In a conveyance of real estate the words, "warranty covenants" shall have the full force, meaning and effect of the following words: "the grantor for himself, his heirs, executors, administrators and successors, covenants with the grantee, his heirs, successors and assigns, that he is lawfully seized in fee simple of the granted premises; that they are free from all former and other grants, bargains, sales, taxes, assessments and encumbrances of what kind and nature soever; that he has good right to sell and convey the same; and that he will, and his heirs, executors, administrators and successors shall warrant and defend the same to the grantee and his heirs, successors and assigns forever against the lawful claims and demands of all persons."
History: 1941 Comp., § 75-135, enacted by Laws 1947, ch. 203, § 10; 1953 Comp., § 70-1-35.
ANNOTATIONSTyped paragraph took precedence over printed form language. — Typed paragraph, in which the vendee agreed to quiet title to the property at his own expense or opt to rescind the contract within six months, took precedence over printed contract form language which included the warranty that "the grantor . . . has good right to sell and convey" the property. Lorentzen v. Sanchez, 1990-NMSC-032, 109 N.M. 693, 789 P.2d 1260.
Breach of warranty of good title. Grantee's ejectment from property based on plaintiff's superior title, combined with grantor's apparent knowledge of the outstanding deed and failure to defend grantee, constituted a breach of the warranty of good title. Garcia v. Herrera, 1998-NMCA-066, 125 N.M. 199, 959 P.2d 533, cert. denied, 125 N.M. 145, 958 P.2d 103.
Third-party claimant. — Grantee's voluntary settlement with plaintiff in ejectment action did not constitute a failure to defend against the action and did not prevent grantor from subsequently bringing a breach of warranty action against the grantor of the property. Garcia v. Herrera, 1998-NMCA-066, 125 N.M. 199, 959 P.2d 533, cert. denied, 125 N.M. 145, 958 P.2d 103.
Damages in breach of warranty action. — Successful claimant in breach of warranty of title action was entitled to recover damages for the lost value of the forfeited land, interest on this lost value, and attorney's fees for services in connection with claimant's defense of the original ejectment action as well as the breach of warranty action. Garcia v. Herrera, 1998-NMCA-066, 125 N.M. 199, 959 P.2d 533, cert. denied, 125 N.M. 145, 958 P.2d 103.
Grantor's cognizable interest in water rights can be reserved and conveyed. — Where grantor owned land that included a water source, and thus had an inchoate right to pursue the development, establishment, and perfection of water rights for the water on his land, and conveyed the realty on which the water source existed, but reserved the right to pursue perfection of a water right equal to fifty percent of that right or opportunity to pursue the development, establishment, and perfection of water rights, the district court erred in determining that grantor did not have any rights to any water rights for the water source on the land, because even though grantor did not own a recognized water right in the sense that term is normally used in New Mexico, grantor had a cognizable interest in the water on the deeded property that he could enforce as to his buyers, and could sell and assign to others. Christopher v. Owens, 2016-NMCA-099.
Law reviews. — For article, "Toward Clarification of New Mexico's Real Property Statutes," see 1 Nat. Res. J. 163 (1961).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Personal covenant in recorded deed as enforceable against grantee, lessee or successor, 23 A.L.R.2d 520.
Affirmative covenants as running with the land, 68 A.L.R.2d 1022.