Handy, J.,
delivered the opinion of the- court.
This was an action at law brought by the defendant in error, against the plaintiffs in error, on the 24th of March, 1853, for a breach of general warranty of title of certain lands conveyed by the defendant in error to the plaintiffs, by deed dated 10th of January, 1837.
[542]*542The complaint alleges that the plaintiff below, after the purchase, went into possession; and in May, 1889, sold and conveyed the premises to one Henry Wilkinson, by deed with general warranty of title, who entered upon and took possession of the land; that he sued Henry Wilkinson for the purchase-money, and was enjoined by him in chancery from proceeding to collect it; that afterwards certain heirs of one Hope filed their bill in chancery, stating that the Burruseshad purchased the lands in February, 1836, under an order of sale of the Probate Court on credit, and that the purchase-money thereupon remained unpaid, and seeking to subject the land to the payment thereof, the Burruses and Henry Wilkinson being made defendants in that bill; that a sale was accordingly decreed, and the lands sold in April, 1842, in pursuance of the decree, and purchased by the plaintiff, who received a deed from the commissioner who made the sale, and the sale was dulyreported and confirmed; that in the suit in chancery by Henry Wilkinson, the plaintiff was decreed to convey the lands to him or to his heirs, which he accordingly did on the 24th of January, 1845. Plence, it is alleged, that Henry Wilkinson, the plaintiff’s assignee, has been evicted by title paramount, and that the covenant is broken.
The defendants pleaded. First. That they purchased the lands when sold under the order of the Probate Court, under a prior agreement to purchase them for the plaintiff; that they were inadvertently conveyed to the defendants, but that it was not intended when they made the deed to the plaintiff that they should warrant the title; that the plaintiff never paid them, nor became liable to pay them any thing for the land, and that the deed was never delivered by P. R. Burrus. Second. That the cause of action did not accrue within seven years. Third. That they did not covenant within seven years. Fourth. That they filed their petitions to be declared bankrupts in March, 1842, and were discharged from all their debts in November, 1842, and certificates granted them.
The plaintiff demurred to these several pleas, and the demurrer was sustained. And as to the first and third pleas, the defendants pleaded over, general performance of covenant; upon which the [543]*543plaintiff joined issue, and the verdict and judgment were for the plaintiff.
It is not denied that the demurrer to the first plea was properly sustained; and the first question, then, arises on the demurrer to the second and third pleas; and that question is whether an action for breach of general warranty of title in a deed of conveyance is barred by the lapse of seven years after the cause of action accrued. If it is barred, it must be under the seventh section of the Act of 1844, Hutch. Dig. 830. The actions specified in that section are, “ actions of covenant for rent, or arrearages of rent, founded on any lease under seal; actions of debt upon any single or penal bill for the payment of money or any other thing, or upon condition for the payment of money or any other thing, or upon any award of arbitrators for the payment of money or any other thing.” It is clear that this cause of action is not embraced in any of those enumerated in this section. Those specified are well defined, and wholly different from the present action; and there is no power in the courts to extend the statute by construction to cases clearly not within the enumerated classes.
The defence under the plea of bankruptcy comes within the rule laid down in Bush v. Cooper, 26 Miss. 599, and the demurrer to that plea was properly sustained.
But the main question raised by extending the demurrer to these pleas back to the plaintiff’s declaration, and also by the instructions asked in behalf of the defendants, and refused by the court, is, whether the facts stated in the declaration, and which were substantially proved by the evidence, constitute such an eviction as to entitle the plaintiff to recover upon the covenant of general warranty.
This covenant is an express one, which excludes any covenant by implication. It is a covenant to warrant the title against the claims of all persons, claiming by title paramount; the nature of which is well defined in law to be entirely distinct from a covenant against incumbrances.
It is admitted by counsel that in order to recover upon a breach of such a covenant, it is necessary to show an eviction by a superior title. But it is said that an actual eviction by judicial process [544]*544need not be shown, and that the condition of the plaintiff was equivalent to an eviction, and entitled him to sue upon his covenant.
We do not consider this position tenable. It is true that the covenantee may recover upon such a warranty, though he may have yielded the possession voluntarily, provided the title to which he yielded be good and paramount to that of his warrantor; because against such a title he is not obliged to submit to a law suit, upon a claim which must certainly prevail. But in such a case, the burthen of proof of the paramount title is upon him. Hamilton v. Cutts, 4 Mass. 350; Greenwalt v. Davis, 4 Hill, (N. Y.) 643.
