Franklih, C.
Appellee sued appellant upon the covenants in a warranty deed in the short form under the statute of Indiana. The breach alleged was encumbrances.
A demurrer was overruled to the complaint; trial by the court; finding for the plaintiff, and, over motion' for a new trial, judgment was rendered for the plaintiff.
The errors assigned are, overruling the demurrer to the complaint, and overruling motion for a.new trial.
The defendant is a remote grantor of the plaintiff, and the first objection to the complaint is that a remote grantee can not maintain an action against a remote grantor upon the covenant in the deed against encumbrances; that such covenant is a personal one, and does not run with land.
Under the statute of Indiana, a deed containing the words, “ conveys and warrants,” “ shall be deemed and held to be a conveyance in fee simple to the grantee, his heirs and assigns, with covenant from the grantor for himself and his heirs and personal representatives" that he is lawfully seized of the premises, has good right to convey the same, and guarantees the quiet possession thereof; that the same are free from all incumbrances, and that he will warrant and defend the title to the same against all lawful claims.” R. S. 1881, section [384]*3842927. Each one of these covenants is contained in the general warranty, the same as if they had been separately written in the deed. Kent v. Cantrall, 44 Ind. 452.
In the case of McClure v. McClure, 65 Ind. 482, where the covenants in a similar deed were sued upon, the court said : “ It is thus seen that the deed in question contained, amongst other things, a covenant of general warranty; and this covenant, beyond all doubt, runs with the land.”
“ Says Chancellor Kent: ‘ The covenant of warranty, and the covenant for quiet enjoyment, are prospective, and an actual ouster or eviction is necessary to constitute a breach of them. They are, therefore, in the nature of real covenants, and they run with the land conveyed, and descend to heii’s, and vest in assignees of the purchaser.’ 4 Kent Com. (12th ed.), top p. 471. See, also, Blair v. Allen, 55 Ind. 409.”
In the case of Martin v. Baker, 5 Blackf. 232, it is said: "It appears to us to be a mistake to say, that the covenant of seizin can not pass to the heir or assignee of the grantee. The covenant is not inserted in the deed merely for the grantee’s benefit, but for the benefit of all others who may derive their claim to the land through him. Whoever thus derives his right, and ultimately sustains damages in consequence of the covenantor’s want of title, may sue him for the breach.” In the case of Coleman v. Lyman, 42 Ind. 289, the above is quoted with approbation, and the court adds: “ This case has stood and been recognized as the law of the State on this point for more than thirty years, and we do not feel that we would be justified in overruling it without stronger reasons than are presented to us in this ease. Sec the case of Schofield v. Iowa Homestead Co., 32 Iowa, 317.” The case of Burnham v. Lasselle, 35 Ind. 425, in the above case quoted from, is distinguished, upon the ground that no possession was given in that case.
In the case of Bethell v. Bethell, 54 Ind. 428 (23 Am. R. 650), it is said: “ But all the cases, so far as we are advised, hold, that where the grantor is not in possession and does not deliver pos[385]*385.session to liis grantee, the covenant ofiseizin, if the grantor had no title, is at once broken and does not run with the land.” And in support thereof the following quotation is made from the case of Chambers v. Smith, 23 Mo. 174: “If there be a total defect of title, defeasible and indefeasible, and the possession have not gone along with the deed, the covenant is broken as soon as it is entered into, and can not pass to an .assignee upon any subsequent transfer of the supposed right of the original grantee. In such case, the breach is final and complete ; the covenant is broken immediately, once for all, and the party recovers all the damages that can ever result from it. If, however, the possession pass, although without right, — if an estate in fact, although not in law, be transferred by the deed, and the grantee have the enjoyment of the property according to the terms of the sale, the covenant runs with the land and passes from party to party, until the paramount title results in some damage to the actual possessor, and then the right of action upon the covenant vests in the party upon whom the loss falls.”
Where no title is conveyed, and no possession is given or taken under the deed, there is no actual transfer of the land with which the covenants could run. In such case they could be but personal covenants, and a breach would occur immediately upon the execution of the deed. But where title is -conveyed by a deed containing our statutory general warranty, and possession passes under the deed, the covenants run with the land, and a remote grantee may maintain an action against a remote grantor for a breach of the covenants.
The case of Fisher v. Parry, 68 Ind. 465, is distinguished from the one under consideration, upon the ground that the statute of Minnesota is different from the statute of Indiana upon the subject of covenants in a deed.
In the case under consideration, the deed conveys a good title, subject to the encumbrance then existing on the land, and possession accompanied the deed and continues in the [386]*386plaintiff. In such cases the covenant in the deed against encumbrances runs with the land. Sage v. Jones, 47 Ind. 122. The plaintiff, in order to protect his title, was compelled to redeem from the sheriff’s sale, and has a right of action for’ the breach of the covenant.
