Lacy, Judge,
delivered the opinion of the court:
This is an action of covenant founded on a writing under seal, by which Logan binds himself to convey to Moulder Lovely claim of one Peter Mercer, to three hundred and twenty acres of land, and warrants the same to be a good claim agreeably to the act of congress, and to make such other and further proof as may be found necessary to establish its validity. The breaches assigned negative the general, terms of the covenant; and allege, that the covenantor-did not make any other and further proof to establish the claim, that the claim is not a good and valid claim, and that at the time of executing the deed tbe defendant had no title to said claim.
At the return term of the writ, the defendant in the court below,- appeared and craved oyer of the writing sued on, and filed a general, demurrer to the declaration, to which there was a joinder, and judgment was thereon given against the demurrer. He then put in a plea of performance, averring that no other or further proof was necessary to establish the claim, that the claim was a good and valid claim, and that he had some title to the settlement right of him, the said Mercer.
To this plea there was a demurrer, joinder, and.judgment against the sufficiency of the pica; and a wrifof enquiry was thereupon award-, ed to the next succeeding term. At the return term of the writ, the entry is, that the defendant made default, and a jury was then called to execute the writ of enquiry;' who assessed damages for the breach of the condition of the covenant against the .defendant, and final judgment was thereon rendered. At the trial of Use cause, the court instructed the jury that the measure of damages was the value of a Lovely claim at the timo of executing the covenant, and refused to permit the attorney lor the defendant to read its conditions as evidence jn ■mitigation of damages.
To the opinion of the court a bill of exceptions was filed, and made' 'part of the record, and the case is now brought up to this court, by a writ of error to reverse the judgment below.
The assignment of errors presents the following questions for oür examination and decision, First, arc the proceedings in the cause, in awarding and executing the writ of enquiry, illegal? Secondly, is there a good cause of action laid in the declaration, and are the breaches well assigned, or in other words, is the defendant’s plea a sufficient answer to, or denial of the allegations charged? Thirdly, what is the true rule or measure of damages for a breach of covenant of seisin, warranty, or to convey a good and valid title. The first question presents no difficulty, and may be briefly disposed of. The writ was awarded and executed in strict conformity with our statute on the subject, the ■ entry that the defendant made default-at the return term of the writ, ' was wholly idle and nugatory, for the record shows that before that ■time, he had appeared and pleaded to the action; and such an entry being an improper and illegal one, surely cannot be permitted to set aside and annul both an interlocutory and final judgment properly "rendered, and regularly entered up in the cause. See Dig.,p, 322.
Before the court proceeds further in their investigation, it is necesSa-try to define what is meant by the term Lovely claim. It is a donation made by the general government, of two quarter-sections of the public lands, according to the legal subdivisions of the public surveys, to a particular class of persons, who are embraced by the act of congress of the 2M¡> of May, 1828, and who have complied with the conditions therein imposed, and also with the stipulations of the treaty ratified between the United States and the Cherokee Nation of Indians, on the 28th of May, 1828. See 2d vol. Laws of the U. States relating to the public, lands, p. 233, sec. 8-9.; and Indian Treaties, JYo. 97, p. 52. The evidence of the claim, is the certificate of the register and receiver of the land office usually endorseefon the back of the proof taken before them, showing that the conditions of the act, and the stipulations of the treaty have been complied with. Whenever the settler is able to adduce the certificate of title, his right of entry, which in the first instance was inchoate, then becomes complete, and he is fully author- . ized to make a location or entry of the land claimed according to the provision of the law under which his interest accrues; and the govern- ' ment on the presentation of the certificate of the register of the land •office to the secretary of the treasury, is bound to issue to him or Ms heirs a patent or grant for the land. The covenant declared on, warrants and defends such a claim to be a good and valid claim, agreeably to the act of congress, and purports to convey a good and lawful title under it. The declaration is not accurately Or formally drawn, but is believed, however, to be substantially correct, if it contains a good cause of action. As there was a demurrer to the plea, if the declaration is defective, or the breach is not properly assigned, the court will go, back to it, and give judgement against him‘who committed the first fault in the pleadings. This brings us to the, consideration of the nature of the covenant sued on and the conditions it contains. It is a deed of bargain and sale to convey a Lovely claim, with a warranty of title. The breaches assigned negative the general words of the covenant; but the cause of action; if there be any, arises from the allegation, that at the time the defendant executed-the covenant, he had no good or valid title to the claim in controversy. It is contended by the plaintiff in error, that this is an action founded on a warranty of title, and that no recovery can be had, because the declaration no where alleges an eviction. The old covenant of warranty usually inserted in ancient deeds, and the action upon them have long since become1 obsolete in England, and it is believed, they never had any legal existence under our form of government; they were real covenants running with the land, whereby the grantor of an estate in freehold warranted the title, and he and his heirs upon voucher, or judgment rendered against him in a writ zbarrantia chartae, were bound to give other lands to the value of those from which there had been eviction by a paramount title; the heir of the warrantor was liable only on the condition that he had other land of equal value cast on him by descent.
