This article discusses the two most common types of deeds used to convey property interests and their characteristics.
The deeds of conveyance
Real estate solely owned as separate property by a married individual is sold.
Before issuing a title insurance policy to insure the conveyance of marketable title to the property against any potential community property claim of the seller’s spouse, the title insurance company requests that the spouse join in the grant deed by signing it as the spouse of the grantor.
The spouse signs the grant deed for the sole purpose of releasing any community property interest possibly acquired as a result of the marriage — even though the spouse acquired no interest in the real estate, as reflected by the record title.
After closing, the buyer of the property discovers a tenant who holds a lease which was not agreed to in the purchase agreement as a condition to title nor referenced in the grant deed. As a result, the buyer incurs money losses to relocate the tenant. Meanwhile, the seller dies but is survived by the spouse who joined in the conveyance.
The buyer now seeks to collect his tenant relocation expenses from the seller’s spouse for breach of the implied covenant in the grant deed signed by the spouse. The implied covenant warrants the grantor has not encumbered title to the property in any manner, such as creating a lease which was not included as a condition of title in the purchase agreement.
The seller’s spouse who joined in the conveyance claims a spouse cannot be held liable for the breach of the covenant against further encumbrances when the spouse never had an interest in the property to convey, and that the buyer’s only remedy is against the deceased seller.
Is the spouse liable for the breach of the implied covenant against further encumbrances since the grant deed was signed by the spouse as a grantor?
Yes! The covenants implied in a grant deed impose a personal obligation on each grantor, whether or not the grantor has an interest in the real estate described in the grant deed delivered to the buyer.
Since the spouse voluntarily participated as a grantor in the conveyance and did not enter into the conveyance through mistake or fraud, the spouse as a grantor breached the implied covenant against further encumbrances by failing to state the property was subject to the lease. [Evans v. Faught (1965) 231 CA2d 698]
To avoid the exposure to liability imposed by the implied covenants in the grant deed, the spouse should have signed a quitclaim deed to either the seller or the buyer. A quitclaim deed does not contain or carry with it the implied covenants of warranty of title and warranty against encumbrances created during the grantor’s period of ownership.
The granting clause
The two types of deeds commonly used to convey a real estate interest are:
To pass a fee simple interest in real estate, only the word “grant” needs to be used in the conveyance. No other precise words of conveyance are necessary in a deed to convey a fee simple ownership. [Calif. Civil Code §1092]
The word “grant” contained in the conveyance provision in a grant deed indicates the conveyance of a fee simple interest to another individual, unless the deed states a lesser interest is conveyed.
A quitclaim deed customarily uses the words “remise,” “release” or “quitclaim,” but does not contain the word “grant.” However, only the word “quitclaim” needs to be used to convey all interest held in the property by the grantor.
A quitclaim deed conveys only the grantor’s interest in a property, if any exists. A quitclaim deed can also be used in lieu of a grant deed to pass fee simple in the described real estate.
The words used to convey property are evidence of the future role the individual conveying title undertakes after the deed has been signed and delivered. Thus, to convey real estate with covenants relating to the interest conveyed, a grant deed is used. To simply convey any interest in real estate without an assurance the individual holds that interest conveyed, a quitclaim deed is used.
Grant deed covenants
The covenants, sometimes called warranties, implied in a grant deed include:
- the interest conveyed in the real estate has not been previously conveyed to another, except as disclosed in the grant deed; and
- the real estate has not been further encumbered by the grantor, except as disclosed in the grant deed. [CC §1113]
Grant deed covenants are implied. Thus, they are not separately bargained for as provisions to be included in the grant deed conveyance.
If a grant deed covenant is breached by a seller (grantor), the buyer (grantee) may recover his money losses from the seller for the breach of the implied covenant, as though the covenant had been written into the grant deed. [CC §1113]
Covenant against prior conveyances
Consider a seller who owns a parcel of real estate with appurtenant water rights in other real estate. The seller enters into a purchase agreement with a buyer, agreeing to convey the real estate to the buyer.
The seller signs a grant deed and hands it to escrow to convey the real estate to the buyer on closing. However, before the grant deed is delivered to the buyer, the seller conveys the appurtenant water rights to another individual.
After closing, the buyer learns of the seller’s conveyance of the water rights and seeks damages for the seller’s breach of the implied covenant against previous conveyances in the grant deed.
