
    * Asa Bearce versus Simon Jackson, Administrator of Alexander Shepard.
    A plan of land taken ex parte cannot be used on a trial but as chalk.
    One in possession of land, claiming to hold it in fee simple, is sufficiently seised to enable him to convey ; and, if he warrant the land, no action lies against him on his covenant of warranty, until an eviction of the grantee, or his assigns, by a paramount note.
    Covenant broken, on a deed of the defendant’s intestate, conveying certain lands, described therein, to the plaintiff in fee, and covenanting that the grantor was lawfully seised in fee, and that he would warrant and defend the granted premises to the grantee, &c.
    At the trial of this cause, before Thatcher, J., at the last October term in this county, the counsel for the plaintiff offered in evidence a plan of the land described in the declaration, accompanied with the oath of the surveyor who took it, attesting its accuracy. The judge refused to admit the plan, because a plan, including the lands in question, had been taken by order of Court, and with the consent of the parties in this action, which was proved to be accurate; and because the plaintiff’s counsel, when he offered the first-mentioned plan, acknowledged that it was not of itself legal evidence.
    It appearing in evidence that Shepard, the defendant’s intestate, entered on the land in question about the year 1779, claiming to hold the same under a grant from the commonwealth, and that the plaintiff has quietly possessed the same lands from the date of Shepard’s deed to him, the judge directed the jury that, if they believed the said evidence, it was sufficient in law to support the covenant of seism made by Shepard, and that neither that covenant, nor the covenant to warrant and defend, were broken, as no eviction of the plaintiff had been proved, and the jury accordingly rendered their verdict for the defendant.
    The plaintiff’s counsel filed exceptions to the said opinions of the judge, upon which the cause stood continued to this term, upon the plaintiff’s motion for a new trial for the misdirection of the judge.
    And now, Whitman, of counsel for the plaintiff,
    contended that, if one conveys land of which he is not lawfully seised, and he covenants that he is so seised, the covenant is broken the instant it is made, and the grantee may have his action [*409 ] * presently, and need not wait for an actual eviction to take place, by which time the circumstances of the grantor may make the remedy upon the covenant of no value. 
      Whitman thought that the plan offered at the trial, which contained lines not in that taken by order of Court, when verified by the oath of the surveyor, should have been suffered to be shown to the jury. But he did not much press this exception.
    
      Mellen, for the defendant,
    observed that the case did not show that the plan offered and refused contained any lines not laid down on the other. But this exception, he thought, could not have much weight, since the plaintiff’s counsel had acknowledged at the trial that the plan was not legal evidence.
    As to the principal exception, Mellen insisted that, without showing an eviction, the plaintiff could not maintain his action. Shepard did not covenant that he was seised by an indefeasible title, but only that he was seised. The case finds this to be true. And this observation is a sufficient answer to the dictum from Sheppard’s Touchstone. If, in fact, the grantor had not been so seised as to entitle him to make this covenant, the defendant, it is acknowledged, would have no defence in this action. But the seisin was sufficient to support the covenant when it was made, and it will be early enough for the plaintiff to bring his action, when he shall be dis turbed in his possession by one showing a title paramount to that of his grantor.
    
      
      
        Shep. Touchstone, 170.— Cro. Jac. 369. — Dyer, 303.
    
   The opinion of the Court was afterwards delivered by

Parsons, C. J.

We are satisfied that the judge was correct in rejecting the plan. Anciently, the land was not described in the declaration; but the plaintiff was bound to give the defendant a view. The practice here has been to describe the land in the declaration, and, if necessary, to send the jury to view it. But to supersede the necessity of either of those views, a very convenient practice has arisen, — to have a plan taken under a rule of the Court by a surveyor, appointed by the Court, or agreed upon by the parties, who is sworn to the faithful execution of the trust, as are *a!so the chain-bearers. And his duty is to give [ *410 ] notice to the parties, and to mark on the plan any monuments or lines, which either of the parties shall request. A plan taken ex parte can never be used but as chalk, unless by consent.

As to the other exception, it is very clear that the defendant’s intestate, being in possession, claiming a fee simple in the land, was able to convey. So the covenant of seisin was not broken. And, to entitle the plaintiff to recover on the covenant of warranty, he must show an actual eviction, or ouster, by a paramount title.

Judgment according to verdict.

Memorandum. — May term, 1806, at Portland, Ezekiel Whitman, Esquire, and June term, 1806, at Wiscasset, James D. Hopkins, Esquire, were appointed examiners of candidates for admission as counsellors and attorneys within the county of Cumberland. 
      
      
        а) [In the English practice, a view is not granted as a matter of course. Roscoe's Real. Actions, 247—256. — Ed.]
     
      
      б) [Vide Prescott vs. Trueman, post, 627. — Twambly vs. Henley, post, 441. — Ed.]
     