The opinion of the Court was delivered by
Royce, J.
This action is brought on the covenants contained in the deed of Samuel Wetherbee, original defendant, to Daniel Howe, of which the plaintiff claims to be assignee. The first count of the declaration is upon the covenant of seizin, and the second on the covenant of warranty, and the breach of this last is assigned in the final recovery of the land by Clark, in an action of ejectment against the plaintiff. Among other defences, the defendant has pleaded in bar of the first count, that the deed of Daniel Howe to Solomon Hopkins, contained the usual covenants of seizin and warranty, and also that the cause of action did not accrue to the plaintiff within eight years next before the commencement of the suit. And to the second count, that the deed from John Williams to the plaintiff, contained like covenants, which are still in force. To these pleas the plaintiff has demurred, and the defendant has joined in demurrer.
The time of limitation in a case of this kind, being ten years instead of eight, the plea of the statute is abandoned, and the attention of the Court has been confined to the two other pleas. The object of one of them is to show, that as Howe convej'ed with covenants, and thereby became liable to his grantee for any defect or failure of title, the remedy on the covenant of seizin did not pass with the land, but remained with Howe, as a means of enabling him to satisfy this liability to his grantee; and the other is introduced to show, that the right of action on the covenant of warranty, remains with John Williams for the same purpose. A general objection, however, is taken, that the covenant of seizin was broken when made, and therefore, being a chose in action, was not assignable to the plaintiff. And the Court are disposed to sustain this objection as being agreeable to the general opinion in this state; though the contrary doc[239]*239trine has been recently advanced in England. , The first count and the two first pleas demurred to are therefore laid out of the CclSe.
The covenant of warranty is one of those which run with the land, and is intended for the benefit of the ultimate grantee, in whose time it is broken. Where the intermediate conveyanc-' es are without a covenant of warranty, no one disputes but the original covenant passes with the land to the last grantee, and vests in him; and if, as the books show, such covenant is dependant upon, and annexed to the tenure, it would seem that as an accessary as incident it should equally attend the principal, whether the latter is conveyed with warranty or without. In the former case, however, the right of the first covenantee is not extinguished upon his becoming himself a grantor and covenantor, but to some purposes still subsists ; and the extent and qualifications of this remaining right, make the question now submitted. It is agreed, that when the intermediate grantor has made satisfaction to his own grantee, the right of suing upon the prior covenant is in him alone: but the inquiry still remains, who shall sue the prior covenant, while the intermediate one remains unsatisfied. The cases cited from Massachusetts, hold that the intermediate covenantor may bring the action, in respect of his liability to his own grantee ; and the authority from New-York, (14 Johns. 89) professing to follow these cases, has evidently overleaped them, by holding that he must bring it. These cases are all contradicted in Connecticut, where it is decided, that, until satisfaction made to his own grantee, the intermediate grantor cannot sue upon the prior covenant (1 Con. R. 244.) Recurring to the general principle, that the assignee is entitled to the benefit of covenants running with the land, and considering him as the only one directly injured by the breach of such covenants, and for whose sake they are created, we think the plaintiff is the person in whom the cause of action for the breach of this original covenant primarily attached. Whether John Williams had not a right of action also, which if previously asserted, would have suspended or defeated the plaintiff’s right, is a question which we are not called upon to determine. But his mere liability to the plaintiff does not avoid the present action.
It is next contended, that though the defence may be unavailing, there are defects in the declaration, which entitle the defendant tojudgment. The objections are, that it contains no sufficient averment that the plaintiff entered into possession under his deed; that the several conveyances are not sufficiently set forth ; that the title under which Clark recovered the land, is not properly described; and that no actual eviction is alleged.
As to the first objection, there is indeed no direct averment, that the plaintiff entered on the land; but we consider the allegation' that he was seized and possessed, coupled with the fact that an action of ejectment w;as supported against him, in which his actual possession must have been shown, sufficient for the-[240]*240present purpose. It is not the duty of the Court to conjecture, that the recovery in ejectment was collusive, or suffered by the plaintiff, without availing himself of every known defence, and requiring all necessary'proofs on the part of his adversary.