In this example, the seller is liable to the buyer for the value of the water rights conveyed to another. The water rights were appurtenant to the property sold. The seller breached the implied covenant in the grant deed by conveying the water rights without noting the conveyance as an exception in the grant deed he delivered to the buyer. [Lyles v. Perrin (1901) 134 C 417]
The covenant against other conveyances by the seller does not also imply the grantor has title to the property, called the covenant of seisin. A grantor who conveys property he does not hold title to is not liable for breach of the implied covenant against prior conveyance, or any other implied covenant. The covenant against prior conveyances only represents that the grantor has not previously conveyed any interest in the property.
Instead, the grantor may be liable to the grantee for money losses caused by his misrepresentation of title, failure of consideration or breach of his promise in the purchase agreement to convey real estate. Further, the grantee may rescind the transaction and obtain a return of his funds, called restoration. [CC §1689]
The covenant of seisin — that the grantor holds title to the real estate being conveyed — is now entirely unused. This covenant has been completely replaced by title insurance.
Covenant against encumbrances
Real estate encumbrances include taxes, assessments, conditions, covenants and restrictions (CC&Rs) and all liens, voluntary or involuntary, attached to the real estate. [CC §§1113, 1114]
Encumbrances are the subject of the implied warranty against encumbrances in the grant deed, since they burden title and depreciate its value. Encumbrances include:
- CC&Rs, such as covenants and use restrictions running with the land;
- a reservation of a right of way;
- a pendency of a condemnation action. [Evans, supra]
Consider a buyer who is aware of an existing lease on the property which the seller entered into as the landlord. The lease is not referenced in the purchase agreement or the escrow instructions as a condition of the title to be conveyed to the buyer. The buyer never agrees in writing to take title subject to the existing lease.
Further, the grant deed to the buyer does not state he is receiving title to the legally described real estate subject to the existing lease created by the seller.
The transaction closes and the tenant refuses to vacate the property based on agreements entered into between the tenant and the seller. The buyer then incurs expenses relocating the tenant. The buyer makes a demand on the seller to reimburse him for the tenant relocation expenses. The buyer claims the seller breached the implied covenant against encumbrances in the grant deed delivered to the buyer.
The seller claims the buyer cannot recover his expenses for the tenant’s relocation since the buyer had constructive knowledge (the tenant was in possession) and actual knowledge the lease existed at the time he accepted delivery of the seller’s grant deed.
In this example, the buyer’s knowledge that the lease existed does not bar recovery of his costs to relocate the tenant based on the seller’s breach of the implied covenant against further encumbrances. The buyer is entitled to rely on the grant deed (and the purchase agreement). Thus, the seller was obligated under the implied covenant in his grant deed to deliver title clear of the lease he created. [Evans, supra]
Improvements are real estate, not encumbrances
Physical changes in a property, generally resulting from improvements, are not considered encumbrances even through they affect the property’s value. Since improvements are readily seen on the property, their existence places the buyer on notice.
For example, a water district constructs a large levee across an owner’s property after the owner grants the district an easement. The water district owns and is in possession of the levee which is within the easement.
The owner conveys the real estate to a buyer with a grant deed. The grant deed does not reference the water district’s easement created during the grantor’s ownership. The buyer believes he purchased the property free and clear of any encumbrances and is unaware the water district has an easement over the property or owns the levee.
Due to the interference of the water district’s levee, the buyer is unable to use the property as planned and is prevented from using the property located within the easement.
The buyer seeks damages from the seller for breach of the implied covenant against encumbrances.
However, encumbrances do not include visible physical or permanent burdens on real estate. Improvements affecting the physical condition of a property and its value are open and notorious. A buyer accepts the property subject to the physical improvements since he is charged with notice of them as part of the real estate purchased.
Physical improvements are not considered an encumbrance since the improvements only affect the physical condition of the property, not its title like an easement. [Evans, supra]
In another example, a seller fails to disclose to a buyer that the soil used for a fill on the property is not compacted. The buyer builds a single family residence on the property and his residence sinks due to the uncompacted soil.
The buyer seeks to recover his money losses from the seller for the damage to his residence caused by the poor soil condition. The buyer claims the seller breached his covenants in the grant deed since the seller failed to disclose he altered the property by adding uncompacted soil.
