
    James Devore vs. Abraham Sunderland.
    Whether the covenants of seizin and of power to convey are personal or real, and running with the land, depend upon the fact whether the grantor is in,possession or not, at the time of the conveyance.
    If the grantor be in actual possession, these covenants attach to, and run with the land, and are not broken until eviction by title paramount.
    If the grantor be not in actual possession, either in fact or in law, the covenants are in presentí and personal, and no one can maintain an action on their breach, but the grantee to whom they were directly made.
    This is a Writ of Error directed to the Court of Common Pleas of Muskingum County.
    The original action was Covenant. The declaration contained two counts— the first of which set forth that the defendant and his wife, on the 29th day of October, 1828, by their deed of that date, duly executed, attested, acknowledged and delivered, in consideration of one hundred dollars, gave, granted, bargained, sold, aliened, conveyed, and confirmed unto one Joseph Gorsuch, his heirs and assigns, Lot 15, in Range 8, Township 2, and Section 1, in the “United States Military District,” with all the appurtenances, privileges and commodities to the same belonging, or in ■ any wise appertaining; and that the defendant did, by such deed, covenant with Gorsuch, his heirs and assigns, “that before and until the sealing and delivery of the said deed, he, the said defendant, was lawfully seized in fee of the premises and appurtenances — that he had good right, full power and lawful authority in the same, to and convey the same to Gorsuch — and that the premises free from ajl former gifts, grants, or other incumbrance whatever.” It is averred that Gorsuch, on the 14th day of January, 1830, by his deed of that date, duly executed, attested, acknowledged, and delivered, in consideration of one hundred and seventy-five dollars, conveyed the same premises unto one Isaac Garrett, his heirs and assigns, and that said Garrett, on the 28th day of June, 1831, by his deed of that date, duly executed, attested, acknowledged, and delivered, in consideration of one hundred and fifty dollars, conveyed the same to the plaintiff, his heirs and assigns.
    The breach assigned is — that the defendant, before and until, or at the time of the sealing and delivery of his deed to Gorsuch, was not lawfully seized in fee of the premises; nor had he then, or any lime before, or afterwards, good right, full power, and lawful authority, to sell and convey -the premises, or any part thereof, as the same were sold and conveyed, or intended to be sold and conveyed to Gorsuch .; nor were the premises then, nor have they at any time since been, free from all former gifts, grants, or incumbrances whatever; but on the contrary thereof, at the time of the sealing and delivery of the deed to Gorsuch, the paramount title and freehold of the premises were, and ever since have been, and still are, in other persons than the defendant, or those claiming under him; by virtue of which paramount title, the plaintiff afterwards, on the 1st day of January, 1844, was evicted out of and from the premises.
    The second count is similar to the first, in all respects, except that it sets forth the covenants of the defendant, contained in .the deed to Gorsuch, as being, that the defendant and his wife were lawfully seized in fee of the premises — that the defendant and his wife, had good right, full power and lawful authority in the same to sell and convey the same to Gorsuch, and that the premises were free from all former gifts, grants, or other incumbrance whatever; and assigns for breach — that the defendant and Ms wife, before and until, or at the time of the sealing and delivery of the deed to Gorsuch, were not, nor was either of them, lawfully seized in fee of the premises; nor had the defendant and Ms wife, or either of them, then, or at any time before or afterwards, good right, full power and lawful authority to sell and convey the premises, or any part thereof, as the same were sold and conveyed to Gorsuch, nor were the premises then, nor have they at any time since, been free from all former gifts, grants, and incumbrance whatever; but on the contrary thereof, at the lime of the sealing and delivery of the deed to Gorsuch, the paramount title and freehold of the premises were, and ever since have been and still are, in other persons than the defendant and Ms,wife, or those claiming under them ; by virtue of which paramount title the plaintiff, afterwards, on the 1st day of January, 1844, was evicted out of and from the premises. '
    The defendant put in the plea of non est factum, without any affidavit of its truth.
    He filed, with this plea, a notice of divers special matters, to be given in evidence by him, in bar of the action. The notice sets forth —
    1st. That it was not intended by the defendant and Gorsuch, that the defendant should execute to Gorsuch a deed containing any covenants, or that any other than a quit claim deed should be given ; and that the covenants contained in the deed counted upon, were inserted thereto by mistake.
    2nd. That the defendant was never seized in fact, or in actual possession of the premises mentioned in the declaration — that the premises were wild land, purchased by the defendant, at an Auditor’s sale for taxes.
    3d. That it was well known to the plaintiff, that, the defendant was never in actual possession of the premises — that the same were wild land, whew purchased by him and sold to Gorsuch— that they had been purchased by the defendant at an Auditor's sale for taxes — that the title thus acquired was doubtful and well known as such to the plaintiff, and that for these reasons the premises were purchased-by the plaintiff, and those through whom he claimed, for a nominal consideration, compared with what would have been their true value, if the title had been considered beyond doubt.
    The cause came on for trial at the November Term, 1846, of the Court of Common Pleas. The Court, upon the objection thereto by the plaintiff, rejected the evidence offered by the defendant, of the alleged intention of the parties other than that expressed in the deed counted upon, and refused to allow proof to be given of the alleged mistake as to the covenants in the deed. The defendant, however, was permitted under his notice, to give evidence tending to show, that at the time of the conveyance from'the defendant to Gorsu.ch, the premises were wild, and that the defendant had not been in the actual occupation thereof. The jury, under the instruction of the Court, returned a verdict for the defendant.
    The pláiritiff moved the Court to set aside' the verdict, and to award a new trial, assigning as reasons therefor —
    1st. The misdirection of the Court to the jury in matter of law.
    2d. That the verdict was against evidence.
    The'Court overruled the motion and rendered judgment upon the verdict.
    ThP plaintiff tendered his bill of exceptions, which being signed and sealed by the Court, and made part of the record, is as follows :
    “ Be it remembered that on the trial of this cause, the execution and delivery of the several deeds of conveyance mentioned in the declaration were proved — all as stated in the declaration; and that the plaintiff had been evicted, by paramount title, on a recovery had against him, in ejectment, in the Supreme Court of Muskingum county.
    The several deeds described the premises as Lot 15, Section 1, Township 2, Range 8’, United States Military; and stated that it was the same premises that had been sold to the defendant for taxes, and conveyed to him by the Auditor of Muskingum county, and the deed from the Auditor to him, was referred to, as recorded in the Recorder’s office of Muskingum county. It was further proved that the premises, after the purchase of the defendant, at the tax sale, stood listed on the duplicate of said Auditor’s Office, for taxation, in the name of the defendant, from 1825, up to 1830; that it . appeared by the books in the Auditor’s Office, that during all that time the taxes had been regularly paid; but the books did not show by whom payment had been made; and here the plaintiff rested his casé: Wheréupon, the defendant moved the Court to direct a nonsuit, because the plaintiff had not alleged and proved that,' at the time the defendant made the conveyance to Gorsuch, he had a seizin in deed of said tract of land, which motion was overruled by the Court.
    It was then proved by the defendant, that at the time of the conveyance by the defendant to Joseph Gorsuch, mentioned in the declaration, the- defendant held a deed for the premises from the said Auditor, and that the premises were, at the time of such conveyance, as well as at the.time of the purchase thereof by the defendant, at the tax sale, wild and uncultivated land —no person residing thereon.
    That after the conveyance to Gorsuch, the premises were listed in his name, for taxation, on the Auditor’s books, and when he conveyed the same to Isaac Garrett, as mentioned in the declaration, the witnesses stated, that they believed, accord ing' to the best -of their recollection, (though not positive,) that preparation had been made, by Gorsuch, for building a cabin — a spot cleared up and some timbers cut for that purpose — that Isaac Garrett, after the conveyance to him, by Gorsuch, mentioned in the declaration, cleared and fenced a part of the premises, and cultivated the same and built a cabin thereon,-in which he resided up to the time of his conveyance to the plaintiff, mentioned in the declaration; after which last mentioned conveyance, the plaintiff made extensive improvements upon the premises and resided thereon, until evicted under the judgment in ejectment.
    
