man for the recovery back of the two thousand and five hundred dollars by Lichtenstein was based upon the ground that the title to said real estate was unmarketable by reason of the pendency of the prior action, and hence the judgment against Fleishman affected the title to said property for which the surety bond was liable, and therefore the indemnity bond is likewise liable. It is further asserted that the surety bond secured Fleishman against the consequences of an unmarketable title. We cannot agree with these contentions. We concede that if Fleishman could have recovered on the surety bond, then the appellant may recover unless there is some special defense which might stand in its way. It is true that a vendee may bring an action to recover damages for a breach of contract to convey a marketable title. (Maupin, etc., pp. 6, 7.) It is also true that where there is a covenant in a deed specially warranting a marketable title. an action may be based upon a breach of such a covenant. The general, if not the universal, rule, however, is that, if a deed containing covenants of warranty is delivered and possession is passed to the grantee, he must rely upon the covenants contained in his deed. (Maupin, etc., pp. 6, 7, 143, et seq.) Although it be conceded that Adeline Stoutt agreed to convey a marketable title in the contract of sale, yet, when the warranty deed was executed and delivered under which possession was given and taken, the contract of sale was fully executed and its provisions were merged in the deed, and Fleishman thereafter was bound to rely upon the covenants in the deed, and if any breach occurred in any one of them he was required to sue and recover in a proper action for breach of such covenants. We think no case can be found, and counsel have cited none, where an action was based upon an executed contract of sale after such contract had been fully performed by the execution and delivery of a deed and the vendee was given possession under it. The deed conveying the property sold by the contract is ordinarily a complete execution of the contract of sale, and the covenants in the deed must thereafter be looked to for redress in case of defects in the title. In view of the allegations contained in the complaint, there was no breach of any of the covenants usually contained in an ordinary warranty deed under our 1 statutes. These covenants are: (1) Of seisin; (2) of a good right to convey; (3) against incumbrances; (4) of warrant; (5) for quiet enjoyment; and (6) for further assurance. The last is of but little, if any, importance, since, under our statutes, all present and after acquired interests of the grantor pass to the grantee by virtue of the deed conveying a fee-simple title. Every other defect in the title is covered by the other covenants. As we have seen, this action is not founded upon a breach of any of the covenants above enumerated, nor is it alleged that there was any breach of any special covenant by which the grantor covenanted in the deed against the consequences of an unmarketable title. The breach relied on in the complaint is not a breach of the covenant against incumbrances. To constitute a breach of this covenant there must be some lien or valid claim against the property which constitutes an incumbrance. If a judgment had been obtained in the action referred to in the complaint, no doubt such a judgment would have been a lien against the real estate and thus would have constituted an incumbrance. It may be that the action itself, if supported by a lis pendens as provided by section 2953, Comp. Laws 1907, constituted an incumbrance as between the grantor and the grantee. But Fleishman took a conveyance with full knowledge of the action and its possible consequences. He required Mrs. Stoutt, the grantor, to secure him against any possible loss by reason of any judgment that might be obtained in the action then pending, which she did. It does not appear that Feishman suffered any loss by reason of the pendency of that action except the loss of a sale to Lichtenstein. Against such a loss, however, Mrs. Stoutt did not indemnify Fleishman by the bond which was executed with appellant as surety. Fleishman took his deed with full knowledge of the pending action, and if this made the title unmarketable, he was not only aware of the fact, but took the title subject thereto requiring only that he be held harmless against any loss or damage by reason of any judgment that might be obtained in that action and which might affect Mrs. Stoutt's title. He did not ask to be, and was not, indemnified against the loss of a sale of the property, but this is just what he seeks to recover for in this action. If he has suffered by reason of any judg ment obtained in the action then pending, he might, in a proper action, recover his damages; but he cannot recover unless he was damaged by some matters which were included. in the surety bond. From what has been said it necessarily follows that if Fleishman had no cause of action against appellant upon the surety bond, then appellant can have none upon the indemnity bond against the respondents. For the reasons herein stated, the complaint did not state facts sufficient to constitute a cause of action against respondents, and the court committed no error in sustaining the general demurrer, nor in dismissing the action. In view of the foregoing conclusions it becomes unnecessary to pass upon the second ground urged by respondents' counsel why the demurrer was rightfully sustained. The judgment is affirmed, with costs to respondents. STRAUP, C. J., and MCCARTY, J., concur. BOWE v. PALMER et al. No. 2004. Decided June 22, 1909 (102 Pac. 1007). 1. TROVER AND CONVERSION-ACTS CONSTITUTING CONVERSION. Merely to interfere with another's property or his rights therein will not sustain an action of trover, unless such acts are done with the intention of depriving the owner permanently or temporarily of his property. (Page 218.) 2. TORTS-BURDEN OF PROOF-INFERENCES FROM EVIDENCE. Where a person is charged in a civil action as a wrongdoer, and the evidence tends to connect him with the wrongful acts charged, in the absence of any evidence explaining or denying the wrongful acts, every legitimate inference warranted by the evidence may be taken against him. (Page 222.) 3. TROVER AND CONVERSION-ACTIONS-SUFFICIENCY OF EVIDENCEQUESTION FOR JURY. Evidence, in an action of trover against an agent, who leased a building to plaintiff, for the conversion of goods and chattels therein belonging to plaintiff, held sufficient to make the question whether defendant's acts constituted conversion one for the jury. (Page 223.) APPEAL from District Court, Second District; Hon. W. W. Maughan, Judge. Action by Annie E. Bowe against Annie Palmer and O. J. Stilwell. From a judgment dismissing the action as against Stilwell, plaintiff appeals. REVERSED AND REMANDED. J. E. Bagley for appellant. James N. Kimball for respondent. The parties to this action have treated the complaint as stating a cause of action in trover for the conversion of certain goods and chattels belonging to the appellant, and the cause was tried upon that theory in the district court, and upon the same theory submitted to this court. We shall therefore treat the action as one of trover. The defense was, in effect, a general denial. The undisputed facts, as developed at the trial, are, in substance as follows: Respondent Stilwell represented one Goldberg, who lived in New York City, and who was the owner of a certain rooming house known as the "Tanner Block," in Ogden, Utah. On or about April 1, 1901, the appellant desired to lease the rooming house in question, and for that purpose applied to Stilwell for a lease. Mr. Stilwell, on said date, executed and delivered to appellant the following writing: "$35.00 April 1, 1901. Mrs. Wm. Bowe has refusal of Tanner Block for three days from April 1st at $35 per month, and otherwise on same terms as last tenant. One week time allowed. O. J. Stilwell." Pursuant to this writing, appellant was permitted to go into and take possession of the second story of the building in question for use as a rooming house. After cleaning the same, she, on or about April 4, 1901, informed Stilwell of what she had done and requested a two-year lease for the second story of the building aforesaid. Mr. Stilwell, at the time, executed and delivered to her the following: "$35.00 Received of Mrs. J. Bowe thirty-five dollars for one month's rent for second floor of Tanner Block, subject to approval of L. B. Golberg, owner of Tanner property, time for rent to commence to be agreed upon later. O. J. Stilwell." It was conceded at the trial that "Mrs. Wm. Bowe" and "Mrs. J. Bowe" referred to appellant. After paying rent as aforesaid appellant, with the consent of Stilwell, moved her household goods into the second story of the building, took possession thereof, and started the business of keeping a rooming house. Mr. Stilwell informed appellant that he would have to forward the lease to Goldberg at New York City for signature, and that Stilwell would deliver it to appellant when it was returned by Goldberg. It is not made very clear, but there is some evidence to the effect that the rent was to commence on or about April 15th. The respond |