
    *Tabb’s Adm’r v. Binford.
    January, 1833.
    [26 Am. Dec. 317.]
    Deed of Bargain and Sale-Covenant —Personal—Case at Bar. — In a deed of bargain and sale of lands, tie bargainor covenants as follows — “And the said T. doth hereby covenant, for himself and his heirs, to anti with the said B. that he the said T. will warrant and forever defend to the said B. his heirs and assigns, the title to the said parcels of land against all persons whatever”— linno. this covenant was not a mere warranty real, but was a personal covenant, upon which an action of covenant lay for the bargainee, on being evicted, against the administrator oi the bargainor.
    In an action ox covenant, brought by Bin-ford against Bolling administrator of Tabb, in the circuit court of Dinwiddle, the plaintiff declared, That Tabb, in his lifetime, by indenture dated the 1st March 1815, in consideration of 2285 dollars, granted, bargained and sold, to Binford and his heirs, two parcels of land in the county of Dinwiddle; and that “the said Tabb then and thereby did covenant, for himself and his heirs, to and with the said Binford, that he the said Tabb would warrant and forever defend to the said Binford, his heirs and assigns, the title to the said parcels of land against all persons whatever”— And the breach alleged was, that Tabb, in his lifetime, and the defendant, his administrator, since his death, had not defended the title of the two parcels of land against all persons whatever; but that, on the contrary, a certain A. B., who, at the time of making the said indenture, and continually until the eviction after mentioned, had and still had lawful title to the said lands, — on &c. at &c. entered into the same, and by process of law ejected and removed the plaintiff against his will from his possession and occupancy, and still held him out of possession thereof, contrary to the form arid effect of Tabb’s covenant aforesaid — By reason of which premises, the plaintiff had not only lost the lands, and divers sums of money, amounting to 1000 dollars, by him expended in improving them, but also the costs sustained by the lessee of the said A. B. in prosecuting his action of ejectment against the plaintiff in the circuit court of Din-widdie, for the recovery *of the lands, and the plaintiff’s own costs in defending the action of ejectment against him. The defendant pleaded covenants performed; upon which an issue ■was made up. Verdict and judgment for the plaintiff for 3206 dollars, with interest thereon &c. to which -judgment, this court, on the application of Tabb’s administrator, awarded a supersedeas.
    And now Johnson argued, for the plaintiff in error, that the covenant set out in the declaration, was a mere general warranty of the land, which bound the war-rantor and his heirs, to render to the grantee, in case of eviction, an equivalent in land; which, therefore, entitled the war-, rantee to recover an equivalent in land only, and that by voucher or warrantia chart», against the warrantor and his heirs, but not to any personal action of covenant against the warrantor, or to any remedy whatever against his personal representative. He cited Harg. Co. Hitt. 36S a, note 1, 2Tho. Co. Hitt. 24S, note A. ; Shep. Touchs. 181, note 1, and the opinions of the judges of this court, in Stout v. Jackson , 2 Rand. 132, and Threlkelds v. Fitzhugh, 2 Leigh 451.
