Note on Covenant of Seisin

"A. The Covenant of Seisin

The covenant of seisin promises that the grantor is seised of the premises he is conveying. [FN19] This has three alternative meanings in American law, depending on the jurisdiction. [FN20] A few states merely require possession of the property conveyed to fulfill the covenant of seisin, whether or not the possession is wrongful. [FN21] A majority of states hold the covenant of seisin to mean that the grantor has title to the estate he is conveying in the whole of the land that is described by the deed. These states do not require the grantor to have possession. [FN22] Thus, for a cotenant to convey a fee simple absolute would be a breach of the covenant, as would a deed from a grantor who did not own the mineral rights. [FN23] A minority of states, among them Arkansas, add the requirement that the grantor must also be in possession. [FN24] In Arkansas, “seisin is a covenant that is broken if the grantor has not possession, the right of possession, and the complete title.” [FN25]

Although over thirty Arkansas appellate decisions mention the covenant of seisin, those concerning whether it was breached are rare. At the most basic starting point, one who does not own land but conveys it by warranty deed, breaches the covenant of seisin. [FN26] In Cannon v. Foster, the court stated the rule that breach of the covenant of seisin also exists where a grantor conveys, by warranty deed, land that she had already conveyed to someone else. [FN27] The case was remanded to determine if in fact this reconveyance *59 had actually taken place. [FN28] If so, the court stated, the grantor would be liable for the value of the land that she warranted as hers, but did not in fact own at the time of the second conveyance. [FN29]
Another instance of breach occurred in Bosnick v. Hill, when at the time of the purchase, a third party was adversely possessing part of the tract, had fenced it, and was running cattle on it. [FN30] In this case, damages consisted of the cost of the successful suit by the grantees against the adverse possessors. [FN31] In Riddle v. Udouj, where neighbors were encroaching on the edges of the city lot at the time of conveyance, the court stated in dictum that breach of the covenant of seisin is decided “on the basis of who has possession” at the time of the conveyance. [FN32] In this case, there would have been a breach of the covenant of seisin, but it was not pled. [FN33]

Although there seem to be no Arkansas opinions on this point, breach of the covenant of seisin also occurs when a grantor conveys, by warranty deed, real property without any one of its appurtenances. [FN34] However, an encumbrance on property does not necessarily constitute a breach of seisin. [FN35] One may be seised of property that is nonetheless encumbered."

Lynn Foster & J. Cliff McKinney, Deed Covenants of Title and the Preparation of Deeds: Theory, Law, and Practice in Arkansas, 34 U. Ark. Little Rock L. Rev. 53, 58-59 (2011).