Parker, C. J.
The first objection to the maintenance of the action, upon which the defendant relies, is, that there is no sufficient evidence of an eviction or ouster of the plaintiffs from the lands described in the deed.
It seems to be generally settled, that in order to support an action upon a covenant of warranty, there must be something more than evidence of an outstanding paramount title. There must be an assertion of that title, and an ouster, or disturbance, by means of it. But no technical eviction by a judgment at law is necessary, nor is any resistance of the paramount title, legal or otherwise, required, to the maintenance of an action upon the covenant. It is well settled, that an entry under the paramount title amounts to a breach [83]*83of a covenant of warranty. And the grantee may upon demand surrender the land to a claimant having a good title, and resort to his action. 4 Mass. R. 349, Hamilton vs. Cutts. But in Waldron vs. McCarty, 3 Johns. R. 464, where there was an outstanding mortgage at the time of the conveyance to the plaintiff, and the premises were afterwards sold upon the mortgage, in pursuance of a decree of the court of chancery, and purchased by the plaintiff, who then brought his action upon the covenant of warranty in his deed, the court held that an entry and expulsion were necessary, and that there was no sufficient eviction or disturbance of the possession. In our opinion this is carrying the principle too far. If the claimant holding the paramount title should enter upon the land, and the grantee should thereupon yield up the possession, he would immediately have a right of action upon the covenant of warranty in his deed ; and this right would not be barred or forfeited should he forthwith purchase the premises from the claimant, to whose superior title he had thus yielded the possession. He might on such purchase immediately reenter into the possession, and still maintain his action on the covenant. If, instead of this formality, he yields to the claims of a paramount title, and purchases without any actual entry of the claimant under it, where is the substantial difference ? For all practical purposes his title under the grant, to which the covenant is attached, and under which he originally entered, is as much defeated in the one case as in the other. He is in fact dispossessed, so far as that title is concerned. He is still in possession, but he is so under another title, adverse and paramount to his former one; and his purchase is, therefore, equivalent to an entry of the claimant. It is an ouster by his consent, and a reentry by himself, under the superior title, without going through with what would be at best a mere formality, where, conscious of the defect of the title under which he originally entered, he chooses to yield peaceably to the assertion of a better title, and to purchase it.
[84]*84The grantor who conveys a defective title, with a covenant of warranty, has no reason to complain of this. No action can be maintained against him upon his covenant, in such case, except upon proof of the actual existence of a title superior to the one he conveyed, and which his grantee could not withstand at law ; and if that proof is made out, with evidence that the title was asserted and yielded to, why should he be permitted to insist there must be a formal surrender of the possession, or actual entry, and that if this was not done there could be no breach of his covenant? How would his interests be benefitted by the going out, and going hack again ? The ouster, so far as holding under his title is concerned, is as effectual by a purchase without actually leaving the premises, as it could be by peaceably leaving them, or even by an expulsion through the operation of legal process. 17 Mass. R. 590, Sprague vs. Baker.
It appears in this case that Tillotson and Eastman held a deed, executed by the defendant prior to that which he made to the plaintiffs; and that Tillotson’s administrator, having a license for the purpose, and claiming title in his intestate, under the defendant, by virtue of this deed, offered the land for sale. The title is one within the terms of the defendant’s covenant. As against the defendant, and as against the plaintiffs, it was a valid title. Bedel vs. Loomis, ante 9. Stephenson, one of the plaintiffs, became a purchaser along with others. He is now in under Tillotson’s title. He may maintain his possession, under that title, against all persons who cannot show a better. If the other plaintiffs are in possession, of which there is no evidence, they cannot be held to be in possession by virtue of the defendant’s deed to them, as against the title of Stephenson and others under Tillotson. Their possession, as between themselves and Stephenson, and as between themselves and the defendant, may be held to jemain under the deed of the defendant, so far as any interest is conveyed by this last deed beyond that conveyed by the deed of the defendant to [85]*85Tillotson and Eastman; and so far as Eastman’s title is concerned, if there has been no ouster under that; but so far as the interest of Tillotson extended, Stephenson having yielded to that title by making the purchase, and he and the other purchasers under that title being lawfully in possession according to their title, he is dispossessed and ousted, thus far, under the deed of the defendant to the plaintiffs. And the other plaintiffs having yielded to that possession, as they could not but do, for Stephenson’s possession under that title is an ouster of them thus far, may well join in the maintenance of this action.
The second objection seems to be well founded. There is no competent evidence of any ouster or disturbance of the plaintiffs by Simeon Eastman, or by any person claiming under him. The mere fact that Eastman has conveyed to a third person does not of itself affect the plaintiffs. They are strangers to this assertion of title, if it may so be called, having in no way yielded to it, or been prejudiced by it. It is a private matter between Eastman and his grantee.
