Page:North Dakota Reports (vol. 3).pdf/48

 with an express covenant against incumbrances limited to the heirs, executors and administrators of Joseph Dietrich; that he accepted such deed because Dietrich refused to incur any personal liability upon such covenant. It is then morally certain that when the deed was delivered Dietrich did not intend to be bound by an implied covenant to a liability that he had refused to assume by an express covenant, and the plaintiff must have so understood it when he accepted the deed. This view is strengthened by the fact that, under our statute, the implied covenant applies to the grantor, his heirs, executors and administrators. It would be most unreasonable to suppose that the parties intended to have the representatives bound by one covenant and the grantor by another in the same deed. It follows from these views that the liability of Joseph Dietrich under the implied covenant is restrained by the terms of the express covenant, and that there is no covenant in, the deed upon which Joseph Dietrich can be held in this action. The defendant, Nora Dietrich, is not a party to the express covenant, but, under the authorities already cited, the implied covenant is limited to the personal acts or sufferance of the grantor. Nora Dietrich had no interest in the land conveyed except her homestead interest. No obligation, legal or moral, rested upon her to pay the sidewalk tax, and it was not an incumbrance created or suffered by her. It follows that there is no covenant in the deed upon which plaintiff can recover in this action, and the judgment of the lower court must be affirmed. All concur.

(53 N. W. Rep. 81.)