
    Robert S. Coleman, Resp’t, v. Michael Bresnaham, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 11, 1889.)
    
    1. Estoppel—Deed—Covenant against incumbrances.
    Defendant and wife being seized of premises in entirety, conveyed to V-0. by a deed without covenant of warranty, but containing a covenant with W. 0., “ and his heirs and assigns,” against incumbrances. At this date P. and B. had a judgment against defendant which was a general lien on his interest in the premises. Under this judgment, subsequently, the sheriff sold and deeded the premises to P. and B., who conveyed to defendant. Plaintiff is grantor of W. 0. In ejectment, Held, that defendant was estopped by his covenant with W. 0. to assert a title under the judgment of P. and B., since that judgment existed when defendant covenanted against incumbrances.
    2. Deeds—Covenants.
    Since choses in action have been made assignable by Code Civ. Pro., § 1910, such a covenant is no longer personal to the covenantee, but may be taken advantage of by his assigns.
    3. Same.
    Equity, for the purposes of justice, repudiates the distinction between covenants which do and do not run with the land.
    Appeal from a judgment entered upon a verdict directed by the court in favor of the plaintiff, at the Washington county circuit.
    
      James C Rogers, for app’lt; Young & Kellogg, for resp’.b
   Landon, J.

The action is ejectment to recover ten and one-half acres of land of which the defendant admits he is in possession. The plaintiff claims title under a deed from the defendant and his wife to William Coleman, dated August 2, 1880. At the date of the execution of this deed the defendant and his wife were seized of the premises in entirety by virtue of a deed to both of them, as husband and wife. William Coleman died April 1, 1881, and under his will and a conveyance _ from his widow the plaintiff has succeeded to the title of William Coleman. The plaintiff is entitled to recover, unless a defence under the facts, now to be stated, is established. The deed given by defendant and wife to William Coleman contained no covenants of warranty of title, but did-, contain a covenant that the grantors, the defendant and his wife, “nor either of them have not made, done, committed, executed or suffered any act or acts, thing or things whatsoever, whereby or by means whereof the above mentioned or described premises, or any part or parcel thereof now are or at any time hereafter shall or may be impeached, charged or incumbered in any manner or way whatsoever,” except with respect to two mortgages not material to the present issue. There was then existing a judgment against this defendant in favor of Peck and Byrne which was a general lien upon his interest in the premises, feck and Byrne subsequently caused execution to be issued upon the judgment and under it the sheriff duly sold the defendant’s interest in the premises to Peck and Byrne and on November 1, 1883, he gave them a deed thereof. On September 8, 1884, Peck and Byrne gave a deed of the same premises to the defendant. The defendant jclaims title under the latter deed. The trial court held that he was estopped by his covenant in the deed to William Coleman to assert a title under a judgment which he in effect had covenanted did not exist.

As the defendant and his wife were both seized of the entirety of the premises, the husband was vested with the right to occupy and enjoy the profits of the land as owner during the joint lives of both husband and wife at the time that the lien of Peck and Byrne’s judgment against the husband attached, and hence the sheriff’s deed under the execution upon that judgment conveyed to Peck and Byrne the right to the possession of the premises so long as the husband should live. Beach v. Hollister, 3 Hun, 519 ; Bertles v. Nunan, 92 N. Y., 152; Zorntlein v. Bram, 100 id., 12; Bram v. Bram, 34 Hun, 487.

Peck and Byrne’s subsequent deed to defendant conveyed to him whatever title they had. The defendant thus made good his defense, unless he is estopped by the covenant in the deed to William Coleman. This covenant is against incumbrances, not of warranty of title. Under the law as'it was formerly understood, this covenant was a personal one, not running with the land but broken the instant it was made, thus vesting in the covenantee a chose in action, which was not assignable, and therefore did not pass to his grantee or devisee; the grantee could maintain no action upon it, and could not assert it. by was of estoppel, since he had acquired no interest in it 4 Kent’s Com., 471; Greenby v. Wilcocks, 2 Johns., 1; Hamilton v. Wylson, 4 id., 72 ; 2 Wait’s Act. and Def., 380.

The injustice of this rule was pointed out by Livingston, J., in Greenby v. Wilcocks, and by Wilde, J„ in Sprague v. Baker, 17 Mass., 589. Buller, J., in Master v. Miller, 4 D. & E., 340, thought it very questionable. The rule has recently been reaffirmed in Massachusetts, Ladd v. Noyes, 137 Mass., 151, and in Virginia, Marbury v. Thornton, 1 S. E. Rep., 909. Since the statute has made such choses in action assignable, Code Civ. Pro., § 1910; old Code, § 111, a disposition has been shown to repudiate the ancient rule and to permit the grantee or devisee of the covenantee, if he suffers from the breach of the covenant, to resort to the covenant for protection and redress. Boyd v. Belmont, 58 How. Pr., 513; Ernst v. Parsons, 54 id., 163; Andrews v. Appel, 22 Hun, 429; Colby v. Osgood, 29 Barb., 339.

The present case illustrates the injustice of the former rule-Although the covenant was broken the instant the deed was given, William Coleman, the grantee, suffered only nominal damages, and could have recovered no more. Delavergne v. Norris, 7 Johns., 358. The real damage was done, if at all, when Peck and Byrne sold the land under their judgment, that is, after the title-became vested in the plaintiff. If William Coleman’s executors-had brought an action they could not have recovered any more than their testator could. Unless the plaintiff takes the benefit of the covenant, it is practically good for nothing. Equity for the-purposes of justice repudiates the distinction between covenants which do and do not run with the land. Trustees v. Lynch, 70 N. Y., 440, 449. The covenant was with the grantee, “ his heirs and assigns,” thus in the intention of the parties being prospective- and beneficial to William Coleman’s privies in estate. Phœnix Ins. Co. v. Continental Ins. Co., 87 N. Y., 400.

It may be true that no part of the cause of action for the nominal damages recoverable by William Coleman for covenant broken, descended to the plaintiff, but the plaintiff is within the meaning of the “ heirs and assigns ” with whom the defendant also covenanted, and is the only person whom the covenant can protect or a breach of it injure. We think the plaintiff can avail himself of the covenant.

It follows that the defendant is estopped to assert against the plaintiff any title in himself based upon the judgment. Holcomb v. Holcomb, 2 Barb., 20; Sparrow v. Kingman, 1 N. Y., 242.

It is suggested that estoppel may avail to prevent the defendant from asserting title in himself, but as the plaintiff must recover upon, the strengh of his own title, and the fact being that Peck and Byrne divested him of it by the paramount force of their judgment,, estoppel cannot re-vest title in him. The contest is now solely between plaintiff and defendant. The defendant is estopped to avail himself of any advantage under that judgment to the prejudice of plaintiff. Peck and Byrne’s title rests upon that judgment; the defendant cannot allege that such a judgment ever existed; he cannot allege title in Peck and Byrne without alleging the judgment ; he is, therefore, silenced with respect to that title, and hence has and can make no defense to the plaintiff’s title. Unless the estoppel has this effect it is not an estoppel.

We have examined the other questions presented and think they were correctly disposed of by the trial court.

Judgment affirmed, with costs.

Learned, P. J., and Putnam, J., concur.  