Definition
A clause appearing in conveyancing instruments and covenants — particularly covenants of warranty or covenants for quiet enjoyment — by which the covenantor guarantees that the title conveyed will be defended against claims arising from acts of the testator or his ancestors, regardless of what those acts may have been. In practice, the phrase functions as a limiting or extending modifier within a covenant, identifying the scope of the grantor's or devisor's warranty obligation. It signals that the covenantor binds himself to defend against incumbrances, defects, or adverse claims traceable to the testator's own acts or to those of persons from whom the testator derived title by descent.
The phrase is a term of art within the covenant, not a standalone legal concept. Its operative effect is to define whose acts are covered by the warranty rather than to carve out exceptions.
Common Confusion
This phrase should not be read as a general savings clause or a legislative notwithstanding clause. Modern legal readers accustomed to statutory drafting — where "notwithstanding any other provision" introduces an override — may misread this phrase as creating an exception or supremacy rule within the instrument. In its historical conveyancing context, it operates instead as an affirmative scope-defining formula: the covenantor warrants title against these acts, not despite them in the sense of overriding them.
Why It Matters in Research
Researchers encountering this phrase in historical deeds, wills, or conveyancing precedents must read it as a covenant-scope term, not a general interpretation clause. The phrase appears most characteristically in instruments drafted in the seventeenth and eighteenth centuries, when covenant forms were highly standardized and individual phrases carried precise technical weight accumulated through decades of precedent.
The critical research trap is anachronistic reading. A researcher familiar with modern legislative drafting — where "notwithstanding" reliably signals an override provision — will misinterpret this phrase when reading pre-nineteenth-century conveyances. In the covenant context, the phrase identifies whose acts the warranty covers, which is an additive function, not an overriding one.
Jurisdictional variation matters here primarily in the distinction between English common law sources and early American practice. American conveyancers, particularly in Pennsylvania and New York, adapted English covenant forms but sometimes altered scope language. The Rapalje & Lawrence reference to Cro. Car. 107 anchors this phrase firmly in the English Caroline-era common law tradition, meaning researchers tracing this language in early American instruments should expect it to carry English precedent weight unless local modification is evident.
The phrase also bears on questions of after-acquired title and estoppel by deed. When a testator or ancestor had conveyed a defective title, the "notwithstanding" covenant language could become the pivotal text in litigation over whether the covenantor's estate was bound to make good on the warranty. Researchers investigating title disputes in probate and real property records from the colonial and early national periods should note this phrase when it appears in the chain of title documentation.
Corpus researchers should be aware that this phrase rarely appears in isolation in the historical legal literature. It is most often encountered mid-clause in transcribed deed or covenant forms, making keyword searching unreliable. Searching for the surrounding covenant language — warranty, quiet enjoyment, heirs and assigns — will surface relevant instruments more consistently than searching the phrase alone.
Historical Dictionary Support
Rapalje & Lawrence treat this phrase briefly, directing the reader to Cro. Car. 107 — a Caroline-era English common law report — as the defining authority. The entry is purely referential, providing no analytical discussion. This is characteristic of Rapalje & Lawrence's treatment of conveyancing terms of art, which the dictionary tends to index rather than explain, on the assumption that practitioners would proceed directly to the underlying authority.
The Cro. Car. citation (Crooke's King's Bench reports under Charles I) places this phrase squarely in the seventeenth-century English conveyancing tradition. What the historical dictionaries collectively do not provide is guidance on how American courts adapted or modified this covenant language after the Revolution, leaving a gap that researchers must fill through case law and treatise sources outside the historical dictionary corpus.
Jurisdictional Note
English common law origin is clear. American reception varied: some states codified statutory warranty forms that displaced or simplified the traditional covenant language, while others retained common law covenant doctrine substantially intact well into the nineteenth century. Pennsylvania practice, suggested by the Rapalje & Lawrence corpus, preserved traditional covenant forms longer than some other jurisdictions.
Encyclopedia Cross-Reference
See COVENANTS (for the doctrine of covenant scope and warranty obligations generally) and TITLE AND TITLE COVENANTS (for the relationship between covenant language and title chain analysis in historical instruments).