encumbrance shall not alone be construed as to make such grantee personally liable as aforesaid."

It was the general impression of the real estate lawyers until the decision of May's Estate (218 Pa. 64) that this Act of June 12, 1878, absolved the grantee from all personal liability as to both grantor and mortgagee, so that in the event of a foreclosure the grantee's liability was limited to the value of the land. May's Estate (218 Pa. 64) holds otherwise and decides in substance that the Act of 1878 merely bars the mortgagee or subsequent holder of the mortgage from proceeding directly against the grantee, but that "the grantee is liable to the grantor if the grantor is compelled to make good to the mortgagee the difference between what the land brings and the value of the mortgage." The effect of the decision is to permit the mortgagee to accomplish indirectly what he cannot do directly,* that is fasten ultimate liability upon the grantee by suing the grantor who in turn can sue the grantee and recover from the grantee what he, the grantor, was compelled to pay the mortgagee. The situation is unfortunate and an act of the legislature is sorely needed to absolve the grantee from personal liability on the encumbrance. Until such act is passed the only method by which a grantee can avoid personal responsibility is to insist on a release of this liability from a grantor when taking title.

Of course, should there be no mortgage to take under and subject to the clause is omitted unless there be certain building restrictions, in which case the clause would read:

"Under and subject nevertheless to certain express conditions and restrictions as appear of record in Deed Book W. M. G. 322, page 34, etc."

This is the usual method of drawing this clause, although the far better practice is to actually recite the restrictions if not too bulky, e. g.:

"Under and subject nevertheless to the express conditions and restrictions that said premises shall not, within the period of five years from the date hereof be sold to or occupied by any person other than of Caucasian race, and that, within said period the said premises shall not be used as an undertaking establishment, nor for the manufacture, bottling or sale of malt, vinous

*Smith v. Danielson, 45 Pa. Superior Ct. 136, holds, the mortgagee cannot even maintain the action in the name of the mortgagor to his (mortgagee) use.

or spirituous liquors nor for the carrying on of any busi-
ness requiring the use of machinery run otherwise than
by human power, and that the porches upon said struct-
ure erected on the said lot shall be maintained free of
any enclosure or obstruction which might prevent the
free and common enjoyment of air, light and view by all
of the owners, tenants and occupiers of structures upon
any of the lots which may front on the said Y Street
between X Street and Z Street.

(h.) Appurtenance Clause. End of Premises.

"Together with all and singular the buildings, improvements, ways, streets, alleys, passages, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever unto the hereby granted premises belonging, or, in anywise appertaining and the reversions and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, property, claim, and demand whatsoever of him, the said grantor, as well at law as in equity of, in and to the same.'

As a matter of law, all easements, rights and incidents which belong to the property conveyed and are necessary to its full enjoyment, pass as appurtenances without mention of them in the deed (Murphy v. Campbell, 4 Pa. 480; Casey v. Canning, 43 Superior 31). But only those things that are necessary to the enjoyment of the land conveyed pass without mention; things that are merely convenient do not (Messer v. Rhodes, 3 Brewst. 180). Thus, e. g., alley-ways, water-courses, light and air are usually merely convenient and thence would not pass as an appurtenance. For this reason the appurtenance clause which is so broadly drawn as to cover every conceivable right, usually always appears in the printed form of deeds. The legal maxim "that what is appurtenant to a piece of land is appurtenant to every part thereof" is well to be remembered, for if a right of way be granted as appurtenance to a tract of land, later if that tract be divided into smaller lots, each of the grantees of the subdivisions will be entitled to the same right of way (Ermentrout v. Stitzel, 170 Pa. 540), which may have been intended only for the convenience of the single owner of the undivided tract. 55. Meaning of Various Parts of Deed Continued. Habendum Part. (a.) To Have and To Hold Clause.

"To have and to hold the said lots or pieces of ground. above described with the messuage or tenement thereon erected; hereditaments and premises hereby granted or mentioned and intended so to be, with the appurte

nances, unto said grantee, his heirs and assigns, to and
for the only proper use and behoof of the said grantee,
his heirs and assigns forever.

The purpose of this clause is to determine what estate passes. In the clause above set forth it provides that the grantee shall have and hold an estate in fee. The habendum and tenendum clause may be used to explain the premises of the deed and perhaps qualify it (Bedford Lodge v. Lentz, 194 Pa. 399). But if it be repugnant or hopelessly contradictory to the premises, it will be rejected (Karcher v. Hoy, 151 Pa. 391). The office of the habendum and tenendum may be and sometimes is performed in the premises in which case the habendum is not really necessary; however, it usually appears as a printed part in all forms of deeds.

(b.) Covenants of Warranty.