The introduction of personal covenants into modern deeds, has long since superseded this mode of conveyance, and the usual covenants in such case are: “First, that the grarttor is lawfully seized; Second, that he has a good right to convey; Third, that the land is free from incum-brance; Fourth, that the grantee shall quietly enjoy; Fifth, that the grantor will warrant and defend the title against all lawful claims.”
' The covenants of seizin, and of right to convey, and against incum-brances are personal covenants, not running with the land, nor passing to the assignee, but are declared to be mere dioses in action, not assignable at common law. The covenants of warranty, and of quiet enjoyment, are in the nature of a real covenant, and run with the land, and descend to the heirs, and Eire made transferable to the assignee.
In the present case the cause of action does not result from the cov-enañt of warranty, nor on the defendant’s failure to make other and further proof to establish the validity of the claim; for the plea fully 1 , .
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Lacy, Judge,
delivered the opinion of the court:
This is an action of covenant founded on a writing under seal, by which Logan binds himself to convey to Moulder Lovely claim of one Peter Mercer, to three hundred and twenty acres of land, and warrants the same to be a good claim agreeably to the act of congress, and to make such other and further proof as may be found necessary to establish its validity. The breaches assigned negative the general, terms of the covenant; and allege, that the covenantor-did not make any other and further proof to establish the claim, that the claim is not a good and valid claim, and that at the time of executing the deed tbe defendant had no title to said claim.
At the return term of the writ, the defendant in the court below,- appeared and craved oyer of the writing sued on, and filed a general, demurrer to the declaration, to which there was a joinder, and judgment was thereon given against the demurrer. He then put in a plea of performance, averring that no other or further proof was necessary to establish the claim, that the claim was a good and valid claim, and that he had some title to the settlement right of him, the said Mercer.
To this plea there was a demurrer, joinder, and.judgment against the sufficiency of the pica; and a wrifof enquiry was thereupon award-, ed to the next succeeding term. At the return term of the writ, the entry is, that the defendant made default, and a jury was then called to execute the writ of enquiry;' who assessed damages for the breach of the condition of the covenant against the .defendant, and final judgment was thereon rendered. At the trial of Use cause, the court instructed the jury that the measure of damages was the value of a Lovely claim at the timo of executing the covenant, and refused to permit the attorney lor the defendant to read its conditions as evidence jn ■mitigation of damages.
To the opinion of the court a bill of exceptions was filed, and made' 'part of the record, and the case is now brought up to this court, by a writ of error to reverse the judgment below.
The assignment of errors presents the following questions for oür examination and decision, First, arc the proceedings in the cause, in awarding and executing the writ of enquiry, illegal? Secondly, is there a good cause of action laid in the declaration, and are the breaches well assigned, or in other words, is the defendant’s plea a sufficient answer to, or denial of the allegations charged? Thirdly, what is the true rule or measure of damages for a breach of covenant of seisin, warranty, or to convey a good and valid title. The first question presents no difficulty, and may be briefly disposed of. The writ was awarded and executed in strict conformity with our statute on the subject, the ■ entry that the defendant made default-at the return term of the writ, ' was wholly idle and nugatory, for the record shows that before that ■time, he had appeared and pleaded to the action; and such an entry being an improper and illegal one, surely cannot be permitted to set aside and annul both an interlocutory and final judgment properly "rendered, and regularly entered up in the cause. See Dig.,p, 322.
