
    *Administrators of Backus v. R. McCoy.
    -Covenant of seizin m a deed, when the covenantor is in possession, claiming title, is a real covenant running with the land. But where the covenantor is not in possession, and the title is defective, it is broken as soon as made, and never attaches to the land, being in the nature of a personal covenant.
    Seizin in fact, that is, actual possession, at the time the covenant is made, is sufficient to sustain it.
    Consideration paid, and the interest upon it, the rule of damages in action upon covenant of seizin.
    This cause was adjourned for decision here by the Supreme Court, sitting in Franklin-county, and came up for decision upon ■the cause of action set out in the declaration.
    
      It was an action of covenant, and the breach alleged in the declaration was that of the covenant of seizin, without alleging any eviction, or specifying any damage sustained by the intestate, in consequence of the alleged defect of title.
    The defendant pleaded in bar that the premises in question were seized and sold in execution, on a judgment against the intestate in his lifetime, and conveyed by sheriff’s deed to the purchaser before any damage was sustained by the intestate. The replication averred that the alienation was made without the consent of the intestate and for a sum less than the fair value. The defendant demurred generally.
    Ewing, in support of the demurrer:
    I presume there will be no attempt to support the replication; that is clearly bad, and filed, as we suppose, merely to draw the demurrer from defendants.
    Nor is it important that we should support our plea, for the same point arises on an objection to the declaration, and is unembarrassed with incidental difficulties. On this, however, I would merely observe that if the assignee of the grantor, in a deed made to a man and his assigns, can receive the transfer of a covenant of seizin in such deed, then is the purchaser at sheriff’s sale, and not the original grantee, entitled to the benefit of this covenant. For, in cases of inherent covenants, the purchaser under a fi. fa. may take advantage of the covenants, as assigned, 5 Rep. 17; Shepherd’s Touchstone, 176; so also the heirs.
    By inherent covenants are meant those which regard the estate itself, and are not collateral to it, as assurances of title and possession, and these go to the heir or assignee without regard to the time when broken, unless the breach be so effectual as to dissolve the connection between the grantee and the estate, and put it out of his power to assign *or to pass anything by descent. If, then, this be an inherent covenant, and if the breach be not such as to arrest the estate and defeat the descendible quality, the heir, and not the administrator, should have brought this suit; and the declaration is bad, as it shows no right in the administrator to sue.
    If, in a deed, there be a covenant of warranty, and the grantee be evicted by title paramount and die, the right of action passes to the administrator, instead of descending to the heir, because the breach went to the whole estate, and the grantee had nothing left in the land which could pass to the heir. The covenant was-not only broken in law, but the full measure of damages had been-sustained in the lifetime of the grantor.
    But such is not the ease when there is a mere breach of a covenant of seizin, unaccompanied with an ouster or disturbance of possession. There may still be something, by virtue of this deed,, to descend to the heir, or pass to the assignee. For example: A. conveys to B., by deed, containing a covenant of seizin; B. enters,, and dies, seized, in fact, and afterward a perfect estate descends upon A. The heir of B. is .in of such estate by estoppel. And if a. case could bo put in which that, or some analogous principle of the common law, would not perfect the title of the heir or assignee, by passing to his benefit the after-acquired title of the grantor, equity would come to his aid'and give him the title. It is, therefore, a false position that when a covenant of seizin is broken, there is nothing remaining in the grantee but choice in action,, which can not pass to his heir or assignee. The reasoning which supports this position is artificial, and based on a misconception of the nature of the.covenant and the rights of the parties-under it.
    , But we admit that a grantee may, at his election (before an assignment, legal or conventional), bring his action for this breach, and if the title be wholly invalid recover his purchase money and interest. Such recovery would amount to a rescission of the conveyance, and the deed could never afterward be used by the grantee, or any person claiming under him, as in the case of a recovery on a covenant or warranty after eviction. If the covenantor afterward acquire title to the premises warranted, the grantee shall be estopped by ’this judgment on the breach of covenant, from setting up title by the same deed to the promises. 9 Mass. 34. This would be reasonable, and we take it to be law.