However, a grant deed (or purchase agreement) includes no implied covenant regarding the physical condition of a property. Implied covenants only apply to the condition of title conveyed by the seller. Thus, the buyer should have based his recovery claim on the seller’s misrepresentation of the physical condition of the property improvements — the fill.
A seller’s misrepresentations or omissions about the physical conditions existing on the real estate are separate from a breach of title covenants; misrepresentations being a fraud, failure of a grant deed covenant being a breach of contract. [Gustafson v. Dunham, Inc. (1962) 204 CA2d 10]
If the grantee seeks to make the condition of the property a contract warranty and not just a representation, the grant deed or purchase agreement must state the grantor is providing a warranty that the property’s condition contains no known or unknown defects. For example, only a representation exists, not a warranty against all known and unknown defects, when the seller discloses the property’s physical condition in the Condition of Property Statement (TDS) delivered to the buyer of a one-to-four unit residential property.
Covenants restricted or limited
To avoid liability arising out of the implied covenants in a grant deed, the deed should state the title conditions (encumbrances) created by the seller during his ownership, since these conditions will be agreed to by the buyer in the purchase agreement. The implied covenants in a grant deed are waived by the buyer and do not apply when the seller (grantor) and the buyer (grantee) agree to the contrary in the purchase agreement and list the title changes made by the seller in the grant deed — as long as all changes made by the seller are listed.
For example, if the grantee is taking title subject to encumbrances placed on the property by the seller, the grant deed should state the property is “subject to” encumbrances of record, and list each of these encumbrances.
The implied covenants in the grant deed only insure the property has not been previously conveyed or encumbered by the grantor. No other promises regarding the title or condition of the property are implied in the grant deed.
Covenants personal to grantor/grantee
Implied covenants are only for the personal benefit of a buyer, not future owners, called remote grantees. The implied covenants in a seller’s grant deed to a buyer do not impose a condition on title and do not run with the land.
Thus, being personal to the seller (grantor) and the buyer (grantee), the implied covenants in a grant deed can only be enforced by the buyer (grantee) named in the deed. Implied covenants cannot be enforced by remote grantees who acquire the buyer’s interest at a later date.
Conversely, covenants running with the land, such as conditions, covenants and restrictions (CC&Rs) or easements, bind all future owners (remote grantees) of the property, whether they take title by deed or court order, since covenants running with the land affect title.
For a covenant to run with the land and affect all remote grantees, the seller creating the covenant must state in his conveyance that successors (remote grantees) are bound by the covenants and restrictions imposed on the property as contained in the deed. [CC §1468]
Consider an owner who encumbers his real estate with a first trust deed lien. The owner then sells the property to a buyer who agrees in the purchase agreement and escrow instructions to take title subject to the first trust deed.
Title is conveyed by grant deed to the buyer. However, the grant deed does not note the title is subject to the first trust deed created by the owner.
Later, the property is resold by the buyer. The purchase agreement and the escrow instructions for the resale disclose the existence of the first trust deed — specifically, the remaining balance on the first trust deed note to be assumed as part of the terms for payment of the purchase price on the resale to the new buyer.
The grant deed for the resale states the new buyer will take title subject to all encumbrances of record.
Later, on a search of the record title, the new buyer discovers the first trust deed lien he took over was not referenced in the grant deed conveyance to his seller from the prior owner of the property who created the trust deed lien.
The new buyer seeks to recover money from the prior owner for the amount of the debt secured by the trust deed based on the prior owner’s breach of the implied covenant against encumbrances. The new buyer claims he has suffered losses since the trust deed created by the prior owner was not referenced in the prior owner’s grant deed when he sold the property.
Is the new buyer entitled to recover money losses from the prior owner for the breach of the implied covenant against encumbrances contained in the grant deed?
No! The covenant implying the real estate is free from further encumbrances created by the prior owner is a personal covenant, held by and for the benefit of the original buyer only. An implied covenant does not run with the land for the benefit of a subsequent buyer. Thus, the new buyer cannot recover money losses for the breach of an implied covenant under a grant deed which did not name him as the grantee.