But where the covenantee has not yielded the possession, either coercively or voluntarily, and remains in the enjoyment of the premises, it would be doing violence to the well settled nature of the contract to allow him to recover as upon a breach of the covenant, merely because he had seen fit to purchase in an outstanding title under which he might have been ousted. And the possession of his assignee and covenantee is equivalent to his possession. If the covenantee or his assignee had yielded voluntarily to the paramount title, they might then have sued upon the covenant, upon showing the superiority of the outstanding title. But without an actual surrender of the possession, or a legal eviction, no action could be maintained for a breach of the covenant, unless a purchaser can be permitted to buy in an outstanding incumbrance or title, and set it up to defeat his purchase; which, it is firmly settled in this court, cannot be done. Hardeman v. Cowan, 10 S. & M. 487; Champlin v. Dotson, 13 Ib. 553; Bush v. Cooper, 26 Miss. 612; Hill v. Samuel, at last term. Until the purchaser has yielded possession to the superior title, and been dispossessed thereby, the contract of purchase must be considered as in existence ; and any outstanding title acquired by him or his assignee, who is in privity with him, and the beneficiary of the covenant in his deed, cannot amount to an eviction but will be treated as a purchase of an outstanding title, which cannot be used in disparagement of the title derived from the original purchase.
In the case of Witty v. Hightower, 12 S. & M. 478, which strongly resembles this case, and which is decisive of the point [545]*545under consideration, it is said, “ the plaintiff has remained in possession, and” (having purchased in the outstanding paramount title) “ there is no one who can disturb him. All the conflicting titles are united in his hands.
Free access — add to your briefcase to read the full text and ask questions with AI
Handy, J.,
delivered the opinion of the- court.
This was an action at law brought by the defendant in error, against the plaintiffs in error, on the 24th of March, 1853, for a breach of general warranty of title of certain lands conveyed by the defendant in error to the plaintiffs, by deed dated 10th of January, 1837.
[542]*542The complaint alleges that the plaintiff below, after the purchase, went into possession; and in May, 1889, sold and conveyed the premises to one Henry Wilkinson, by deed with general warranty of title, who entered upon and took possession of the land; that he sued Henry Wilkinson for the purchase-money, and was enjoined by him in chancery from proceeding to collect it; that afterwards certain heirs of one Hope filed their bill in chancery, stating that the Burruseshad purchased the lands in February, 1836, under an order of sale of the Probate Court on credit, and that the purchase-money thereupon remained unpaid, and seeking to subject the land to the payment thereof, the Burruses and Henry Wilkinson being made defendants in that bill; that a sale was accordingly decreed, and the lands sold in April, 1842, in pursuance of the decree, and purchased by the plaintiff, who received a deed from the commissioner who made the sale, and the sale was dulyreported and confirmed; that in the suit in chancery by Henry Wilkinson, the plaintiff was decreed to convey the lands to him or to his heirs, which he accordingly did on the 24th of January, 1845. Plence, it is alleged, that Henry Wilkinson, the plaintiff’s assignee, has been evicted by title paramount, and that the covenant is broken.
The defendants pleaded. First. That they purchased the lands when sold under the order of the Probate Court, under a prior agreement to purchase them for the plaintiff; that they were inadvertently conveyed to the defendants, but that it was not intended when they made the deed to the plaintiff that they should warrant the title; that the plaintiff never paid them, nor became liable to pay them any thing for the land, and that the deed was never delivered by P. R. Burrus. Second. That the cause of action did not accrue within seven years. Third. That they did not covenant within seven years. Fourth. That they filed their petitions to be declared bankrupts in March, 1842, and were discharged from all their debts in November, 1842, and certificates granted them.
The plaintiff demurred to these several pleas, and the demurrer was sustained. And as to the first and third pleas, the defendants pleaded over, general performance of covenant; upon which the [543]*543plaintiff joined issue, and the verdict and judgment were for the plaintiff.
It is not denied that the demurrer to the first plea was properly sustained; and the first question, then, arises on the demurrer to the second and third pleas; and that question is whether an action for breach of general warranty of title in a deed of conveyance is barred by the lapse of seven years after the cause of action accrued. If it is barred, it must be under the seventh section of the Act of 1844, Hutch. Dig. 830. The actions specified in that section are, “ actions of covenant for rent, or arrearages of rent, founded on any lease under seal; actions of debt upon any single or penal bill for the payment of money or any other thing, or upon condition for the payment of money or any other thing, or upon any award of arbitrators for the payment of money or any other thing.” It is clear that this cause of action is not embraced in any of those enumerated in this section. Those specified are well defined, and wholly different from the present action; and there is no power in the courts to extend the statute by construction to cases clearly not within the enumerated classes.
The defence under the plea of bankruptcy comes within the rule laid down in Bush v. Cooper, 26 Miss. 599, and the demurrer to that plea was properly sustained.