      It was further proved that the defendant, after his purchase at the tax sale, and before his conveyance to Gorsuch, said he had been on the land once.
    It was further proved that he had cleared no part of the premises, and that he had never resided thereon ; but resided five or six miles from the same — nor cut any timber therefrom, but that he claimed the premises as his own; and that while he held them under his tax purchase, they were called and known in the neighborhood as “ Sunderland’s land,” until the conveyance to Gorsuch, and then as “ Gorsuch’s land,” until the conveyance to Garrett, and then as “ Garrett’s land,” until the conveyance to the plaintiff, and that the plaintiff resided three or four miles from the premises, before his purchase thereof.
    Upon this evidence the Court charged the jury, that the plaintiff was not entitled to recover on the covenant contained in the defendant’s deed that the defendant “ was lawfully seized in fee of the premises,” unless it appeared that the defendant was, at the time of his conveyance, in the actual occupation of the premises, by himself of tenant under him — that, to support this action, there must have been a visible possession by the defendant on the land itself — what is called in law, a pedis possessio — that actual possession of land consists in going upon the premises and remaining there and making some improvement thereon — that the fact of the defendant claiming the land as his own, although the deed from the Auditor to him was on record in the Recorder’s Office, and no person was in the occupation of the premises, was not sufficient; nor was it sufficient that the defendant, while he was thus claiming the premises, had once actually gone upon them and viewed them, unless he left behind upon the land itself, some visible marks of ownership — that the payment of taxes, and other facts proved in the case, did not constitute such a possession as would sustain the action, without actual occupation of the land, or some part of it, in the manner above stated. To all which opinion and charge of the Court, the plaintiff excepts.
    And as to the covenant of “ good right, full power, and lawful authority to sell and convey the premises,” also contained in the defendants’ deed, the Court further charged the jury, ’ that the plaintiff could not recover upon that covenant, ■ because it was a personal covenant, not running with the land; and could not, therefore, avail the plaintiff — the right to sue thereon belonging to Gorsuch alone,. and not passing by his deed to his assigns. To all which opinion and charge of the Court, the plaintiff also excepts, and prays the Court here to sign and seal this his bill of exceptions, and that the same may be made a part of the record in the cause, which is accordingly done this 5th day of December, in the year of our Lord, eighteen hundred and forty-six.”
    Upon this record, the plaintiff sued out his writ of error from the Supreme Court to the Common Pleas, praying the reversal of the original judgment, and assigning error in this:
    1. In the charge of the Court of Common Pleas to the jury, that the plaintiff was not entitled to recover upon the covenant of seizin, contained in the deed of the defendant, counted upon in the declaration.
    2. In the charge of the Court, that the plaintiff ought not to recover upon the covenant of right to convey, also contained in the said deed of the defendant.
    3. In that the motion for a new trial ought not to have been overruled; but the verdict ought to have been set aside and a new trial awarded.
    4. In that the jury were not warranted in law, in finding the issue of non est factum in favor of the defendant, there being no affidavit of truth, of the. plea made by the defendant.
    ' 5. In that the said judgment was given for the defendant, when by the laws of the land, it ought to have been given for the plaintiff.
    
