
    Joshua Sprague versus Abel Baker.
    Land, which had been previously mortgaged, was conveyed by the mortgagor with a covenant for quiet enjoyment. After entry by the grantee, the mortgagee demanded of him payment of the money due on the mortgage, threatening to sue for possession under the mortgage, unless the money should be paid.' The grantee thereupon purchased the rights of the mortgagee, paying the amount due, and receiving a release. This was held to be a sufficient breach of the covenant to entitle the grantee to his action.
    This was an action of covenant broken, upon a deed conveying lands, and containing the usual covenants against encumbrances, of warranty, &c., and was submitted to the opinion of the Court upon the following facts agreed by the parties.
    
      On the 21st of November, 1806, one Cornelius White, being indebted to William Morse and Nathan Batchelder in the sum of 500 dollars, and being at the same time in possession of the lands described in the plaintiff’s declaration, in right of his wife Elizabeth, joins his said wife in a deed of mortgage of those lands of that date to the said Morse and Batchelder, for the payment of the said sum by five annual instalments, of 100 dollars each, to commence on the 10th of November, 1807, the interest to be paid annually ; and they gave their joint promissory notes to the same effect.
    After executing this mortgage deed, White and his wife conveyed the same premises to Baker, the defendant; who afterwards, by his deed of the 29th of November, 1807, conveyed the same to one Daniel Hitchings, with warranty, and with the usual covenants of seisin, of good right to convey, and against encumbrances. Hitchings, by his deed of the 4th of March, 1808, conveyed the same to Sprague, the now plaintiff, with the usual covenants above men^ tioned; under which conveyance Sprague entered and still holds possession. After his entry, the mortgagees under White and his wife demanded payment from him of the two last instalments of the mortgage money, and the arrears of interest, then due and outstanding, threatening to sue for possession of the premises [ * 587 ] under * the mortgage, unless the notes should be paid by Sprague; who, accordingly, to save the expense of a suit, purchased the right of the mortgagees, paying the amount due by the mortgage, and took from them the promissory notes, and a deed of quitclaim, dated the 10th of February, 1812.
    On the 9th of March, 1813, Hitchings, in consideration of 20 dollars paid him by Baker, released, acquitted, and discharged him of and from all covenants relative to encumbrances, &c., in his deed to Hitchings above mentioned.
    If the Court should be of opinion that the action could be supported upon the foregoing facts, on any of the covenants in the defendant’s deed to Hitchings, judgment was to be rendered for the plaintiff, for the money so paid by him, with interest and costs, otherwise he was to become nonsuit.
    
      Orne, for the plaintiff.
    
      S. D. Parker, for the defendant.
    In the case of Bickford vs. Page 
      , it was adjudged that a covenant once broken becomes a mere chose in action, not assignable. Of the covenants in our usual conveyances of land, some are in the present tenáe, some in the future. The first kind are broken the moment they are made, if the fact, concerning which they are made, is not truly stated The covenant, "that the premises are free of encumbrances,” is in the present tense, and if encumbrances exist at the time, it is instantly broken, becomes a mere chose in action, and is not assignable.
    In the case at bar, there has been no eviction, no ouster. The payment was voluntary, without notice to any of the prior warrantors, or any request to them to remove the encumbrance, or defend against it. It was a payment without suit or compulsion ; and the plaintiff had suffered no damage. If the payment was premature, it was the plaintiff’s fault; and he ought to bear the loss, if any has accrued.
    This action is unprecedented in this country. It was truly stated by the counsel, in the case before referred to, * that no case can be found, of an action- upon a per- [ * 588 ] sonal covenant in the present tense, in the name of an assignee. The covenants, which run with the land, are in the future tense; and cannot usually be broken, until there be an ouster or eviction; which has never occurred in the case at bar.
    The personal covenants in the present tense, in our common conveyances, are intended for the benefit of the grantees, parties to the deed; and the covenant of warranty is the only one intended to run with the land, and to give a remedy to the subsequent assignees. The plaintiff in the case at bar ought, therefore, to have permitted himself to be sued or ousted, and then have brought his action against his grantor; and in that mode to have obtained his remedy.
    If such has been the uniform construction of the covenants in our common deeds with warranty, in this country, it is believed that the Court will not adopt another rule, without weighty reasons.
    
      
      
        2 Mass. Rep. 460
    
   Wilde, J.,

delivered the opinion of the Court.

The plaintiff claims as assignee upon a conveyance of lands made by the defendant to one Hitchings, with the usual covenants; and it is agreed by the parties, that judgment shall be rendered for the plaintiff, if, on the facts stated, he is entitled to recover on any one of the covenants in the original deed. The counsel for the plaintiff relies upon a breach of two of these covenants, namely, that against encumbrances, and the one for quiet enjoyment or general warranty.

As to the first, the objection is, not that the covenant has been kept, but that it was broken previous to the assignment to the plaintiff; and being a chose in action, it was not assignable by the common law.

