If You Think Your Warranty Deed Covers Your Legal Fees – Think Again

If you buy property using a warranty deed, you likely assume the seller is on the hook for legal fees if someone challenges your title, even if you win. A recent Nebraska Supreme Court case decision says otherwise: if you win the fight yourself, be ready to foot the bill yourself too.  

 In Morris v. Dall (2026), the Court reaffirmed a longstanding rule that puts a hard limit on what the covenant of warranty actually protects. A covenant of warranty is a promise in a deed that the seller will make things right if someone else later proves they had a better claim to the property.  

 The case involved two parcels the Schindler Family Trust sold to Jane and Steven Morris under a warranty deed. As is standard, the deed stated the Trust “warrants and will defend the title” against lawful claims by third persons. After the sale, a third party who had occupied part of the property for decades sued the Morrises to quite title, claiming ownership through adverse possession. A quite title action is a lawsuit someone files to ask a court to officially settle who really owns a piece of property. Adverse possession is a legal rule that lets someone gain ownership of land they don’t hold the title to if they have openly used and treated it as their own for a long enough period of time, without the real owner objecting.  

 The Morrises asked the Trust and its trustee, Karen Dall, to step in and defend the claim under the deed. Dall and the Trust refused.  

 Left to handle it themselves, the Morrises won. The court granted summary judgment in their favor and quieted the title. The Morrises then sued Dall and the Trust, seeking reimbursement of the attorney fees they had spent defending a claim the Trust was supposed to have handled.  

 Both the district court and the Nebraska Supreme Court ruled against the Morrises.  

 The Court’s reasoning resting on a bright line rule from the case Omega Chemical Co. v. Rogers (1994). A grantee who succeeds in defending title against a claim cannot recover the cost of that defense from the grantor, because a defeated third-party claim does not actually break the covenant of warranty. The covenant only protects against paramount title, meaning a claim that actually prevails. If you beat the claim, by definition it was never paramount, and there is nothing to indemnify.  

 The Morrises argued the phrase “warrants and will defend the title,” which was present in the covenant, crated a separate, affirmative duty, distinct from the warranty itself, that was breached the moment Dall refused to show up and defend, regardless of who ultimately won. They pointed to an Iowa Supreme Court Case, Kendall v. Lowther, which allowed fee recovery in a similar situation involving a tenable, but unsuccessful third-party claim.  

 The Nebraska Supreme Court declined to follow Iowa’s rule. Instead holding that “warrant and defend” is, what they called, a legal doublet. A legal doublet is a pair of near synonymous terms, common in the older legal language which we still use, that together express a single obligation rather than two independent obligations. The court cites a piece written by Antonin Scalia and Bryan Garner where they write: “sometimes drafters do repeat themselves and do include words that add nothing of substance”.  

 The Court held that reading “defend” as creating a standalone duty would require rewriting a century of settled Nebraska precedent for the sake of adding extra meaning into language that has never been intended.  

 A covenant of warranty is breached only when the grantee actually loses, through eviction or surrender to a paramount title. Successfully defending your own title, no matter how much it costs you, does not trigger the grantor’s liability, and the grantor cannot be forced to reimburse fees for a fight it did not have to join. 

 For buyers relying on a warranty deed, this case is a reminder that the “defend” language is not an insurance policy for litigation costs. If a title dispute arises and your grantor will not step in, you may still have to fund your own defense, and even a full victory will not necessarily get you your fees back. If you are evaluating a title dispute, negotiating deed language, or wondering what protection your warranty deed actually provides, contact our real estate team to make sure your expectations match what Nebraska law will enforce.