      C. C. fy T. Corners, for Plain tiff, in Error,
    Contended as to both the covenants in the deed •— the covenants of seizin and of right to convey — that they run with the land, and pass to the assignee ; whether the grantor, at the time of the conveyance, be in the actual possession of the premises or not. In support of this position they cited the following authorities: Kingdom, v. Nottle, 1 Maulé & Selwin’s Rep. 355 and 4 do. 53; King v. Jones, 5 Taunt. Rep. 418; Martin v. Baker, 5 Blackford’s Rep. 232; 2 Sug. on Vend. 458; Lewis v. Ridge, Cro. Eliz. 863; Lucy v. Levington, 2 Levinz, 26; S. C. 1 Ventris, 175; Foot v. Burnet, 10 Ohio Rep. 332; McCrady’s Ex’r v. Brisbane, 1 Nott & McCord, 104; Slater v. Rawson, 6 Met. Rep. 439.
    They further claimed that the plaintiff was entitled to recover upon the implied covenant of warranty arising from the word “ give,” contained in the deed of the defendant; and to that point the following authorities were cited : Young v. Hargrave’s Adm’r, 7 Ohio Rep. 63, part 2 ; Coke Lit. 384, note by Hargrave, 332; Perkins, sect. 124; Shep. Touch. 181; Holden v. Taylor, Hobart, 10; Frost et al. v. Raymond, 2 Caine’s Rep. 188; Kent v. Welch, 7 Johns. Rep. 258; Grannis v. Clark, 8 Cowen’s Rep. 36; Platt on Covenants, 47.
    