The ground of this objection has been frequently held valid by this Court.—2 Mass. Rep. 455, Bickford vs. Page.—12 Mass. Rep. 304, Wyman vs. Ballard. The same point was determined in the case of Lewis vs. Ridge, Cro. Eliz. 863, and by a [ * 589 ] majority of the court in the case of Greenly * & Al. vs. Wilcocks, 2 Johns. 1. A similar doctrine is laid down by Comyns, Dig. Covenant, B. 3. It, however, depends upon a rule of the common law, for the avoidance of maintenance; the good sense of w hich judge Butter, in the case of Master vs. Millar, 4 D. & E. 340, thought very questionable. He even pronounces it not only a quaint maxim, but a bad one; which he says the courts of equity, from the earliest times, thought too absurd for them to adopt. However this may be, it is a rule of the common law, and must be held binding. But we are not disposed to apply it to cases not coming within the reason of the rule; and we are inclined to the opinion, that the present is a case of that description.

There was a breach of the covenant, it is true, before the assignment; but for this breach Hitchings could only have recovered nominal damages. The actual damages accrued after the assignment. They were sustained by the plaintiff, and not by Hitchings ; who has no interest in them, except what arises from his covenants with the plaintiff. But suppose there had been no such covenants, or suppose Hitchings to be insolvent; then, unless the plaintiff can maintain the present action, he is without remedy. This certainly would not be right; nor do I think that such is the law. It seems to me that, if the present case required a decision upon this point, we might be well warranted in saying, that the covenant against encumbrances, notwithstanding the breach, passed to the assignee; so as to entitle him to an action, for any damages he might sustain after the assignment; because the breach continued, and the ground of damages has been materially enlarged since that time; so that the plaintiff’s title does not depend upon the assignment of a mere chose in action. He is principally interested in the covenant; and those covenants run with the land, in which the owner is solely or principally interested, and which are necessary for the maintenance of his rights. Covenant lies by an assignee, on every covenant which concerns the land.—Com. Dig. Covenant, B. 3. —Mo. 242 . [ * 590 ] * But it is unnecessary to give a decided opinion upon this point; as we have no doubt that the plaintiff is entitled to judgment upon the other covenant. And in the first place, it is observable that the words of the covenant are, “ to warrant and defend [the premises] against the lawful claims and demands of all persons; ” and it is agreed that, before and at the time of the grant to Hitchings, there was a claim on the land, by way of mortgage; that after the assignment the mortgagee demanded possession of the plaintiff, or the payment of the debt due on the mortgage, and that he, to avoid a suit, with which he was threatened, and against which he could not defend himself, paid the sum due by the mortgage. Against this claim, therefore, Baker has not defended him, according to the express words of the covenant; and it would seem, that there could be no question as to the breach, unless these words have some technical meaning, different from their common and obvious import.

But it has been insisted, by the counsel for the defendant, that covenants for quiet enjoyment, and a general warranty, extend only to cases of eviction. This proposition is, however, too limited. An ouster or expulsion is equivalent to an eviction by legal process; as has been frequently determined.—3 Saund. 181, b. note 10.—4 D. & E. 617, Foster vs. Pierson.—4 Mass. Rep. 352, Hamilton vs. Cutts & Al. And so is any lawful disturbance or interruption, by a stranger having a paramount title. But some particular act must be shown, by which the plaintiff is interrupted; for otherwise the breach of a covenant for quiet enjoyment is not well assigned.—3 Saund. ubi supra.—Comyn’s Rep. 228.—8 Co. 181, Fraunces’s case.—If the plaintiff, therefore, had voluntarily dis charged the mortgage, without any previous demand made, his only remedy would have been on the covenant against encumbrances.

But a demand having been made, the plaintiff might have yielded to the dispossession; and such an ouster would have entitled him to his remedy on the covenant of * warranty; [ * 591 ] as was decided in Hamilton vs. Cutts & Al. “ There is no necessity,” says Parsons, C. J., in that case, for him ” [the plaintifl] “ to involve himself in a lawsuit, to defend himself against a title, which he is satisfied must ultimately prevail.” If the plaintiff, in the case at bar, had formally yielded possession, and immediately after had extinguished or purchased in the mortgage, he might have recovered against the defendant, on the authority of Hamilton vs. Cutts & Al. There is nothing to distinguish the two cases, but a point of form, which does not affect the merits of the question. The plaintiff has been disturbed in the enjoyment of his possession, by a lawful and paramount claim ; and he has been compelled to purchase in another title, for his own security; which we think£ very clearly, has been a lawful interruption, and a breach of the covenant for quiet enjoyment .

According to the agreement of the parties, judgment must be rendered for the plaintiff.

Defendant defaulted. 
      
       [Vide Kingdon vs. Nottle, 1 M. & S. 355.—King vs. Jones, 1 Marsh. 107.—5 Taunt. 418.—Ed.]
     
      
       [Queere de hoc. Is this equivalent to an eviction ?—Ed.] -
     