But the main question raised by extending the demurrer to these pleas back to the plaintiff’s declaration, and also by the instructions asked in behalf of the defendants, and refused by the court, is, whether the facts stated in the declaration, and which were substantially proved by the evidence, constitute such an eviction as to entitle the plaintiff to recover upon the covenant of general warranty.
This covenant is an express one, which excludes any covenant by implication. It is a covenant to warrant the title against the claims of all persons, claiming by title paramount; the nature of which is well defined in law to be entirely distinct from a covenant against incumbrances.
It is admitted by counsel that in order to recover upon a breach of such a covenant, it is necessary to show an eviction by a superior title. But it is said that an actual eviction by judicial process [544]*544need not be shown, and that the condition of the plaintiff was equivalent to an eviction, and entitled him to sue upon his covenant.
We do not consider this position tenable. It is true that the covenantee may recover upon such a warranty, though he may have yielded the possession voluntarily, provided the title to which he yielded be good and paramount to that of his warrantor; because against such a title he is not obliged to submit to a law suit, upon a claim which must certainly prevail. But in such a case, the burthen of proof of the paramount title is upon him. Hamilton v. Cutts, 4 Mass. 350; Greenwalt v. Davis, 4 Hill, (N. Y.) 643.
But where the covenantee has not yielded the possession, either coercively or voluntarily, and remains in the enjoyment of the premises, it would be doing violence to the well settled nature of the contract to allow him to recover as upon a breach of the covenant, merely because he had seen fit to purchase in an outstanding title under which he might have been ousted. And the possession of his assignee and covenantee is equivalent to his possession. If the covenantee or his assignee had yielded voluntarily to the paramount title, they might then have sued upon the covenant, upon showing the superiority of the outstanding title. But without an actual surrender of the possession, or a legal eviction, no action could be maintained for a breach of the covenant, unless a purchaser can be permitted to buy in an outstanding incumbrance or title, and set it up to defeat his purchase; which, it is firmly settled in this court, cannot be done. Hardeman v. Cowan, 10 S. & M. 487; Champlin v. Dotson, 13 Ib. 553; Bush v. Cooper, 26 Miss. 612; Hill v. Samuel, at last term. Until the purchaser has yielded possession to the superior title, and been dispossessed thereby, the contract of purchase must be considered as in existence ; and any outstanding title acquired by him or his assignee, who is in privity with him, and the beneficiary of the covenant in his deed, cannot amount to an eviction but will be treated as a purchase of an outstanding title, which cannot be used in disparagement of the title derived from the original purchase.
In the case of Witty v. Hightower, 12 S. & M. 478, which strongly resembles this case, and which is decisive of the point [545]*545under consideration, it is said, “ the plaintiff has remained in possession, and” (having purchased in the outstanding paramount title) “ there is no one who can disturb him. All the conflicting titles are united in his hands. If, in purchasing, he failed to protect himself by covenants, which would embrace his case, the law cannot extend them beyond their actual import.” In that case the covenant sued upon was similar to that before us, and the attitude of the parties was substantially the same as in this case. The only difference between the two cases consists in the fact that the covenantee remained in possession, having purchased in the outstanding title in that case; and in this, he has conveyed to a third person with covenant of general warranty. But in this case, the covenant to the plaintiff “ and his assigns;” enured to the benefit of his vendee, and the privity between them was complete; and certainly the plaintiff cannot be heard to complain of a breach of the covenant, when his vendee in possession would not be allowed to do so.
The position contended for in behalf of the plaintiff would lead to this result: a purchaser might sell the premises to a third person, with covenants of warranty, and for a full price, and then purchase in an outstanding incumbrance, and without being deprived of the possession, either by himself or his vendee voluntarily yielding it to the paramount title, or being legally dispossessed thereby, he could recover from his covenantee the full amount of the purchase-money paid by him in addition to the purchase-money received by him from his vendee. This would be to enable him to recover to a much greater amount than he had sustained damage, and to allow him to buy in an outstanding incumbrance to the prejudice of his vendor, and recover back his entire purchase-money, without an abandonment of the contract, and when he had never been dispossessed. Against such a result the rule wisely interposes, that a purchaser shall not sue for a breach of covenant of general warranty, while he has not been dispossessed of the premises, either by judicial process, or by actual yielding of the possession to a paramount title. Witty v. Hightower, 12 S. & M. 478; Waldron v. M‘Carty, 3 Johns. R. 471; Greenvault v. Davis, 4 Hill, 646.
[546]*546If this view of the subject be correct, it follows that, however the plaintiff may have been entitled to recover in any other form of action, he could not maintain this action; and that the declaration was insufficient, and that the demurrers should have been extended back to it, and sustained.
The judgment is therefore reversed, and judgment ordered upon the declaration for the defendants below.