A further objection to the complaint is, that in the deed the name of the State in which the land is situated is left blank.
The name of the county and a description of the land are stated in the deed; it was executed and recorded in Madison county, Indiana. The complaint alleges that the omission of the name of the State was an inadvertence of the’ draftsman; that the land sold and intended to be conveyed was situated in the State of Indiana, and was the identical land in controversy, and prayed for general relief.
We think the complaint in this respect is sufficient to withstand a demurrer, without a specific prayer for reformation. Rhode v. Green, 26 Ind. 83. But if we were permitted to look to the evidence, it would be seen that the deed, as therein contained in the bill of exceptions, does state the name of Indiana as the State in which the land is situated. There was no error in overruling the demurrer to the complaint.
The first reason urged under the motion for a new trial is an objection to the introduction in evidence of the record of the proceedings for reinstatement of the transcripts of the judgments upon which the sheriff’s sale above referred to was had, said record having been destroyed by fire. The objection to the record was that it did not contain a copy of the summons and service thereon.
The record shows an appearance of the parties, a default of the judgment defendants, and that process had been duly issued and served upon the defendants, as was shown by the return of the sheriff thereon.
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Franklih, C.
Appellee sued appellant upon the covenants in a warranty deed in the short form under the statute of Indiana. The breach alleged was encumbrances.
A demurrer was overruled to the complaint; trial by the court; finding for the plaintiff, and, over motion' for a new trial, judgment was rendered for the plaintiff.
The errors assigned are, overruling the demurrer to the complaint, and overruling motion for a.new trial.
The defendant is a remote grantor of the plaintiff, and the first objection to the complaint is that a remote grantee can not maintain an action against a remote grantor upon the covenant in the deed against encumbrances; that such covenant is a personal one, and does not run with land.
Under the statute of Indiana, a deed containing the words, “ conveys and warrants,” “ shall be deemed and held to be a conveyance in fee simple to the grantee, his heirs and assigns, with covenant from the grantor for himself and his heirs and personal representatives" that he is lawfully seized of the premises, has good right to convey the same, and guarantees the quiet possession thereof; that the same are free from all incumbrances, and that he will warrant and defend the title to the same against all lawful claims.” R. S. 1881, section [384]*3842927. Each one of these covenants is contained in the general warranty, the same as if they had been separately written in the deed. Kent v. Cantrall, 44 Ind. 452.
In the case of McClure v. McClure, 65 Ind. 482, where the covenants in a similar deed were sued upon, the court said : “ It is thus seen that the deed in question contained, amongst other things, a covenant of general warranty; and this covenant, beyond all doubt, runs with the land.”
“ Says Chancellor Kent: ‘ The covenant of warranty, and the covenant for quiet enjoyment, are prospective, and an actual ouster or eviction is necessary to constitute a breach of them. They are, therefore, in the nature of real covenants, and they run with the land conveyed, and descend to heii’s, and vest in assignees of the purchaser.’ 4 Kent Com. (12th ed.), top p. 471. See, also, Blair v. Allen, 55 Ind. 409.”
In the case of Martin v. Baker, 5 Blackf. 232, it is said: "It appears to us to be a mistake to say, that the covenant of seizin can not pass to the heir or assignee of the grantee. The covenant is not inserted in the deed merely for the grantee’s benefit, but for the benefit of all others who may derive their claim to the land through him. Whoever thus derives his right, and ultimately sustains damages in consequence of the covenantor’s want of title, may sue him for the breach.” In the case of Coleman v. Lyman, 42 Ind. 289, the above is quoted with approbation, and the court adds: “ This case has stood and been recognized as the law of the State on this point for more than thirty years, and we do not feel that we would be justified in overruling it without stronger reasons than are presented to us in this ease. Sec the case of Schofield v. Iowa Homestead Co., 32 Iowa, 317.” The case of Burnham v. Lasselle, 35 Ind. 425, in the above case quoted from, is distinguished, upon the ground that no possession was given in that case.
In the case of Bethell v. Bethell, 54 Ind. 428 (23 Am. R. 650), it is said: “ But all the cases, so far as we are advised, hold, that where the grantor is not in possession and does not deliver pos[385]*385.session to liis grantee, the covenant ofiseizin, if the grantor had no title, is at once broken and does not run with the land.” And in support thereof the following quotation is made from the case of Chambers v. Smith, 23 Mo. 174: “If there be a total defect of title, defeasible and indefeasible, and the possession have not gone along with the deed, the covenant is broken as soon as it is entered into, and can not pass to an .assignee upon any subsequent transfer of the supposed right of the original grantee. In such case, the breach is final and complete ; the covenant is broken immediately, once for all, and the party recovers all the damages that can ever result from it. If, however, the possession pass, although without right, — if an estate in fact, although not in law, be transferred by the deed, and the grantee have the enjoyment of the property according to the terms of the sale, the covenant runs with the land and passes from party to party, until the paramount title results in some damage to the actual possessor, and then the right of action upon the covenant vests in the party upon whom the loss falls.”