"And the said grantor, Andrew Black, for himself, his heirs, executors and administrators, doth covenant, promise and agree to and with the said grantee, his heirs and assigns, by these presents that he the said grantor, Andrew Black, and his heirs, all and singular the hereditaments and premises hereby granted or mentioned and intended so to be with appurtenances unto the said grantee, his heirs and assigns, against him the said grantor, Andrew Black, and his heirs and against all and every person and persons whosoever lawfully claim or to claim the same or any part thereof by, from or under him, them or any of them shall and will under and subject as aforesaid warrant and forever defend."

This clause is the covenant of warranty. A covenant is any writing under seal wherein either party may stipulate the truth of certain facts or may bind himself to perform or give something to the other (Mitchell on Real Estate Conveyancing 437). The most usual covenant found in a deed is the covenant of warranty. It had its origin, as Mr. Fallon (Pa. Law of Conveyance 190) points out, in the fact that in the early history of England, conveyances were chiefly made from a superior to an inferior as from a baron to his retainer or from father to daughter upon her marriage. No examination of the grantor's title was deemed necessary for the grantee relied solely upon his grantor's covenant of warrant or promise to defend his (the grantee's) title. In modern conveyancing the ancient warranty or guarantee has lost its importance because owing to our recording system a purchaser is in the position to examine the

title of the land purchased and to ascertain its validity (Whitehead v. Carr, 5 Watts 369). Of the five ancient covenants formerly appearing in old-time deeds in Pennsylvania only the covenant of warranty has survived and is the only one necessary to treat of here. The covenants of warranty are of two kinds: Special and General.

(c.) Meaning of Special and General Warranty.-Special warranty is such as is set forth above and is the one most generally used. It is a promise or covenant on the part of the grantor to defend the grantee against all actions, for the land conveyed which may be brought by the grantor or his heirs, assigns or anyone claiming under the grantor. A general warranty, however, is a covenant on the part of the grantor to defend the grantee's title against all mankind, the whole world. This, of course, is an unusual covenant and so harsh in its terms that it is never presumed to have been intended unless expressly stipulated for. It amounts practically to an insurance of title. A purchaser has no right to expect a general warranty in his deed unless he expressly bargains for it (Whitehead v. Carr, 5 Watts 368), and it has been held that the words, in an agreement of sale that the words "vendor will well and sufficiently grant, convey and assure the said tract of land to the vendee, his heirs and assigns," entitled the vendee to only a special warranty (Lloyd v. Farrel, 48 Pa. 78). A general warranty would be created by the following words:

And the said grantor, Andrew Black, for himself, his heirs, executors and administrators doth covenant, promise and agree to and with the said grantee, his heirs and assigns, by these presents that he the said grantor, Andrew Black, will forever warrant and defend the said property and every part thereof unto the grantee, his heirs, executors and administrators against the lawful claims and demands of all persons whomsoever.

By the Act of 1909 (Act of April 1, 1909, P. L. 91, secs. 5, 6), providing for a short form of deed, the words "the grantor will warrant generally" shall have the effect and mean the same as the general warranty above set forth, and the words, the grantor will warrant specially shall have the same meaning and effect as the words set forth in the special warranty on page 73. This act will be considered more fully later (Par. 58).

56. Meaning of Parts (Concluded). Conclusion of Deed. (a.) Execution Clause or Testimonium.

In witness whereof the parties have hereunto interchangeably set their hands and seals. Dated the day and year first above written.

Sealed and delivered in the
presence of us:

(Seal.) (Seal.)

It will be observed that the Indenture Deed from which the above clause is an extract retains the word interchangeably from the old form of indenture when it was customary for the grantee to sign. This the grantee no longer does, although the form persists. A deed poll omits, of course, the word interchangeably and is dated at the end instead of at the top. (See form par. 236.)

(b.) Receipt. Following the testimonium or execution clause is usually found a receipt in the following form:

"Received on the day of date of the above indenture

of the above-named grantee the full consideration money
hereinbefore mentioned."

This is signed by the grantor also, although it is of no value where the consideration is only nominal.

(c.) Acknowledgment Clause (See Act of April 1, 1909, sec. 8, P. L. 93).

"On the 7th day of July, Anno Domini one thousand nine hundred and eleven (1911) before me the subscriber, a notary public for the Commonwealth of Pennsylvania, residing in the City of Philadelphia, personally appeared the above named B. M., and in due form of law acknowledged the above indenture to be his act and deed and desired the same might be recorded as such.

"Witness my hand and notarial seal the day and year aforesaid."

Notary Public.

This is to be signed by the notary public or officer authorized by law to take acknowledgments. Execution of acknowledgments and execution of deeds will be considered more in detail in the later (Section III and IV).