Before the court proceeds further in their investigation, it is necesSa-try to define what is meant by the term Lovely claim. It is a donation made by the general government, of two quarter-sections of the public lands, according to the legal subdivisions of the public surveys, to a particular class of persons, who are embraced by the act of congress of the 2M¡> of May, 1828, and who have complied with the conditions therein imposed, and also with the stipulations of the treaty ratified between the United States and the Cherokee Nation of Indians, on the 28th of May, 1828. See 2d vol. Laws of the U. States relating to the public, lands, p. 233, sec. 8-9.; and Indian Treaties, JYo. 97, p. 52. The evidence of the claim, is the certificate of the register and receiver of the land office usually endorseefon the back of the proof taken before them, showing that the conditions of the act, and the stipulations of the treaty have been complied with. Whenever the settler is able to adduce the certificate of title, his right of entry, which in the first instance was inchoate, then becomes complete, and he is fully author- . ized to make a location or entry of the land claimed according to the provision of the law under which his interest accrues; and the govern- ' ment on the presentation of the certificate of the register of the land •office to the secretary of the treasury, is bound to issue to him or Ms heirs a patent or grant for the land. The covenant declared on, warrants and defends such a claim to be a good and valid claim, agreeably to the act of congress, and purports to convey a good and lawful title under it. The declaration is not accurately Or formally drawn, but is believed, however, to be substantially correct, if it contains a good cause of action. As there was a demurrer to the plea, if the declaration is defective, or the breach is not properly assigned, the court will go, back to it, and give judgement against him‘who committed the first fault in the pleadings. This brings us to the, consideration of the nature of the covenant sued on and the conditions it contains. It is a deed of bargain and sale to convey a Lovely claim, with a warranty of title. The breaches assigned negative the general words of the covenant; but the cause of action; if there be any, arises from the allegation, that at the time the defendant executed-the covenant, he had no good or valid title to the claim in controversy. It is contended by the plaintiff in error, that this is an action founded on a warranty of title, and that no recovery can be had, because the declaration no where alleges an eviction. The old covenant of warranty usually inserted in ancient deeds, and the action upon them have long since become1 obsolete in England, and it is believed, they never had any legal existence under our form of government; they were real covenants running with the land, whereby the grantor of an estate in freehold warranted the title, and he and his heirs upon voucher, or judgment rendered against him in a writ zbarrantia chartae, were bound to give other lands to the value of those from which there had been eviction by a paramount title; the heir of the warrantor was liable only on the condition that he had other land of equal value cast on him by descent.
The introduction of personal covenants into modern deeds, has long since superseded this mode of conveyance, and the usual covenants in such case are: “First, that the grarttor is lawfully seized; Second, that he has a good right to convey; Third, that the land is free from incum-brance; Fourth, that the grantee shall quietly enjoy; Fifth, that the grantor will warrant and defend the title against all lawful claims.”
' The covenants of seizin, and of right to convey, and against incum-brances are personal covenants, not running with the land, nor passing to the assignee, but are declared to be mere dioses in action, not assignable at common law. The covenants of warranty, and of quiet enjoyment, are in the nature of a real covenant, and run with the land, and descend to the heirs, and Eire made transferable to the assignee.
In the present case the cause of action does not result from the cov-enañt of warranty, nor on the defendant’s failure to make other and further proof to establish the validity of the claim; for the plea fully 1 , . answers both of these allegations; but it accrues on the substantial averment, that at the time of executing the deed, Logan had no right nor title to the donation claim of Peter Mercer.