Further, the new buyer agreed to the first trust deed since it was referenced in his purchase agreement and escrow instructions. Usually, a buyer’s knowledge of an encumbrance does not bar an action by the buyer against the seller for the breach of implied covenants. In this instance, the new buyer is not entitled to be unjustly enriched for the prior owner’s breach of the covenant against encumbrances when the new buyer agrees in the purchase agreement to take title subject to the encumbrance. [Babb v.Weemer (1964) 225 CA2d 546]
Title insurance companies issue policies of title insurance covering the conveyance of real estate interests based on the condition of title.
Occasionally, a title company fails to properly search or accurately document the record title of real estate, and issues a policy which fails to reference the seller’s activity which affected title, such as a lien or conveyance entered into by the seller.
A policy of title insurance insures the buyer (grantee) against changes in the recorded title made by the seller (grantor) when the changes are not excluded from coverage by the terms of the purchase agreement.
For example, a seller of real estate encumbers his property with a trust deed during his ownership. To sell the property, a purchase agreement is entered into calling for the buyer to take title clear of all encumbrances except those listed. The trust deed encumbrance is not mentioned in the purchase agreement. Also, the seller’s grant deed to the buyer does not state the title is subject to the encumbrance.
Further, the title insurance company insuring the grant deed fails to discover and disclose the encumbrance as an exception to coverage. Thus, the title insurance company indemnifies the buyer against the existence of the trust deed encumbrance on the property.
The buyer claims both the title insurance company and the seller are liable under their agreements with the buyer; the title insurance company under its policy, the seller under the implied covenant against further encumbrances in the grant deed. If the title insurer pays this claim, the insurer will be subrogated by the terms of the policy to the buyer’s claim against the seller and the seller’s liability will shift to the title company.
Consider a property owner who grants a neighbor a view easement which imposes limits on the height of improvements on the owner’s property. The neighbor records the document conveying the easement, called an easement deed.
The owner then sells the real estate, which is now subject to the view easement he created. Neither the purchase agreement nor the escrow instructions disclose the existence of the easement created by the owner.
Before closing, the owner orally informs his buyer of the view easement.
The owner further informs the buyer and the company providing title insurance he does not know whether the easement deed is recorded. A preliminary title report issued by the title company does not disclose the existence of the recorded easement deed. Neither the purchase agreement nor the escrow instructions are altered to reflect the existence of the easement.
Further, the owner’s grant deed conveys the property to the buyer and makes no reference that the legally described real estate is subject to the easement created by the owner.
The title insurance policy issued to the buyer does not list the view easement as an exception to the insured condition of title.
After closing, the buyer discovers the easement was recorded while the owner held title. The buyer makes a claim against the title insurance company for the amount of the decrease in the value of the property caused by the easement.
The title insurance company pays the buyer’s claim since title was insured against the recorded existence of the view easement. In exchange, the buyer assigns to the title company any rights held by the buyer against the owner for breach of the implied covenants in the owner’s grant deed.
The title insurance company then seeks to recover its payment of the claim from the owner based on his breach of the implied covenant to the buyer under the grant deed.
The owner claims the title insurance company cannot enforce a claim held by the buyer and assigned to the title company regarding the buyer’s rights against the owner under the grant deed, called subrogation, since the buyer and the title insurance company were both aware of the easement before closing.
Is the title insurance company entitled to be subrogated to the rights of the buyer under the grant deed and recover the amount it paid for the buyer’s lost value caused by the easement?
Yes! The buyer’s and title insurance company’s knowledge of the easement does not prevent recovery from the owner. The buyer is entitled to rely on the implied covenant against further encumbrances, which automatically accompanies the grant deed, unless the covenant is:
- restricted by listing the easement in the grant deed; or
- waived by agreeing to take title subject to the encumbrances in the purchase agreement, escrow instructions or other writing.
Further, the owner would be unjustly enriched if he were allowed to keep the entire amount of the purchase price received from the buyer since the price paid by the buyer did not reflect the reduced value caused by the easement.
Thus, the title insurance company, by the assignment, is entitled to step into the shoes of the buyer for the claim against the owner (by subrogation/equitable assignment) on payment to the buyer of the buyer’s claim against the owner under the title insurance policy. The title insurer then pursues enforcement of the buyer’s claim under the grant deed covenant against encumbrances. [Fidelity National Title Insurance Company v. Miller (1989) 215 CA3d 1163]
Editor’s note — An erroneous preliminary title report cannot be relied on as a warranty by the title insurance company of the condition of recorded title. A preliminary title report is merely an offer to issue a policy on the same terms and conditions, unless amended before closing. However, a seller is entitled to offset the title insurance company’s recovery of its losses if the seller can show he justifiably relied on the title insurance company’s representation concerning the non- existence of a recorded easement.