Nor can the sale by Tillotson’s administrator avail as a disturbance by Eastman or his grantee. The entry of one tenant in common is generally held to avail for the benefit of his co-tenant; and if in this case there had been an actual ouster by the entry of one tenant in common, without any qualification or limitation, such entry might have enured to the benefit of his co-tenant, and the result have been the same as if both had entered. But in this case the administrator of Tillotson cannot be considered as having entered or acted as a tenant in common, so that his act could avail for the benefit of a co-tenant. He does not appear to have made an actual entry. The ouster or disturbance results from his sale at auction under a license, the purchase by Stephenson and others, and the possession under that purchase. But this is of the undivided moiety conveyed in the deed of the defendant to Tillotson and Eastman. The administrator sold Tillotson’s part. This is not an assertion of [86]*86title in Eastman, or any grantee of his. It no more appears that any title under Eastman will be asserted, than if this sale had not been made. If there is any, these proceedings cannot be given in evidence to sustain it.
The third and fourth objections have not been urged in the argument, and may well be abandoned. Ante 9.
The fifth exception must be sustained.
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Parker, C. J.
The first objection to the maintenance of the action, upon which the defendant relies, is, that there is no sufficient evidence of an eviction or ouster of the plaintiffs from the lands described in the deed.
It seems to be generally settled, that in order to support an action upon a covenant of warranty, there must be something more than evidence of an outstanding paramount title. There must be an assertion of that title, and an ouster, or disturbance, by means of it. But no technical eviction by a judgment at law is necessary, nor is any resistance of the paramount title, legal or otherwise, required, to the maintenance of an action upon the covenant. It is well settled, that an entry under the paramount title amounts to a breach [83]*83of a covenant of warranty. And the grantee may upon demand surrender the land to a claimant having a good title, and resort to his action. 4 Mass. R. 349, Hamilton vs. Cutts. But in Waldron vs. McCarty, 3 Johns. R. 464, where there was an outstanding mortgage at the time of the conveyance to the plaintiff, and the premises were afterwards sold upon the mortgage, in pursuance of a decree of the court of chancery, and purchased by the plaintiff, who then brought his action upon the covenant of warranty in his deed, the court held that an entry and expulsion were necessary, and that there was no sufficient eviction or disturbance of the possession. In our opinion this is carrying the principle too far. If the claimant holding the paramount title should enter upon the land, and the grantee should thereupon yield up the possession, he would immediately have a right of action upon the covenant of warranty in his deed ; and this right would not be barred or forfeited should he forthwith purchase the premises from the claimant, to whose superior title he had thus yielded the possession. He might on such purchase immediately reenter into the possession, and still maintain his action on the covenant. If, instead of this formality, he yields to the claims of a paramount title, and purchases without any actual entry of the claimant under it, where is the substantial difference ? For all practical purposes his title under the grant, to which the covenant is attached, and under which he originally entered, is as much defeated in the one case as in the other. He is in fact dispossessed, so far as that title is concerned. He is still in possession, but he is so under another title, adverse and paramount to his former one; and his purchase is, therefore, equivalent to an entry of the claimant. It is an ouster by his consent, and a reentry by himself, under the superior title, without going through with what would be at best a mere formality, where, conscious of the defect of the title under which he originally entered, he chooses to yield peaceably to the assertion of a better title, and to purchase it.
[84]*84The grantor who conveys a defective title, with a covenant of warranty, has no reason to complain of this. No action can be maintained against him upon his covenant, in such case, except upon proof of the actual existence of a title superior to the one he conveyed, and which his grantee could not withstand at law ; and if that proof is made out, with evidence that the title was asserted and yielded to, why should he be permitted to insist there must be a formal surrender of the possession, or actual entry, and that if this was not done there could be no breach of his covenant? How would his interests be benefitted by the going out, and going hack again ? The ouster, so far as holding under his title is concerned, is as effectual by a purchase without actually leaving the premises, as it could be by peaceably leaving them, or even by an expulsion through the operation of legal process. 17 Mass. R. 590, Sprague vs. Baker.