With respect to the second exception, there is a distinction between declaring by an assignee and against him. In , the latter case, it is enough to say generally, that the estate has come to the defendant by assignment, without even specifyingthe different conveyances ; whereas in the former, the plaintiff being privy to the mesne conveyances, must set them forth sufficiently to show the title vested in himself. In this case, the plaintiff having sufficiently set out the original deed from the defendant to Howe, with the covenant declared on, has derived the title from Howe to himself, by stating that the several grantors successively conveyed the premises by deed, in fee simple, giving the dales of the deeds, but not the operative parts of them, nor any formalities of their execution. It would seem, that in declarations by the assignee of a term for years, where the interest of the. original party to the lease was transmitted by a proper deed of assignment, a more particular description of that deed has been considered necessary. These deeds however, were not deeds of assignment, properly so called, but outright conveyances of the land. It is therefore sufficient, if they are well set forth as such; for the assignment of the covenant is but the legal consequence of its union with the land. And it is considered that this concise mode of making out an historical deduction of title to the plaintiff, answers every purpose of justice, by obliging him on trial, to show, at large, the title to which he refers, and by apprising the defendant of all that is to be produced against him.
The third objection is founded upon a literal adherence to the old rule, that to work a breach of this covenant, the entry upon the party must be under an “elder and better title.” The language here used is, that Clark recovered upon a title which was “elder and independent.” It appears, even from the authorities cited in support of this objection, that no set form of words is necessary to describe the right of the party entering. It is enough in all cases, that it appear to a common intent that such right was paramount to the title of the plaintiff, so that the entry was lawful. A greater certainty may, however, be expected -when the entry was by the act of the party, than when it was made under legal process.
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The opinion of the Court was delivered by
Royce, J.
This action is brought on the covenants contained in the deed of Samuel Wetherbee, original defendant, to Daniel Howe, of which the plaintiff claims to be assignee. The first count of the declaration is upon the covenant of seizin, and the second on the covenant of warranty, and the breach of this last is assigned in the final recovery of the land by Clark, in an action of ejectment against the plaintiff. Among other defences, the defendant has pleaded in bar of the first count, that the deed of Daniel Howe to Solomon Hopkins, contained the usual covenants of seizin and warranty, and also that the cause of action did not accrue to the plaintiff within eight years next before the commencement of the suit. And to the second count, that the deed from John Williams to the plaintiff, contained like covenants, which are still in force. To these pleas the plaintiff has demurred, and the defendant has joined in demurrer.
The time of limitation in a case of this kind, being ten years instead of eight, the plea of the statute is abandoned, and the attention of the Court has been confined to the two other pleas. The object of one of them is to show, that as Howe convej'ed with covenants, and thereby became liable to his grantee for any defect or failure of title, the remedy on the covenant of seizin did not pass with the land, but remained with Howe, as a means of enabling him to satisfy this liability to his grantee; and the other is introduced to show, that the right of action on the covenant of warranty, remains with John Williams for the same purpose. A general objection, however, is taken, that the covenant of seizin was broken when made, and therefore, being a chose in action, was not assignable to the plaintiff. And the Court are disposed to sustain this objection as being agreeable to the general opinion in this state; though the contrary doc[239]*239trine has been recently advanced in England. , The first count and the two first pleas demurred to are therefore laid out of the CclSe.
The covenant of warranty is one of those which run with the land, and is intended for the benefit of the ultimate grantee, in whose time it is broken. Where the intermediate conveyanc-' es are without a covenant of warranty, no one disputes but the original covenant passes with the land to the last grantee, and vests in him; and if, as the books show, such covenant is dependant upon, and annexed to the tenure, it would seem that as an accessary as incident it should equally attend the principal, whether the latter is conveyed with warranty or without. In the former case, however, the right of the first covenantee is not extinguished upon his becoming himself a grantor and covenantor, but to some purposes still subsists ; and the extent and qualifications of this remaining right, make the question now submitted. It is agreed, that when the intermediate grantor has made satisfaction to his own grantee, the right of suing upon the prior covenant is in him alone: but the inquiry still remains, who shall sue the prior covenant, while the intermediate one remains unsatisfied. The cases cited from Massachusetts, hold that the intermediate covenantor may bring the action, in respect of his liability to his own grantee ; and the authority from New-York, (14 Johns. 89) professing to follow these cases, has evidently overleaped them, by holding that he must bring it. These cases are all contradicted in Connecticut, where it is decided, that, until satisfaction made to his own grantee, the intermediate grantor cannot sue upon the prior covenant (1 Con. R. 244.) Recurring to the general principle, that the assignee is entitled to the benefit of covenants running with the land, and considering him as the only one directly injured by the breach of such covenants, and for whose sake they are created, we think the plaintiff is the person in whom the cause of action for the breach of this original covenant primarily attached. Whether John Williams had not a right of action also, which if previously asserted, would have suspended or defeated the plaintiff’s right, is a question which we are not called upon to determine. But his mere liability to the plaintiff does not avoid the present action.
