
    *The following cause was decided December Term, 1827, and by mistake omitted to be reported:
    James Robinson v. William Neil.
    Declaration in covenant of seizin, under the statute concerning covenants real, is bad, unless it aver eviction.
    This was an action of covenant, adjourned from the Supreme Court of Franklin county.
    The declaration contained two counts. The first set forth an indenture, made October 7,1822, between the defendant of the one part, and the plaintiff of the other part, by which the defendant conveyed to the plaintiff, for the consideration of five thousand dollars, a certain in-lot in the town of Columbus; after reciting the indenture the plaintiff further stated, “that in and by the said indenture it was further witnessed, that the said William did covenant and promise, to and with the said James, his heirs and assigns, that the said promises thereby conveyed were free and clear of all incumbrances, and that he, the said William, would warrant and truly defend the same unto the said James, and unto his heirs and assigns forever, against all claims whatsoever, which said last-mentioned covenant of the said William, contained in the said indenture, by virtue of the statute of the State of Ohio, entitled an act declaring the law in certain cases of actions upon covenants real, and for other purposes, passed January 2,1815, has the force, effect, and operation of a covenant, that he, the said William, was at the time of the making said indenture seized of a good and indefeasible estate in fee simple, in the aforegranted premises. And the said James in fact saith, that the said William was not at the time of the making said indenture, nor hath he been at any time since, seized of a good and indefeasible estate in fee simple, in the aforegranted premises, but on the contrary thereof, certain other persons, at the time of the making the said indenture, 'and continually from thence until the present time, had and still have, lawful right and title to the said premises, contrary to the form and effect of the said indenture, and of the said last-mentioned covenant therein contained, operating as aforesaid by virtue of the statute aforesaid.” ^The second count was the common count upon a covenant of seizin. The defendant craved oyer of the indenture, and made it part of the record. The indenture contained, in fact, no covenant of seizin, nor other covenant except those specified in the first count, to wit: the covenant against incumbrances, and the common covenant of general warranty.
    The defendant pleaded: 1. Non est factum; 2. That the premises were free and clear of all incumbrances, and that defendant had well and truly warranted and defended, etc.;. 3. That defendant was seized of an indefeasible estate in fee, etc.; 4. That the plaintiff, on October 7,1822 (the same day on which the deed in the declaration mentioned was executed), in consideration of five thousand dollars, sold and conveyed to the defendant the same in-lot, by deed, with full covenants of seizin, general warranty, etc.; 5. That on the same 7th October, and before the plaintiff had sustained any damages, the plaintiff, by deed of mortgage, to secure the payment of three thousand dollars, sold and conveyed said in-lot to the defendant, with full covenants of seizin, general warranty, etc.; 6. That a scire facias was issued on said mortgage, a judgment had, and the premised were sold, before this action was brought, to the defendant, for a sum not sufficient to satisfy the judgment, etc.; 7. In the seventh plea, the defendant set forth the mortgage mentioned in the sixth plea, and averred-that the condition had not been complied with, and that the mortgage money was yet unpaid, etc., whereby the estate became absolute at law, etc.
    The plaintiff took issue upon the first and third pleas, and demurred generally to the second, fourth, fifth, sixth, and seventh.
    Wilcox and Hammond, for defendant,
    insisted that the declaration was bad: 1. Because the statute referred to in the declaration, is wholly void for its uncertainty; 2. If the statute means anything it is a declaratory act, reviving the old remedy of warrantia charted — which could only be sustained, before eviction, by the tenant of the freehold, which tenancy ought to be set forth in the declaration.
    Ewing, for the plaintiff, contra.
   *By the Court :

The doctrine settled at this term, in the case of Adm’rs of Bacchus v. McCoy, decides this case. Judgment must be for the defendant.  