It appears in this case that Tillotson and Eastman held a deed, executed by the defendant prior to that which he made to the plaintiffs; and that Tillotson’s administrator, having a license for the purpose, and claiming title in his intestate, under the defendant, by virtue of this deed, offered the land for sale. The title is one within the terms of the defendant’s covenant. As against the defendant, and as against the plaintiffs, it was a valid title. Bedel vs. Loomis, ante 9. Stephenson, one of the plaintiffs, became a purchaser along with others. He is now in under Tillotson’s title. He may maintain his possession, under that title, against all persons who cannot show a better. If the other plaintiffs are in possession, of which there is no evidence, they cannot be held to be in possession by virtue of the defendant’s deed to them, as against the title of Stephenson and others under Tillotson. Their possession, as between themselves and Stephenson, and as between themselves and the defendant, may be held to jemain under the deed of the defendant, so far as any interest is conveyed by this last deed beyond that conveyed by the deed of the defendant to [85]*85Tillotson and Eastman; and so far as Eastman’s title is concerned, if there has been no ouster under that; but so far as the interest of Tillotson extended, Stephenson having yielded to that title by making the purchase, and he and the other purchasers under that title being lawfully in possession according to their title, he is dispossessed and ousted, thus far, under the deed of the defendant to the plaintiffs. And the other plaintiffs having yielded to that possession, as they could not but do, for Stephenson’s possession under that title is an ouster of them thus far, may well join in the maintenance of this action.
The second objection seems to be well founded. There is no competent evidence of any ouster or disturbance of the plaintiffs by Simeon Eastman, or by any person claiming under him. The mere fact that Eastman has conveyed to a third person does not of itself affect the plaintiffs. They are strangers to this assertion of title, if it may so be called, having in no way yielded to it, or been prejudiced by it. It is a private matter between Eastman and his grantee.
Nor can the sale by Tillotson’s administrator avail as a disturbance by Eastman or his grantee. The entry of one tenant in common is generally held to avail for the benefit of his co-tenant; and if in this case there had been an actual ouster by the entry of one tenant in common, without any qualification or limitation, such entry might have enured to the benefit of his co-tenant, and the result have been the same as if both had entered. But in this case the administrator of Tillotson cannot be considered as having entered or acted as a tenant in common, so that his act could avail for the benefit of a co-tenant. He does not appear to have made an actual entry. The ouster or disturbance results from his sale at auction under a license, the purchase by Stephenson and others, and the possession under that purchase. But this is of the undivided moiety conveyed in the deed of the defendant to Tillotson and Eastman. The administrator sold Tillotson’s part. This is not an assertion of [86]*86title in Eastman, or any grantee of his. It no more appears that any title under Eastman will be asserted, than if this sale had not been made. If there is any, these proceedings cannot be given in evidence to sustain it.
The third and fourth objections have not been urged in the argument, and may well be abandoned. Ante 9.
The fifth exception must be sustained. If there was any thing in the agreement between the defendant and Jonathan Eastman which might avail as evidence in favor of the plaintiffs, measures should have been taken to produce the original, which is the best evidence of its contents. The plaintiffs derive no title through that agreement, and an office copy, therefore, is no better evidence than any other copy, even if it was a proper subject matter of record. A party is not entitled to put in evidence copies of every thing he may find upon the records. It is only when he claims title through deeds which have been recorded, that he is entitled to offer copies in evidence, without an effort first to produce the original. Pollard vs. Melvin, (10 N. H. Rep. 554.)
Upon the question of damages, it has been argued that the grant or quitclaim being only of the right, title and interest of the defendant, the covenant to warrant cannot be construed to extend beyond that, and that the damages therefore must be restrained to the value of the defendant’s interest. But this construction would render the covenant nearly nugatory. The right, title and interest of the grantor would necessarily pass by the deed, and to that there could be no superior or paramount title. The covenant upon such a construction might, perhaps, avail to compel the heirs of the grantor to warrant against the dower of his widow ; but even that might admit of question. Such a construction of the covenant is not warranted by the language of it, or by the apparent intention of the parties. The grantor engages to warrant and defend “ the premises” against all lawful claims arising by, from or under him, and the term “premises” here refers to the lands described in the deed. He conveys [87]*87his right to the lands, and agrees to warrant and defend them against his own acts, leaving the grantees to judge for themselves what title, if any, he formerly had in them.
But the rule of damages does not appear to have been correctly stated. Where the grantee has purchased in, or removed, the paramount title, he can recover no greater sum than the amount paid, with compensation for his trouble and expenses. 8 Pick. R. 457, Leffingwell vs. Elliot; 10 Pick. R. 204, S. C. A similar rule prevails in relation to the covenant against incumbrances, where the grantee has extinguished the incumbrance. 4 Mass. R. 627, Prescott vs. Trueman; 4 Conn. R. 512, Mitchell vs. Hazen; 7 Johns. R. 358, Delavergne vs. Norris. He cannot recover to that extent, if it exceed the value of the land. This matter has not been investigated. There is no evidence stated respecting the amount paid. The other plaintiffs, who join with Stephenson, cannot have a different rule of damages from that applicable to him. Whether the rale of damages on the covenant of warranty, where there has been no purchase of the paramount title, is the value of the land at the time of the ouster, or at the time of the purchase, may be left for further consideration whenever a case requires it.
Neio trial granted.