    But the doctrine contended,for by the plaintiff’s counsel, and that which appears to be settled in New York, is most iniquitous and unjust. Take the case of a deed, with a covenant of seizin only. The grantee, before a defect in his title is discovered, quitclaims and receives the value of the premises. Afterward, a defect is discovered in the title by the grantor; he was not seized of an indefeasible estate. The grantee recovers back his purchase money and retains the price which he has received for the land. Or, if the deed contain also a covenant of warranty, and the grantee die before eviction, the executor would recover back the purchase money and interest on his covenant of seizin, and the heir would keep the estate; or if evicted by title paramount, recover again the purchase money and interest. Surely a doctrine can not be supported as the common law of our country, where it leads to consequences like these.
    Such is not, nor has it ever been, the- common law of England. The covenant of seizin has there always been holden an inherent covenant, for “it doth in something concern the thing dismissed.” 5 Rep. 17. And it appears by a precedent in Coke’s Entries, 111, which is cited in 4 Johns. 74, that the heir might sustain his action for its breach.
    The case of Kingdon, executor, etc. v. Nottle, 1 Mau. & Selw. 355, is a leading case in the modern English Reports on the subject, and is precisely in point. It was there decided, on demurrer, that the executrix could not sustain her action for the breach of a covenant of seizin, made to her testator, without showing that some special damage occurred in his lifetime, in consequence of the breach. In Kingdon v. Nottle, 4 Mau. & Selw. 53, the heir brought his action and recovered on the same covenant. So that the doctrine may be considered as settled in England (see also Taunton, 418, in point,.and 2 Mau. & Selw. 408, which bears remotely on the case), and it is settled conformably to the principles of common law. By overlooking the rights which the heir or assignee may acquire to even an imperfect estate, and by forgettihg the important ^principle, that whenever any interest in land (however small) passes by the deed, it draws with it all those covenants which “ in anything concern the realty,” courts have, in some instances, drawn the most mischievous consequences, from that which at common law is a sound and salutary principle.
    In New York these consequences have been pushed ad absurdum; this single case will suffice as a specimen. A. conveyed to B., with covenant of seizin ; afterward B. reconveyed in fee to A. A defect existing in the original title of A., B. brought his action on the covenant of seizin, and recovered back his purchase money and interest.
    The doctrine in Massachusetts, though in our opinion a departure from the common law, is more reasonable and just, and is, on the wholo, a system not illy adapted to the exigencies of the country.
    There, the covenant of seizin, if broken at ail, is held to be a chose in action, which can not be assigned, or descend to the heir. But seizin, in fact, is holden sufficient to support this covenant, and its .attendant, that the grantor has good right to convey. 2 Mass. 433, 455. These covenants in Massachusetts are effective in one case, when the warranty is not. If the.purchaser can not enter, he can not be evicted, and the warranty will not serve him, but the covenant of seizin will.
    Wilcox and J. R. Swan, for plaintiff:
    Two questions are presented to the court:
    1. Is this action properly brought in the name of the administrator? A covenant “ that the grantor is seized, or that he has good right and lawful authority to convey, is broken as soon as it is made, if, in truth, the grantor had no estate in the premises.” 'Shepherd’s Touchstone, 170; 1 Ohio, 389.
    Covenant of seizin, after breach, is a chose in action, and can not be assigned. 2 Johns. 1; 2 Mass. 433, 455.
    Covenant of seizin does not run with the land, and the heir of the grantee can not maintain an action, but the administrator oi executor only. 4 Johns. 72, and eases cited.
    Bennet v. Irwin, 3 Johns. 359. The action in this case was brought by the administrator of the grantee, and he recovered without objection.
    *It is true that in one or two modern English cases a rule somewhat different has been established; and where the covenant of seizin has been broken, in the lifetime of the ancestor, the breach has been considered a continuing breach, so as to entitle the heir to his action.' 4 Mau. & Selw. 53.
    The policy of the English government requires a broad distinction to be kept up between the landed estates of the kingdom and personal property. Hence, land in the hands of the heir, is not liable for the simple contract debts of the ancestor. But in our country, where real estate, as well as personal, is' made assets in the hands of the administrator, policy requires that the administrator should be empowered to reduce into his own possession all the rights, credits, and choses in action belonging to the estate. A different rule, particularly in cases of insolvent estates, would give rise to great difficulties, and as the counsel for the defendant allege, in relation to certain decisions of the Supreme Court of New York, the consequences might be “pushed ad absurdum.”
    
    Is a sale of the premises upon fi.fa., as alleged in the plea, a bar to this action ?
    