What is the obligation imposed by the assignment of such breach? Must the vender allege an eviction to sustain his action, or if he avers that the vendor never had any title to convey, is the allegation of an eviction dispensed with 1 When was the covenant broken, or at what time did the cause of action accrue? This question is readily answered by attending to the nature of the pleadings in the cause, and the legal presumptions they raise.
The grantor is certainly bound by the deed. In that he has asserted he has a good and valid claim,' or full power and lawful authority to convey, and consequently he has voluntarily taken upon himself the burden of proof, and as it was more ‘ properly in his own knowledge, what estate he had granted, than that of the grantee, who is .presumed to be a stranger to it, the court will compel him to produce the evidence of his title, whenever it is legally demanded; so that they may see whether at the time he executed the covenant, he had a good and valid claim, or full power and lawful authority to convey; the vendee is supposed to rely on the vendor’s deed, and if he suspect the title to be defective, he is not bound to wait until he is lawfully evicted, hut may commence suit at any time, and maintain his action unless the vendor show he has performed the condition of his bond. Whát is that condition? “The vendor has covenanted he had a good right and law-' ful authority to convey, which is equivalent to a covenant of seizin; and that being the case, the law will not permit him to shift the responsi-sibility from his own shoulders on to those of the vendee.” It is immaterial in whom the title is vested; the grantor has declared that it vests in him, and he is bound by his deed and the legal presumption arising from it, to show what title he possessed, when his grantee questions it in a court of justice. His authority to execute the covenant is derived from the legal interest he had in the claim, and where there is no right or title there can be no authority to sell. It is, therefore, unnecessary for a plaintiff in declaring cn a covenant oí seizin, whore a defendant binds himself that he has good right, full power, or lawful authority to grant, to allege an eviction, in order to maintain the action, for the covenant is broken if at all, at the very moment it is executed, and a right, of action accrues instantly upon the breach of it. All cove-uanis that are not prospective, and that do not pass with the land, are strictly personal covenants, and if there is no right or authority in the party executing them, they are declared to be broken so soon as made; and may be sued on at any time, and a recovery had without alleging an eviction, or an interruption in the title. The leading case on this subject is that of Bradshaw, 9 Co. Rep. 60; where the true rule was laid down by all the judges, which has been followed up ever since. In the case of Muscot vs. Ballet, Cro. Jac., 369; and Glinister vs. Audley, Sir T. Raym. 14; the question was again brought under disciussion, and the decision in Bradshaw's case fully sustained. The doctrine settled by those authorities has been repeatedly approved in many recent cases by the court of king’s bench,-and it has been expressly recognised and reasserted by most, if not all of the American decisions on the subject, 2 Saund. 181, n. b.; 8 East. 80; 8 T. R. 459; Bac. Ab. Cov. 15; Pullin vs. Nicholas, 1 Lev. 83; Cro. Eliz. 749, 916; Greenby vs. Willcocks, 2 J. R. 1; Hamilton vs. Wilson, 4 J. R. 72; Abbott vs. Allen, 14 J. R. 248; Com. Dig. Pleader C. 45, 49; Marston vs. Hobbs, 2 Mass. 433; 2 Root's Rep. 4; Sug. on Vend. 415; Morris vs. Phelps, 5 J. R. 49; Delavergne vs. Norris, 7 J. R. 348; S. P. Stanard vs. Eldridge, 16 J. R. 254. The rule is different in covenants that run with the land; at common law upon voucher, or upon the writ of warrants chartas,the demandant recovered of the warrantor to have other land of equal value with the lands of which feoffee is evicted; and when personal covenants were introduced as a substitute for the-remedy on the vouchers and warrantia, the established measure of damages was not at all varied or affected. In order to charge a party-on a covenant of warranty, an eviction must be alleged by a paramount-legal title, and so on a covenant, for quiet enjoyment, for in both óf ’these cases there is no breach of the condition, unless an eviction be had, for it is that which constitutes the breach, and gives a good cause of action; 2 Saund. 178, a. n. 9, 181 a. n. 10; Dudley vs. Folleatt, 3 T. R. 584; Johnson vs. Smith, 1 H. Blackstone, 34; Greenby vs. Wilcocks, 2 J. R. 1; 3 Marsh. 