    Heigh,, for the defendant in error,
    contended, 1st, That this was not a mere warranty, that is, the real covenant of warranty and nothing more; that it contained terms which made it a personal covenant. He referred to the form of a mere warranty real, and compared it with the covenant in this case. The form of a warranty, properly so called, was thus: “And I the said W. and my heirs and assigns, all the said parcel of land with all its appurtenances, to the said J. and his heirs and assigns, against all mankind will warrant forever.” 2 Black. Comm. Append. No. 1. But here, the bar-gainor and his heirs did not warrant, but covenanted for himself and his heirs, that he would warrant; he did not covenant to warrant only, but to warrant and defend; and he covenanted to warrant and defend the title of the land, not the land itself: in all which particulars, it was obvious, the covenantor departed from the terms of a mere warranty -real: therefore, he contracted for more than such a warranty would have bound him to perform. For, he said, a covenant to warrant was no more a warranty, than a covenant to sell and convey was a sale and conveyance; and the very use of the word covenant imported an intent to incur a personal obligation. The warranty proper, the mere real covenant of warranty, was created by the word warrantizare alone, without more; a covenant to defend, as well as to warrant, was a stipulation different from, and additional to, the warranty, as was clearly pointed out in Co. Litt. § 773, 383b, 384a. “Where aman is bound upon condition to warrant and defend land to W. S. the . warranty is where he is im-pleaded, but the defending is to save the party so that no stranger enters upon him;” 22 Vin. Abr. Voucher, B. pi. 6, p. 27. And lord Hardwicke, in Williamson v. Codring-ton, 1 Ves. sen. 516, adverted to the effect of a covenant for assurance of title not being penned as real warranty, and to the difference between a covenant or agreement to warrant, and a warranty; and plainly intimated the opinion, that a covenant to warrant and defend is larger than a covenant to warrant only. Upon these authorities, it was justly remarked by Green, J., in Stout v. Jackson, 2 Rand. 148, that, if a covenant of warranty stipulates not only to warrant but also to defend — “the word warrant would be construed technically, so as to bind the warrantor to compensate in lands of equal value, upon voucher or war-rantia chart»; the word defend would be considered as making a personal covenant equivalent to a covenant for quiet enjoyment. ” Further, the court would find, that the real covenant of - warranty always stipulated to warrant the land conveyed itself; but this was a covenant to warrant the title conveyed by the deed, that is, the fee simple in-the land; and so was tantamount to a covenant that the grantor had good title in fee. Therefore, he concluded, that either this was a personal covenant, or it contained both a real and a personal covenant. And, without doubt, in every case of an express personal covenant, the ^covenantor was bound to make compensation in damages for a breach, and his personal representatives were bound, without being named, unless the covenant be such as determined by his death. 2 Bac. Abr. Covenant, R. 1, p. 69, Shep. Touchs. 178. 2ndl3', He admitted, that (as is said in 2 Bac. Abr. Covenant, C. p. 67,) it seemed by the better opinion, that upon the eviction of a freehold, no action would lie upon a warranty either in deed or in law; for the party might have had his warrantia chartas or voucher. .But it had been adjudged, in an action of covenant upon a warranty real of a freehold estate, of which the breach was that the warrantee had been impleaded and evicted for a term of years, that “the action of covenant would lie; because, though the warranty was annexed to the freehold, yet the breach and impeaching was not of a freehold but of a chattel, for which there could neither be voucher, rebutter, nor war-rantia chart», so that though there had been a judgment in warrantia chart» in such case, yet either upon entry or upon recovery in ejectione firm» upon the lease, there could be neither voucher nor rebutter, nor value upon warrantia chart»; and therefore, a real warranty is a covenant real when the freehold is brought in question, but when a lease is in question, or any other loss that doth not draw away the freehold, it may be used as a personal covenant whereupon damages may be recovered ; so it is both a real and a personal covenant to several ends and respects;” Pincombe v. Rudge, Hob. 3, 28. Now, in the case before the court, the warrantee was impleaded in an ejectment, which being, in form, an action to recover only a term of years, though in effect it involved the whole question of title, the warrantee could have had neither voucher nor warrantia chart» against the warrantor; and being evicted, of course, but for a term of years, which did not draw away the freehold, he had a right to use this as a personal covenant,; to bring his action of covenant for the breach, and to recover compensation in damages; for, otherwise, he would have had no remedy. 3rdly, He referred to the doubt expressed by *Coalter, J., arguendo, in Stout v. Jackson, 2 Rand. 1S6, whether upon a pure warranty, warrantia charts would lie in Virginia, at this day, when voucher was done away by our statute, 1 Rev. Code, ch. 128, \ 34, p. 496, and to the opinion intimated by that judge, that,' — since the statute, — considering the obsoleteness of the ancient remedy, its incompatibility with the situation of this country, and the probable intent of parties in all contracts of warranty, — '“the general sense of the country and sound principles of justice, therefore, require, that all covenants of this kind, however worded, should be considered, as to the remedy in case of eviction as personal covenants of the vendor, that is, that a personal action of covenant will lie on such a warranty.” And the counsel argued that these opinions were just though extrajudicial, and ought at once to be declared the law of the land. To shew the effect of the statute taking away the voucher, upon the remedy by warrantia charts;, how inti-ma tely the two remedies were connected, and how essential the voucher was, in many cases, to the efficiency of the war-rantia chart®, he cited F. N. B. 134, K. 4thly, He said, all difficulties were obviated by the statute of jeofails, 1 Rev. Code, ch. 128, 'i 103, p. S12, providing, that no judgment after verdict shall be stayed or reversed — “for any mistake or misconception of the form of action, or for any other defect whatsoever in the declaration or pleadings, whether of form or substance, which might have been taken advantage of by demurrer, and which shall not have been so taken advantage of.”