      The plea admits that the defendant, at the time of the deed executed, had not a good title to the premises. Samuel Barr, the purchaser, therefore, took nothing but the sheriff’s deed. Roades and Symmes.
    3 Johns. 359. Irwin sold the premises to Yance for one thousand four hundred and eight dollars, with a covenant of seizin. Afterward, Yance quitclaimed to Irwin, for one thousand dollars. Then the title failed. The administrator of Yance brought an action on the covenant of seizin, and recovered the original consideration money and interest. This is the “ad absurdum” case decided by Kent, Chief Justice, Thompson, Spencer, Yan Ness, and Yates, Justices.
    So in Massachusetts. The grantee, after a quitclaim to a third person, sustained an action against the grantor, on the covenant of power and right to convey, while his releasee continued in the undisturbed possession. 2 Mass. 455.
    In an action on the covenant of seizin, it is not necessary either to allege or prove eviction or a disturbance of the possession. Bradshaw’s case, 9 Co.; Cro. Jas. 304; 2 Saund. *181, note a; 2 Johns. 1; 7 Johns. 376; 2 Mass. 433; 4 Dallas, 436; 4 Cranch, 421; 1 Bay, 256, 325; 3 Call, 326, quoted; 1 Manford, 500; 14 Johns. 248.
    To obviate the force of these authorities, it is alleged, on the part of the defendant, that in Massachusetts a possession, in fact7 .without right, is sufficient to satisfy the covenants of seizin, and of good right and lawful authority to sell and convey in fee simple. This question is not presented upon the record, but should the court take it into consideration, the plaintiff will refer to the following cases: Shep. Touch. 170, cited above. A covenant “ that the grantor is seized in fee simple, or that he has good right and lawful authority to convey in foe,” are synonymous, and go to the title. Cruise Dig., tit. 32, chap. 5, sec. 37-39; S. P., Cro. Jas. 304.
    “ Seizin in fee,” and “ seizin of an indefeasible estate in fee,” are considered one and the same. Cro. Jas. 370.
    Covenant of seizin goes to the title. 4 Johns. 17; 11 Johns. 248; 4 Dallas, 436.
    A covenant “ that the grantor is lawfully seized in fee,” goes to-the title. 1 Bay, 265, 266, 326.
    4 Cranch, 421. The covenants in this case are precisely the same as in the case now before the court. A question of pleading was presented, and the court gave no opinion as to the evidence necessary to show a breach.
    Possession in the grantor at the time of the execution of a deed is not necessary in the State of Ohio to pass a valid title. The title passes, even if there be an adverse possession. If this court adopt the Massachusetts system, they must permit a grantee to recover on his covenant of seizin, although he has a good title, provided the grantor had not an actual possession by right or by wrong at the time of the deed executed; a doctrine which has a strong tendency “ad absurdum.”
    
    It can not be pretended that the sale of a sheriff, upon a judgment rendered in invitum, divested Backus of any rights which would have remained in him, if he had, by deed, conveyed the premises to Samuel Barr; and the authorities cited, show, that notwithstanding such a deed, the plaintiff might sustain the present action. What Backus may have done with the property, is none of McCoy’s business. All *that McCoy has to do, is to show that he had, in truth, such a title as he covenanted with Backus that he had. And if he had not, the law says he shall refund to Backus the consideration money and interest; the contract between them shall be disaffirmed; the parties shall be put in statu quo, and McCoy may resort to his grantor for his indemnity. Suppose Backus, after his deed from McCoy, had purchased in the outstanding title, for twenty-five cents, or twenty-five thousand dollars; could this fact in any way affect the previous covenants of McCoy ? Title by estoppel, rebutter, or inurement, has nothing to do with the case. The only question is this: Had McCoy, at the time he sold the property, and pocketed eleven thousand dollars of Backus’ money, such a title to the property as he undertook to convey ? Was he then “ lawfully seized in fee simple, and had he good right and lawful authority to sell and convey in fee simple?” If not, his covenants were broken, and the law has fixed the rule of' damages; nor can the breach be cured, nor the damages mitigated by any subsequent patchwork of estoppel, rebutter, or inurement. Nor is there any legal hardship in the case. The rendition o‘f a judgment, in this case, dis-affirms the contract, and McCoy becomes reinvested with all the rights he conveyed to Backus. 9 Mass. 34. The amount of the defendant’s argument is this: “In 1818, I received from Backus ■eleven thousand dollars, which I have vested very profitably in ■mercantile stock. It is true I conveyed Backus no title, but he has shifted to get off the property, for three thousand dollars, as ■much as it was worth, anyhow, and I dislike very much to refund this eleven thousand dollars, with interest; indeed, it is extremely inconvenient, and if compelled to do so, I shall really think the ■law is ‘pushed ad absurdum.’”
    