Where no title is conveyed, and no possession is given or taken under the deed, there is no actual transfer of the land with which the covenants could run. In such case they could be but personal covenants, and a breach would occur immediately upon the execution of the deed. But where title is -conveyed by a deed containing our statutory general warranty, and possession passes under the deed, the covenants run with the land, and a remote grantee may maintain an action against a remote grantor for a breach of the covenants.
The case of Fisher v. Parry, 68 Ind. 465, is distinguished from the one under consideration, upon the ground that the statute of Minnesota is different from the statute of Indiana upon the subject of covenants in a deed.
In the case under consideration, the deed conveys a good title, subject to the encumbrance then existing on the land, and possession accompanied the deed and continues in the [386]*386plaintiff. In such cases the covenant in the deed against encumbrances runs with the land. Sage v. Jones, 47 Ind. 122. The plaintiff, in order to protect his title, was compelled to redeem from the sheriff’s sale, and has a right of action for’ the breach of the covenant.
A further objection to the complaint is, that in the deed the name of the State in which the land is situated is left blank.
The name of the county and a description of the land are stated in the deed; it was executed and recorded in Madison county, Indiana. The complaint alleges that the omission of the name of the State was an inadvertence of the’ draftsman; that the land sold and intended to be conveyed was situated in the State of Indiana, and was the identical land in controversy, and prayed for general relief.
We think the complaint in this respect is sufficient to withstand a demurrer, without a specific prayer for reformation. Rhode v. Green, 26 Ind. 83. But if we were permitted to look to the evidence, it would be seen that the deed, as therein contained in the bill of exceptions, does state the name of Indiana as the State in which the land is situated. There was no error in overruling the demurrer to the complaint.
The first reason urged under the motion for a new trial is an objection to the introduction in evidence of the record of the proceedings for reinstatement of the transcripts of the judgments upon which the sheriff’s sale above referred to was had, said record having been destroyed by fire. The objection to the record was that it did not contain a copy of the summons and service thereon.
The record shows an appearance of the parties, a default of the judgment defendants, and that process had been duly issued and served upon the defendants, as was shown by the return of the sheriff thereon.
The appearance of the parties waived all objections to the process, and we think enough is shown to give the court jurisdiction of the case, and that the record was admissible evidence.
[387]*387The next reason insisted upon is an objection to the sufficiency of the affidavit for executions upon said judgments. The objection is that the affidavit does not negative payment of the judgments to the clerk. This was not necessary; the law did not authorize the clerk to receive money on transcripts from a justice of the peace. The affidavit averred non-payment to the judgment plaintiffs. That was sufficient. As to the objection that it did not state the amount due, it stated the amount of the judgments, and that they were not paid • that is substantially stating the amount due.
The third reason for a new trial is an objection to a question to the justice of the peace while on the witness stand, to wit, “ State what, if anything, you know of issuing and filing a certificate in the clerk’s office prior to the issuing of executions on these judgments ? ”
The justice was not required to keep a record of these facts, and it was competent to prove them by oral testimony! We see no reasonable objection to this question.
The fourth reason for a new trial is based upon an objection to the answer to the foregoing question. The bill of exceptions does not show that any objection was made to this answer, or that any motion was made to strike out. Therefore, this reason presents no question for consideration.
The last reason insisted upon by appellant is, that the evidence does not support the finding of the court. This is based, in part, upon the fact that it shows the plaintiff to be a remote grantee, and therefore not entitled to recover. This question has already been discussed and decided against appellant.
It is further insisted that the evidence shows an older judgment and a prior lien upon the land than the judgments and sale from which the plaintiff redeemed. If the defendant is liable for a prior encumbrance not paid off by the plaintiff, we can not see how that can relieve him from liability for the encumbrance which the plaintiff did pay in order to protect his title.
[388]*388Filed Jan. 28, 1885.
One witness testified that there was another transcript of :a judgment recorded of a later date than the alleged recording of the transcripts of the judgments upon which the land was sold, and from which sale the plaintiff had redeemed; ,-and that other transcript was the oldest encumbrance upon the land. This testimony was in conflict with other evidence in the case. And the court below having passed upon the weight of the evidence, this court will not disturb its finding thereon. "We think the evidence sustained the finding of the court, and there was no error in overruling the motion for a new trial. The judgment ought to be affirmed.
Pee Curiam. — It is therefore ordered, upon the foregoing ■opinion, that the judgment of the court below be and it is in all things affirmed, with costs.