For the seller to justifiably rely on the title company, the title insurance company must issue an abstract of title policy to the seller. If an abstract of title policy discloses no easement of record when one exists, the title company is liable to the seller for the negligent preparation of the abstract of title, unless the seller knew the easement existed. [Barthels v. Santa Barbara Title Company (1994) 28 CA4th 674]
Purchase agreement merges into grant deed
Title conditions bargained for and agreed to in the buyer’s purchase agreement are merged into the grant deed accepted by the buyer on closing.
Thus, when a title condition, such as a reservation of an easement by a seller, is agreed to in the purchase agreement, it must be restated in the grant deed if the condition is to become enforceable by the seller. The title condition agreed to in the purchase agreement is extinguished on closing by the merger of the bargained for title condition into the grant deed.
The grant deed, by merger, becomes the sole remaining basis for enforcement of either the buyer’s or seller’s rights to title. Thus, after closing, a purchase agreement provision affecting title is only enforceable if it is implied or stated in the grant deed. Recovery under the title insurance policy is an entirely separate source of recovery.
However, if a title condition, covenant or restriction (CC&R) is agreed to in the purchase agreement, but is erroneously omitted when escrow prepares the grant deed, the grant deed can be ordered corrected (by a court) to include the covenant, a legal process called reformation. Once the grant deed is corrected to include the omitted title condition, the condition is then enforceable since it is present in the grant deed. [CC §3399]
Grant deeds and after-acquired title
Consider an individual (grantor) who conveys title by grant deed to real estate he purports to own, but does not actually own in part or at all. Should the grantor later acquire title to the real estate interest he previously conveyed by grant deed, the after-acquired title to the real estate legally passes to the grantee under the grant deed. [CC §1106]
For example, an owner decides to sell property which is subject to an oil and gas lease calling for royalties (rent) to be paid to the owner by the tenant. The owner conveys his oil and gas rights by grant deed and transfers the oil and gas lease by assignment to an investor. Thus, the owner no longer owns the oil and gas rights in the real estate and no longer is entitled to receive royalties (rents) from the tenant under the lease.
Later, the owner locates a buyer of his remaining fee interest in the real estate. Neither the purchase agreement with the buyer nor the escrow instructions disclose the owner’s prior conveyance of the oil and gas rights or the lease he entered into regarding those rights.
When a preliminary title report discloses the existence of the oil and gas lease, but not the recorded grant deed conveying the oil and gas rights or the lease assignment, the transaction is renegotiated and escrow instructions are amended by the owner’s broker to provide for the owner to assign the oil and gas lease to the buyer. Further, the grant deed to the buyer does not limit the implied covenant against prior conveyance by referencing the prior transfer of the oil and gas rights held by the owner.
Later, after escrow closes, the owner reacquires the oil and gas rights by deed and the oil and gas lease by assignment.
However, on conveyance and assignment of the oil and gas rights back to the owner, these later acquired rights automatically pass by operation of law under the prior grant deed from the owner to the buyer who bought the real estate. The owner had previously conveyed the entire fee simple to the buyer, which included the oil and gas rights, subject only to the tenant’s rights which still exist under the oil and gas lease. [Schwenn v. Kaye (1984) 155 CA3d 949]
Conveying lesser estates
If a buyer of real estate is receiving an ownership interest which is less than fee simple, the grant deed must explicitly state the lesser interest being conveyed to the buyer.
For example, to convey a life estate, the grant deed would state the grantee is to hold the property until the grantee’s (or some other individual’s) death, at which point the title will revert back to the grantor or the grantor’s successors.
Covenants in a nonjudicial sale
The implied covenants of a grant deed apply to all nonjudicial sales of property which transfer a fee simple interest by grant deed. Conversely, transfers of real estate by judicial order, as well as by quitclaim deeds, carry no covenants (warranties) at all.