    Extreme cases have been supposed on the part of defendant’s ■counsel, without any particular bearing on the present case. Whether any of the covenants used in the State of Ohio can be considered as real covenants, running with the land, may perhaps admit of great doubt. The adoption of the warranty in the United States, ■which in England has fallen into disuse, since the statute of uses, ■has created much confusion upon the subject of covenants. By holding all covenants to be personal, confined to grantor and grantee, *much inconvenience may be remedied. But plaintiff’s counsel do not understand that this matter is now before the ■court.
   Opinion of the court, by

Judge Sherman:

This action being brought to recover damages for a breach of the covenant of seizin, in a deed from the defendant, McCoy, to the plaintiff’s intestate, the counsel have not confined themselves to the question necessarily growing out of the demurrer, but have argued the general questions of when, under what circumstances, and' to what extent the grantor, in a deed, is liable under the •covenant of seizin. This covenant is one of very general use in conveyances of land, in this state, and it is important that all persons should understand its nature; the liability of the grantor •thereon, and the security the grantee thereby acquires. This being ■the first time an action founded on this covenant alone, unconnected with covenants of the grantor’s right to sell, for quiet enjoyment, or against incumbrances, has come before the whole court for .adjudication, we have not confined ourselves to the'determination ■of those questions alone, arising from the demurrer.

The covenant of seizin is made for the benefit of the grantee, in respect of the land. It is not understood as a contract in which •the immediate parties are alone interested, but as intended for the security of all subsequent grantees. It is usually extended, in terms, to heirs and assigns, as well as executors.

If it can justly be considered as a real covenant, it will be* annexed to, and run with the land, and either go to the assignee, or descend to the heir, so long as the estate, such as it may be, to which the covenant is annexed, is in possession of the covenantee, or those claiming under him. But if the covenant of seizinis strictly a personal covenant, as it respects the course in which it shall go to the respresentatives of the covenantee, and must .be' broken, if at all, the moment the deed is executed, it can neither go to the assignee nor descend to the heir. The right of the-grantee in such case would be a mere right of action for the recovery of damages, and upon his death would go to his personal representatives.

*The English authorities, though not numerous on the eovenant of seizin, show, that so long as the grantee, or those claiming under him, remain in possession of the land, the covenant of seizin will attend, and run with the land, and that the heir or grantee, if evicted by paramount title, can recover upon this covenant. In Coke’s Entries, 111, cited in 4 Johns. 74, a case is reported, in which it was held that the heir might sustain ah action on the covenant of seizin, he having been evicted after the death of his ancestor, who entered in his lifetime, and-died seized. In Lucy v. Livingston, 1 Vent. 175; S. T., 2 Lev. 26, which was an action by the executors, on the covenant, for quiet enjoyment, the breach assigned was that the plaintiff’s testator was-evicted in his lifetime. It was held by the court, “ that the eviction being to the testator, he can not have an heir, or assignee of his land, and so the damages belong to the executors, for they represent the person of the testator.” In the recent case of Kingdon, executor, v. Nottle, 1 Mau. & Selw. 355, the court held that the-covenant of seizin was a real Covenant, running with the land, and would pass with the estate, to the assignee, or devolve upon the heir; and that the executor could not sustain an action, without showing an eviction, or some special damage sustained by the-testator. In Kingdon v. Nottle, 4 Mau. & Selw. 53, tho deviseebrought his action on the same covenant, and recovered; the-court repeating the same doctrine that the covenant of seizin is-a real covenant, and runs with the land. In King v. Jones et al., 5 Term, 418, the grantor covenanted that he would make further assurance upon request of the purchaser. The ancestor of the-plaintiff requested further assurance, which was refused; when he-died, and his heir, the plaintiff, was afterward evicted, by title paramount, and it was held, that the heir could sustain an action; that it was a covenant running with land, and the ultimate damage not being sustained, in the lifetime of the ancestor, the covenant with the land devolved upon the heir. The decision was affirmed, on error, in the court of the King’s Bench. 4 Mau. & Selw. 188. It seems to be well settled, by these recent decisions, that when the heir or assignee, acquires any interest in the land, however small, by even an imperfect or defective title, he shall be entitled to the benefit *of all those covenants that concern the realty, and where he has been evicted, by paramount title, he is the party damnified, by the non-performance of the grantor’s covenants, and, for such breach, may sustain an action. This seems to be reasonable in itself, as well as in accordance with the terms of the covenant. By considering the covenant of seizin, as a real covenant, attendant upon the inheritance, it will form a part of every grantee’s security, and make that, which otherwise must be either a dead letter, or a means of injustice, a most useful and beneficial covenant. A dead letter, when an intermediate conveyance has taken place, between the making of the covenant and the discovery of the defect of title, and the covenantee refuses to bring suit. A means of injustice, when, after the covenantee has sold and conveyed without covenants, he brings, and sustains an action, on the ground that the covenant was broken, the moment it was entered into, and could not thereafter be assigned. When lands are granted in fee, by such a conveyance as will pass a fee, and the grantor covenants that he is seized in fee, we can perceive no objection, legal or equitable, to this covenant, as well ns the covenant of warranty, passing with the land, so long as the purchaser, and the successive grantees under him, remain in the undisturbed possession and enjoyment of the land.