      Goddard if Eastman, for Defendant in Error,
    Cited the following authorities: Mitchell v. Warner, 5 Conn. Rep. 497; Shep. Touch. 170; Beckford v. Page, 2 Mass. Rep. 460; Marston v. Hobbs, 2 Mass. 437; Bennett v. Irwin, 3 Johns. Rep. 365; Abbott v. Allen, 14 Johns. Rep. 253; Greenby v. Wilcocks, 2 Johns. Rep. 1; Backus v. McCoy, 3 Ohio Rep. 211; Kent v. Welch, 7 Johns. Rep. 260; Vanderkarr v. Vanderkarr, 11 Johns. Rep. 122.
   Reed J.

The determination of this case depends upon the nature of the covenants of seizin and of power to convey.

These covenants are synonymous, but not converse.

If a man be seized in fee, he has the power to sell, but he may have the power to sell and not be seized.

- When, therefore, the power to sell results from seizin, the two covenants are inseparable and of the same nature, and in such case if the one be real the other is real, and if the one be personal the other is personal. Hence, in such case, if an action would lie upon the one it would upon the other; but dam-upon the one would be satisfaction for both. But by declaring upon both in separate counts in a declaration, the one cannot be treated as real and the other as personal. The one cannot be considered personal, stopping with the first grantor, and the other real, running with the land. Therefore, when the Court, in their charge to the jury, treated the covenant of seizin as one which ought, under certain circumstances, run with the land, and the covenant of power to convey as always personal, they erred in respect to the unity of these- covenants. But in the present case both covenants were personal, and as the judgment was in conformity with the law, no injury was shstained by the plaintiff by such charge. These covenants then will be treated as identical in the further consideration of this case, as they possess the same legal qualities and are attended with the same legal results.

The covenant of seizin is in presentí or in futuro, and may be personal or real. If it never attach to the land it is instantly broken and personal, if it once attach, it is real, and runs with the land.

If the grantor be in actual possession, claiming adversely, the covenant of seizin runs with the land, and is not broken until the purchaser, or those claiming under him, are evicted by paramount title. But if the grantor is not in actual possession, and has not title, the covenant of seizin is instantly broken, and is personal. If under Such circumstances the grantee should see proper to convey, the purchaser from him could not sue upon the original covenant of seizin as with the first grantor, he is neither in privity of estate or contract; and the covenant, in such case, being personal, is a chose in action not transferable, but remains to the first grantee. This conclusion is not only-supported by numerous authorities, but is expressly laid down in the case of Backus v. McCoy, 3 O. Rep., to which we still adhere.

But it may be contended that in this case the original grantor was in possession. This is not true either in fact or law. The land has been recovered by title paramount, and thus there was no title in the original grantor, which could draw the possession, and in point of fact there never was any actual Thus there never having been any possession in law or fact, the covenant of seizin and power to convey were personal, and no one could sue upon their breach but the first grantee.

We do not find, therefore, that the jury were misdirected in any material point as to matter of law, or that the jury were not warranted in their verdict. The motion for a new trial was therefore properly overruled, and judgment entered upon the verdict.

Judgment affirmed.  