For example, a sale in a probate proceeding and the conveyance of real estate by a grant deed signed and delivered by an executor is a private, nonjudicial sale, not a judicial sale. The conveyance transferring title is not directed by an order of the court, though the court may have approved the sale. As a nonjudicial sale, the implied warranties of title in the executor’s grant deed apply, unless the grant deed states otherwise. [Mains v. City Title Ins. Co. (1949) 34 C2d 580]
Now consider a trustee’s foreclosure sale under a trust deed. The trustee acts on the authority given by the property owner (trustor) to sell and convey title to the real estate at a trustee’s sale under the power-of-sale provision in the trust deed should the lender (beneficiary) declare a default and elect to foreclose.
Since the trustee’s foreclosure process is a nonjudicial procedure, the implied covenants exist in the trustee’s deed issued by the trustee on a foreclosure sale, unless the Notice of Trustee’s Sale (NOTS) and the trustee’s deed provisions eliminate the covenants. Standard NOTS and trustee’s deeds avoid the implied covenants by stating the trustee transfers title with no warranty.
Additionally, a trustee’s deed passes title to the real estate sold at the trustee’s sale in the same condition as the title existed on the date the trust deed was recorded, called the relation back theory.
A trustee’s deed conveys title to a buyer subject to all senior rights and encumbrances of record. The title received by the buyer at the trustee’s sale is free and clear of any interest claimed by the prior owner or successors to the owner, and any liens, encumbrances or interests in the property junior in time of recording or subordinated to the trust deed which was foreclosed. [Hohn v. Riverside County Flood Control and Water Conservation District (1964) 228 CA2d 605]
A quitclaim deed terminates any interest in the real estate described in the deed which may be held by the person (grantor) signing and delivering the quitclaim deed.
Unlike a grant deed, a quitclaim deed does not carry with it the implied covenants contained in a grant deed. A quitclaim deed operates to release to the grantee all interest the grantor may hold in the property. [Platner v. Vincent (1924) 194 C 436]
A quitclaim deed passes whatever title, legal or equitable, the grantor possessed on execution (signing and delivering) of the quitclaim deed.
While a quitclaim deed is not intended to assure the conveyance transfers full fee simple ownership, the individual who holds fee title and signs and delivers a quitclaim deed does convey fee simple ownership of the property, and all the benefits of holding fee simple title. [Spaulding v. Bradley (1889) 79 C 449]
After-acquired title and quitclaims
Unlike a grant deed, a quitclaim deed does not also pass the grantor’s after-acquired title to the real estate described in the quitclaim deed. The quitclaim deed is a release of the grantor’s interest in the real estate at the time it is signed and delivered.
The individual signing and delivering a quitclaim deed does not promise to convey an interest in the real estate, much less agree he has received it (seisin) and not previously conveyed or encumbered it (implied covenants).
However, after-acquired title will pass to a buyer named in a previous quitclaim deed if:
- the seller sold by use of a quitclaim deed an unperfected right in the property which will later ripen into ownership, called an inchoate right, such as the interest held by a beneficiary under a will or inter vivos (living) trust prior to the death of the property owner [Soares v. Steidtmann (1955) 130 CA2d 401]; or
- the seller is estopped (barred) by his sales agreement or his conduct from claiming the after-acquired title does not pass to the buyer.
The seller is estopped from claiming the after- acquired title does not pass if:
- the quitclaim deed contains recitals or covenants, such as an assignment clause, showing the seller’s intention was not to limit the interest conveyed to only the interest the seller had at the time the quitclaim deed was executed; or
- the seller has affirmed, or his conduct has implied, he actually had an interest in the property which was to be conveyed. [In re Wilson’s Estate (1940) 40 CA2d 229]
Deeds executed by agents of the court, such as a receiver or sheriff, to transfer title under a judicial foreclosure sale, an execution sale or other court-ordered sale are similar to quitclaim deeds in that none of these carry with them the implied covenants of a grant deed. Only an owner’s interest in a property, if any exists, which was subject to the judicially ordered sale is conveyed. Likewise, any after-acquired title later acquired by the owner in the property sold by judicial order does not later pass to the buyer.
A sale is considered judicial if the property is conveyed by an order of the court to carry out a judgment, such as a sale on the execution of a money judgment or a judicial foreclosure sale. [In re Backesto’s Estate (1923) 63 CA 265]
Additionally, a buyer and broker at a judicial foreclosure sale have the responsibility to investigate and determine the condition of the property, and the ownership interest and condition of the owner’s title being conveyed by order of the court, since no warranties exist. [Mains, supra]