It is next contended, that though the defence may be unavailing, there are defects in the declaration, which entitle the defendant tojudgment. The objections are, that it contains no sufficient averment that the plaintiff entered into possession under his deed; that the several conveyances are not sufficiently set forth ; that the title under which Clark recovered the land, is not properly described; and that no actual eviction is alleged.
As to the first objection, there is indeed no direct averment, that the plaintiff entered on the land; but we consider the allegation' that he was seized and possessed, coupled with the fact that an action of ejectment w;as supported against him, in which his actual possession must have been shown, sufficient for the-[240]*240present purpose. It is not the duty of the Court to conjecture, that the recovery in ejectment was collusive, or suffered by the plaintiff, without availing himself of every known defence, and requiring all necessary'proofs on the part of his adversary.
With respect to the second exception, there is a distinction between declaring by an assignee and against him. In , the latter case, it is enough to say generally, that the estate has come to the defendant by assignment, without even specifyingthe different conveyances ; whereas in the former, the plaintiff being privy to the mesne conveyances, must set them forth sufficiently to show the title vested in himself. In this case, the plaintiff having sufficiently set out the original deed from the defendant to Howe, with the covenant declared on, has derived the title from Howe to himself, by stating that the several grantors successively conveyed the premises by deed, in fee simple, giving the dales of the deeds, but not the operative parts of them, nor any formalities of their execution. It would seem, that in declarations by the assignee of a term for years, where the interest of the. original party to the lease was transmitted by a proper deed of assignment, a more particular description of that deed has been considered necessary. These deeds however, were not deeds of assignment, properly so called, but outright conveyances of the land. It is therefore sufficient, if they are well set forth as such; for the assignment of the covenant is but the legal consequence of its union with the land. And it is considered that this concise mode of making out an historical deduction of title to the plaintiff, answers every purpose of justice, by obliging him on trial, to show, at large, the title to which he refers, and by apprising the defendant of all that is to be produced against him.
The third objection is founded upon a literal adherence to the old rule, that to work a breach of this covenant, the entry upon the party must be under an “elder and better title.” The language here used is, that Clark recovered upon a title which was “elder and independent.” It appears, even from the authorities cited in support of this objection, that no set form of words is necessary to describe the right of the party entering. It is enough in all cases, that it appear to a common intent that such right was paramount to the title of the plaintiff, so that the entry was lawful. A greater certainty may, however, be expected -when the entry was by the act of the party, than when it was made under legal process. Probably, whenever it appears that the adverse claim existed at the making of the covenant, and that such claim has been established in a proper suit or judicial proceeding, it is apparently sufficient to occasion a breach of the covenant. The amount of the declaration in this particular is, that Clark had a title which was elder than that of the plaintiff, independent of it, and which was adjudged to be better, and prevailed.
The last objection supposes, that a final recovery in ejectment, by a title adverse and paramount, is not a breach of this cove-[241]*241cant, but that the plaintiff must have been actually turned out by writ of possession. In support of this it is said, that a covenant of warranty is the same in effect as a covenant for quiet enjoyment. If so, there is certainly much weight in the objection.' But we regard a covenant of this description as something more than one for quiet enjoyment. It is a covenant to defend, not the possession merely, but the land and the estate in it. Upon this occasion, we are to suppose the title derived from the defendant to have been fairly litigated and adjudged insufficient. The after ceremony of turning the plaintiff out of possession, being an act beyond the control of either of these parties, and depending wholly upon the pleasure of a stranger, ought not to affect the present remedjr of the plaintiff. He has the stipulation of the defendant, that he shall forever hold this land, in the character in which he purchased it, as a freeholder in fee simple, and this stipulation must be violated when the plaintiff is divested of all estate, and left in a precarious occupancy, as a trespasser to a third person.
Isaac Fletcher, for the plaintiff.
Ephraim Paddock, for the defendant.
Judgment, that the first count in the plaintiff’s declaration, is insufficient; that the second count is sufficient, and that the fourth plea in bar to the second count is insufficient.
Skinner, Ch. J. absent.
Prentiss, J. having been of counsel, did not sit in the cause.