintiff bases his right to recover in this court. This right is challenged by respondent on the ground that the subsequent express covenant against incumbrances found in the deed restrains the implied covenant. A number of the states have statutes similar to ours. These statutes have for their foundation an act of the colony of Pennsylvania passed in 1715, which act was in turn based upon the statute of 6 Anne, c. 35, passed in 1707. These statutes have a common object, and that is to raise certain covenants by the use of the word “grant” or “grant, bargain and sell,” against the grantor,—and sometimes his heirs also, as with us,—and in favor of the grantee, his heirs and assigns. Under the rule that covenants should be construed most strongly against the covenantor, courts have generally given effect to these implied covenants, even in cases where