
    Sophia L. Trask versus Edward Wilder.
    A held a mortgage from B of a lot of, land. C, claiming under B, gave a deed of the same land to D, with a covenant against all incumbrances, and D afterwards conveyed the premises to A, with a like covenant. A cannot, after releasing D, maintain an action against 0 for breach of covenant, on the ground that he has been evicted by an older and better title.
    The holder of a mortgage of a lot of land, who subsequently takes a warranty deed of the same lot from one who has, through intervening conveyance, the mortgager’s right of redemption, will not, in an action against one of the intermediate grantors for breach of covenant of warranty, be sustained in pleading that he has been evicted by the mortgage title which he holds himself, nor in a claim for damages on account of the incumbrance.
    
      This was an action of covenant broken.
    Charles O. Butman, being seized of the premises, conveyed them to the plaintiff in mortgage, May 6, 1851.
    April 6, 1855, the defendant, having come into possession of the premises through mesne conveyances, conveyed them to Hall Bagley, with covenants against incumbrances and of general warranty in the usual form.
    Dec. 13, 1856, Bagley, by deed containing similar covenants, conveyed the premises to the plaintiff.
    The plaintiff commenced, this 'action, Sept. 10, 1.861, assigning Butman’s mortgage as a' breach of the defendant’s covenants.
    At November term, 1861, the plaintiff released Bagley from his covenants by a release iiled.in Court.
    At the trial at JSTisi Prius, the defendant offered to prove that Bagley bought the land for the plaintiff; that the plaintiff was present, and did not mention the mortgage; and that the defendant was ignorant of the existence of the mortgage. To this the plaintiff objected.
    The case was submitted to the full Court, on report of the evidence by Appleton, C. J.
    
      A. W. Paine, for the plaintiff,
    argued that the owner of property is bound to know his own title, and, if he sells, it is for a price apportioned to its full value. If there is an •incumbrance, it reduces the value. Suppose the incumbrance had been equal to the full value, and yet the seller obtains the full value by his sale. Has the purchaser no remedy ?
    The important question is, whether the plaintiff lias been, evicted by an older and better title. The eviction which the law requires is technical only; there need be jio actual turning out of possession, but any state of facts, showing actual loss by the incumbrance, is an eviction in law. Cole v. Lee, 30 Maine, 392 ; Btowell v. Bennett, 34 Maine, 422 ; Whitney v. Dinsmore, 6 Cush., 124j Baslabrooh v. /Smith, 6 Gray, 572; Loomis v. Bedel, 11 N. H., 74.
    The estate conveyed is defeated to the extent of the incumbrance. If Bagley had conveyed the land as he did to the plaintiff, and the mortgage had been held by a third person, it would not be denied that the plaintiff was evicted. But the plaintiff’s loss or damage is the same as though a third person held the mortgage instead of herself. In either case the plaintiff has bought what purports to be an unincumbered title, and paid its value as the deed presumes. But the title proves to be incumbei’ed, and is of so much less value as the amount of the incumbrance proves to be.
    The statute (R. S., c. 82, § 16) provides that "the assignee of a grantee” " may maintain an action on covenant,” " and recover such damages as the first grantee might upon eviction.” It follows, that the plaintiff in this action has the same rights 'that Bagley would have • had if, when he held the title, the mortgage still outstanding, he had sued his grantor. There can be no doubt that Bagley could have sued and recovered nominal damages befoi’e paying the mortgage, and, after having paid it, full damages. By the statute, the plaintiff has the same right that Bagley would have had. This enables her to sue and maintain this action.
    
      F. A. Wilson, for the defendant.
   The opinion of the Court was drawn up by

Cutting, J.

This action is founded on that clause in the defendant’s deed which warrants against all incumbrances.

It appears that one Charles O. Butman, on August 6, 1851, being seized of the premises described in the deed, conveyed the same to the. plaintiff, to be held by her in mortgage, — that, on April 6, 1855, the defendant, claiming under the same grantor through mesne conveyances, conveyed the same premises to one Hall Bagley by a deed containing a similar covenant, and in like manner Bagley conveyed to the plaintiff, on December 13, 1856, — that, on September 10, 1861, this suit was • instituted, alleging the mortgage to be a breach of the covenant, and that subsequently, at the October term of this Court, to which the writ was made returnable, the plaintiff duly released Bag-lay from the covenant contained in his deed to her. It appears that such release was executed under B. S., c. 82, §16, which provides that — "The assignee of a grantee, or his executor or administrator, after eviction by an older and better title, may maintain an potion on a covenant of seizin or freedom from incumbrance, contained in absolute deeds of the premises between the parties, and recover such damages as the first .grantee might upon eviction, upon filing, at the first term in Court for the use of his grantor, a release of the covenants of his deed and of all causes of action thereon.”

The foregoing provision is in derogation of the common law, and must receive a strict construction, although manifestly intended to avoid circuity of action. Consequently the question arises whether the plaintiff, as the assignee of Hall Bagley, has proved " an eviction by an older and better title.”

It is difficult to perceive how she could have boon so evicted, when it is apparent that hers was the oldest, if not the better title. The question is not whether Hall Bagley was in fact evicted by the plaintiff, for of that there is no evidence, but whether she, as his assignee, had been evicted by any one having a title better and older than her own. She could not evict herself, and Hall Bagley could not evict her so long as she possessed the older title, and there can be no fiction of law opposed to impossibilities. Upon such a fiction the plaintiff x-elies.

The case of Whitney v. Dinsmore, 6 Cush., 124, cited by the plaintiff’s counsel, seems to support the view we take ; for the Court say — "To prove a bx-each, it must appear that the plaixxtiff has beeix lawfully evicted or oxxsted, or has beeix so disturbed in his title and possession, by a paxty having a paramount title, as would be equivalent to an actual eviction or ouster.” In that case, the plaiixtiff had purchased in a paramouxxt title, or, in the language of our statute, an older and better title, which was aix incumbrance created by an attachment prior to the deed from the defendant. And so in Cole v. Lee, 30 Maine, 392, Stowell v. Bennett, 34 Maine, 422, and Loomis v. Bedell, 11 N. H., 74.

Had Hall Bagley been ejected by the plaintiff, or, to avoid such a contingency, had discharged her mortgage, he would have been in a situation to sustain an action against his warrantor, either immediate or remote, by pursuing in the steps of the statute; and in such case the authorities cited by the .plaintiff’s counsel would have been pertinent. But here the plaintiff, after having received her deed from Bagley, was in possession under her prior mortgage and Bagley’s subsequent deed, and she can invoke no fiction of law by which the servient shall overcome the dominant title. While, therefore, the law justly protects the one party by the exclusion of the evidence offered to show for what purpose Bagley conveyed to the plaintiff, the law likewise shields the other party from the effect of a fictitious eviction, and by both rules of éxelusion in this case, doubtless, justice is administered. ' Plaintiff nonsuit.

Appleton, C. J», Davis, Kent and Walton, JJ., con-  