Page:North Dakota Reports (vol. 3).pdf/47

 there were limited express covenants, where the two were not inconsistent or were independent of each other, limiting the implied covenant against incumbrances to the personal act or sufferance of the grantor. Gratz v. Ewalt, 2 Bin. 68; Seitainger v. Weaver, 1 Rawle 377; Funk v. Voneida, 11 Serg. & R. 109; Shaffer v. Greer, 87 Pa. St. 370; Finley v. Steele, 23 Ill. 56; Alexander v. Schreiber, 10 Mo. 460; Shelton v. Pease, 1d. 473.

This statute has repeatedly met the animadversions of courts by reason of its dangerous tendency, because “calculated to entrap the ignorant and unwary into liability which they never intended to incur,” and because “it has a bad effect to annex to words and arbitrary meaning far more extensive than their usual import, and which must be unknown to all but professional men.” In this jurisdiction the use of the word “grant” is universal in conveyances of fee-simple estates, and it is almost equally universal that the parties to such conveyances guard their respective tights by the express covenants inserted. It is seldom, if ever, that a grantee receives a conveyance relying upon any covenants except such as are expressed, and certainly no grantor delivers a conveyance expecting to ke held to a liability that he has not knowingly incurred. The only effect of the statute with us would seem to be to create liabilities not in the mind of both parties— probably of neither—at the time of the execution of the conveyance. But the implied covenants do not arise when. inconsistent with the express covenants, or when it appears from the language used by the parties that it was not intended that any such covenant as that implied by the statute should take effect. Douglass v. Lewis, 131 U.S. 75; 9 Sup. Ct. Rep. 634; Finley v. Steele, supra; Weems v. McCaughan, 7 Smedes & M. 427. We held in Bowne v. Wolcott, supra, that when the covenant was limited to the heirs, executors and administrators of the grantor, and there was no charge of fraud or mistake in the deed, we were bound to presume that the parties intended the covenant to be so limited, and that the grantee accepted that covenant because he could get no better. Applying the law to his case, plaintiff accepted a deed