We are aware that the Supreme Court of New York have taken somewhat of a different view of this covenant; but highly' as we respect the decisions of that court, and much as we regret now to differ from them in opinion, we feel bound to express the result of our own judgments in every case submitted to our consideration.

The Supreme Court of Massachusetts, 2 Mass. 433, have held, that a seizin, in fact, of the grantor, at the time the deed was executed, was a sufficient compliance with the covenant of seizin in the deed. This determination appears to us, to be founded on sound and correct principles. If the grantor is in the exclusive possession of the land, at the time of the conveyance, claiming a fee adverse to the owner, although he was in by his own disseizin, his covenant of seizin is not broken, until the purchaser, or those claiming under him, are evicted, by title paramount. He has a seizin in deed, as contradistinguished from a seizin in law, sufficient- *to protect him from liability, under his covenant, so long as those claiming under him may continue so seized. Actual disseizin, or the actual adverse possession of the lands of another, is the commencement of a right, which, by lapse of time, may ripen into a perfect title in the disseizor Or possessor; and, during the time that the grantee of such disseizor remains in the undisturbed possession of the lands, by reason of the conveyance of such disseizor, he can not maintain an action upon the covenant of seizin. «No breach of such covenant will have taken place, if the grantor was seized in deed at the time of the conveyance, however that seizin may hav.e been acquired. If the grantor, at the time of executing this conveyance, was in possession of the land, either as disseizor, or under color of title, it can not be said that he was not seized of an-estate in the premises. When the grantor, is not seized, either in deed or in law, at the time of conveying, the covenant of seizin must be broken, at the moment of •executing the deed containing it; and becomes thereby a mere chose in action, and no longer annexed to, or passing with the land. This is the case, when the grounds are vacant, and the grantee has no title. But when- the grantor is, at the time of the conveyance, in possession, under color of title, claiming a fee, the covenant of seizin is a real covenant annexed to the land, and passes with it to the heir or assignee, until he who has the paramount title may assert it, and evict the person in possession, when it becomes a mere claim to damages, to be enforced by him who has been evicted, and, like- any other, when in action, no longer assignable at common law.

The rule of damages, under a covenant of seizin, where a breach has been shown, is the consideration money and interest. It is the value of the land, as ascertained by the parties, and the money comes in lieu of the land lost by the non-performance of the covenant. Damages can not be awarded, either for the increased value of the land, or the improvements made. In the latter, the legislature have provided an ample remedy, in favor of the occupying claimant; and awarding the former, would, in many cases, inflict a severe penalty on grantors, who conveyed, in good faith, laving perfect confidence in their title to the lands they conveyed. If the grantor has practiced any fraud in *the sale, the grantee may have his remedy, by an action on the case, in the nature of a writ of deceit. It is not unfrequently the case, that in conveying large tracts of land, especially in the Virginia military district, the grantor is seized, in the manner he covenants, of part only of the lands sold, and by means of interfering claims, defective entries, or other causes, he has no valid title to the residue. The measure of damages in such a case is the same proportion of the consideration money and interest, as the value of the lands of which the grantor was not seized is to the value of the whole; the consideration money being considered the value of the whole premises.

The pleadings in this case having terminated in a demurrer to the plaintiffs replication, has made it necessary to look into those pleadings, with reference to the principles governing the covenant of seizin, and the breaches assigned.

The replication is clearly bad, and is not attempted to be sup* ported. The plea is equally bad; it neither denies nor confesses, and avoids the want of seizin of the defendant, of the lands, at the-time of the conveyance, the breach assigned in the declaration ; but avers that before any actual damages had been sustained, the lands were sold and conveyed by the sheriff, upon execution, as-the property of Backus, the intestate. The declaration avers, generally, a want of seizin by McCoy, and this averment being unanswered -by the plea, it must be taken that McCoy, at the time of executing the conveyance, was neither seized in law nor deed of the premises conveyed, and of course the covenant was broken the moment it was entered into, and could not thereafter be assigned-by the sheriffs deed, nor descend to the heirs of Backus, but must, with all other dioses in action, pass to the personal representatives. The plea and replication, both being insufficient, there must- be-judgment for the plaintiff.  