## Facts

- Rose L. Weemer owned real property and earlier executed a promissory note secured by a first deed of trust, creating a senior encumbrance.
- Weemer later conveyed the property by grant deed to Charles and Christine Rosette; the Rosettes gave Weemer a promissory note secured by a purchase-money second deed of trust.
- The Rosettes agreed to sell the property to Jerrell and Joan Babb under terms that treated the purchase price as reduced by “present encumbrances,” and contemplated a grant deed subject to those encumbrances.
- The Rosettes conveyed to the Babbs by grant deed stating the property was taken subject to encumbrances and easements of record.
- The Babbs had actual and constructive notice of the first and second deeds of trust.
- After Weemer, as beneficiary under the second deed of trust, threatened or commenced foreclosure, the Babbs paid sums to prevent foreclosure and sued Weemer for damages and reimbursement.

## Issues

1. Whether the covenant against encumbrances implied in a grant deed is a personal covenant that does not run with the land, barring suit by a remote grantee against the original grantor.
2. Whether purchasers who take title subject to encumbrances of record and with knowledge of those encumbrances can recover from a remote grantor based on an implied covenant theory.
3. Whether the appeal was frivolous warranting an appellate penalty.

## Decision

- The court affirmed judgment for Weemer on both causes of action.
- The court held the implied covenant against encumbrances in Weemer’s grant deed to the Rosettes was personal and did not run with the land; the Babbs, as subsequent grantees, lacked standing to sue Weemer on that covenant.
- The court concluded the Babbs could not shift the burden of known encumbrances to Weemer where their purchase documents and deed took the property subject to encumbrances of record and priced the transaction accordingly.
- The court imposed a monetary penalty for a frivolous appeal.

## Legal Principles

- An implied covenant against encumbrances in a California grant deed is a personal covenant enforceable only by the immediate grantee against the grantor, and does not run with the land to remote grantees.
- Express contract and deed terms taking title “subject to” recorded encumbrances, together with actual or constructive notice, defeat attempts to recover from a remote grantor on a theory that the property was impliedly warranted free of those encumbrances.
- Implied covenants cannot be invoked to contradict express provisions allocating responsibility for encumbrances.

## Conclusion

The court held that a remote purchaser could not sue an original grantor for breach of an implied covenant against encumbrances because the covenant was personal and did not run with the land, and the purchasers’ own transaction documents and notice established they accepted title subject to the recorded liens; the judgment for the original grantor was affirmed with a penalty for a frivolous appeal.


Babb v. Weemer, 225 Cal. App. 2d 546 (Cal. Ct. App. 1964)