Background
The Schindler Family Trust sold two parcels of land to Jane and Steven Morris by warranty deed. The deed stated that the Trust “warrants and will defend the title” against lawful claims. After surveying the property, the Morrises moved fence lines to conform with the deed’s legal descriptions.
A third party then sued to quiet title to portions of the parcels through adverse possession. The Morrises asked Karen Dall, the Trust’s successor trustee, and the Trust to defend the claim. They refused. The Morrises obtained partial summary judgment and quieted title in their favor, although the trial court later found the third party had asserted a colorable adverse-possession claim but lacked the legal training to prosecute it. The Morrises then sued Dall and the Trust to recover the attorney fees they incurred defending their title.
The Court’s Holding
The Nebraska Supreme Court affirmed. It held that the deed’s language that the Trust would “warrant[] and will defend” title did not create a standalone, affirmative duty to fund or conduct a defense whenever a third party challenges the grantees’ title. In this setting, “warrant and defend” is a traditional legal doublet describing the covenant of warranty, rather than two separate promises.
Under Nebraska law, a covenant of warranty is breached only when the grantee suffers actual or constructive eviction, or surrender, because of a paramount title—one that prevails or is successfully asserted. Because the Morrises defeated the adverse-possession claim and retained title, there was no breach of the warranty covenant. They therefore could not recover their litigation expenses from the Trust, and Dall likewise had no individual liability for a nonexistent breach.
Key Takeaways
- A warranty deed’s promise to “warrant and defend” title does not separately require the grantor to defend every third-party title challenge.
- Attorney fees may be damages for breach of a warranty covenant only after a grantee suffers loss through a paramount title.
- A grantee who successfully defeats a title claim cannot recover defense costs from the grantor merely because the claim was asserted.
Why It Matters
The decision preserves Nebraska’s bright-line rule that a general warranty covenant protects against an actual future loss of title, not the cost of defeating an unsuccessful claim. Buyers seeking broader litigation-defense protection must obtain it through express contractual language beyond the standard warranty-deed formulation.