1974: Proffitts  Atkinsons
1978: Atkinsons  Carter
1980 Carter  Isleys
The covenant against encumbrances is not assignable and does not pass to a grantee. It is
a personal covenant only between the grantor and the grantee, the remedy for a remote
grantee, when the encumbrance has not been removed from the property, is against his
immediate grantor, whose recourse is against his grantor and so forth back up the chain of
title to the original grantor whose conveyance breached the warranty against
encumbrances.
The measure of damages for the breach of the covenant against encumbrances is the
amount necessary to remove the encumbrance, not exceeding the consideation expressed
in the deed containing the covenant of warranty, and orginarily the coveantee cannot
recover on the mere existence of the encumbrance, but must first discharge it by payment,
unless he ahs actually lost the estate in consequences of the encumbrance.
Here, P incurred no expense because of the outstanding mortgage on the property, and the
mortgagee had made no effort to either evict P or foreclose the property. Therefore, the
cause of action was only a technical breach and thus only nominal damages may be
recovered.