324; Marston vs. Hobbs, 2 Mass. 439 ; 2 Kent, 475. This principle may be considered conclusively settled; that in all personal covenants, where the grantor has no right or title to convey, the breach of the covenant happens, if at all, at the very moment of time the deed-is executed; and in-declaring on such a covenant, the plaintiff need not aver an eviction, but the burden of proof is with the defendant, and it devolves on him to show what interest he had in the estate or chattels, in order that the court may judge what authority he had to make the grant or agreement. This being the case, it necessarily follows, that the declaration in. the present case, sejs out a good cause of action, and that the breaches are there properly assigned. It has already been observed that the plea answers fully every part of the declaration except the averment, the defendant had no title to the Lovely claim of Peter Mercer. In regard to that breach, which constitutes the real cause of action, it wholly avoids the issue; and hence as-the breath is well'assigned, the plea must of course, be defective.. The allegation is, that the defendant in the court below has no right nor title to the claim he conveyed. The plea avers that “he had some title to the said settlement right of the said Mercer.” What kind of interest or title had he to the claim as set forth in his plea? Was it an estate for life or for years, or was he seized of an indefeasible estate of inheritance in fee. It certainly cannot be pretended that the words “some title,” mean any one or all of these estates. If they mean any thing, it is, that the defendant had no title at all, and his- plea negatively establishes the charge made in the declaration, which fe, that at the lime the defendant executed the covenant sued on, he had no right, title or interest in the Lovely claim of Peter Mercer. The court, therefore,rightfully sustained the demurrer to the plea.
The only remaining question to be decided is, what constitutes the true value or measure of damages in actions for a breach of personal covenant where there is no fraud alleged. This question can scarcely ' any longer be regarded as open for investigation; the adjudications on the subject have been so frequent and conclusive upon the point, that nothing can be said in support of the justice or policy of the rule.
It may now be asserted that the ultimate extent of the vendor’s responsibility, under all and any of the usual covenants in his deed, is the purchase money with interest. This is believed to be the general rule throughout the United States, and is particularly applicable to the condition and situation of our country; Staats vs. Ex't'rs of Ten. Eyck Caines 112; Pitcher vs. Livingston, 4 Johnson R. 1; Caswell vs. Wendall, 4 Mass. R. 108; 4 Dallas, 441; Marston vs. Hobbs, 2 Mass. Rep. 434, 455; Dowsale vs. Crains, 2 Wheaton, 62, n. c.; Letcher & Arnold vs. Woodson, 1 Brock., 212; Shepherd & Others vs. Hampton, 4 Cond. Rep., 233; Hopkins vs. Lee, 6 Cond. Rep., 23; Sumner vs. Williams, 8 Mass. Rep. 162; Nichols vs. Walter, 8 Mass. Rep. 243;
The consideration money and interest is the compensation in damages that the vendee is entitled to recover, and the covenant, or deed, is evidence of that value. u The interest is given to countervail the mense profits that the grantor is liable for, and is, or ought to be commensurate in point of lime, with the legal claim of the mense profits.” The consideration money is the amount agreed on by the parties themselves. What is it that the vendee has parted with, or the vendor received? Merely the purchase money with interest; certainly then, the vendor should not be liable where there is no intention or evidence of fraud, to a greater extent than his vendee has been injured; and that is the consideration money and interest. To establish any other principle would be to commit, in most cases, great and palpable injustice, and in many, certain and speedy ruin. In the instructions given by the circuit court to the jury on that point, the principle here laid down as to the measure of damages was clearly departed from, and of course, that decision is manifestly erroneous.
The instructions are, that the value of a Lovely claim at the date of the execution of the covenant, and not the consideration money and interest was the correct measure of damages. The judgment of the court below must therefore be reversed with costs, and the cause remanded to be proceeded in agreeably to the opinion here expressed.