    Johnson replied, 1st, That though the covenant in question varied from the ancient technical form of a warranty real, in some xjarticulars, yet the variances were wholly immaterial; they were variances in words, not in sense: and it could hardly be maintained, that the real covenant of warranty could only be expressed in one set form of words, and no other could be devised to convey the same meaning and intent. The first variance from the ancient form, was, that the bargainor did not say that he and his heirs would ^'warrant; he only covenanted for himself and his heirs that he would warrant. Now, the definition of a warranty real, was, “a covenant real annexed to lands and tenements, whereby' a man and his heirs are bound to warrant the same;” Co. Litt. 363a: so that here, the warrantor, without exactly copying the usual form of warranty real, had expressed his contract in the terms of the definition of such a warranty. In truth, a warranty real, expressed in the strict ancient form, was nothing but a covenant to warrant; a real covenant, of peculiar character and effect, but still only' a covenant: for every agreement or consent by two or more, by deed, whereby either promises to the other, that something is done already, or shall be done afterwards, is a covenant; Shep. Touchs. 160, 1. As to the next variance from the ancient form of the warranty' real, which had been mentioned, namely, that the warrantor here, stipulated not only' to warrant, but to warrant and defend ; he said, that was a variance from the form of the warranty real given by Blackstone; but the form given in Sheppard’s Touchstone, 181, was thus — “I and my heirs will warrant and forever defend to W. S. and his heirs, the said tenements against all men forever.” And he insisted, that when those two phrases are used in one covenant annexed to a conveyance of land only, they made only one covenant, and that a real covenant of warranty, not two distinct covenants, one real and one personal. The opinion of Green, J., in Stout v. Jackson, 2 Rand. 148, was, he thought, extrajudicial in this respect, and, certainly, was not supported by lord Hard-wicke’s reasoning in Williamson v. Cod-rington, 1 Ves. sen. S16, for that was the case of a covenant in a conveyance of both real and personal estate, whereby the war-rantor obliged himself, his heirs, executors and administrators, to warrant and forever defend both the real and personal estate conveyed ; and the decision was, that this was, in respect to the personal estate, a personal covenant, not (as had been contended) a covenant of warranty real applicable only to the real estate conveyed. In the passage from Bracton, quoted *in Co. Litt. 383b, it was said- “by this phrase we warrant, the warrantor took upon himself an obligation to defend his tenant and his assigns, and their heirs, in possession of the thing granted;” and 2 Tho. Co. Litt. 24S, note A. was to the same effect: so that, here again, the warrantor, in the present case, had only expressed his contract to warrant, according to the legal effect of the warranty' real, which bound him to defend the land granted to the warrantee. Then, as to the peculiarity in this covenant, lastrelied on, to shew that it was not a mere warranty real, — that it was a covenant to defend the title, not the land itself; he said, it was enough to remark, that the warrantor could nowise defend the land but by defending the title; and had the war-rantor been vouched on this warranty, he would only' have been called to defend the title. The true test, by which to determine whether the covenant in question was a warranty real or no, was, to ascertain whether voucher or warrantia chart® would have lain upon it, at common law? for if either of those remedies might have been resorted to, this was a mere warranty real. And he contended that voucher or warran-tia chart® might have been maintained; to which point he cited Doe v. Prestwidge, 4 Mao. & Selw. 178, 182. 2ndly, Taking this to be a mere warranty real, which bound the warrantor and his heirs to render an equivalent in land only ; he said, it resulted from the very nature of the contract, and the authorities were quite clear, that no personal action lay against the warrantor himself, much less against his personal representatives. And to the argument of the counsel of the appellee, that though this might have been true in case the war-rantee had been evicted of the whole fee simple warranted, yet it was not true in the actual case, in which he had been impleaded in ejectment, and evicted of only a term of years, and that this was a breach for which a personal action of covenant lay, even though this were a warranty real; he answered, 1. that it had been admitted, that the judgment in ejectment was, in effect, though not inform, an eviction of the whole estate; *and 2. that the breach laid in the declaration was, that the warrantor had not defended the title— namely, the title conveyed, — the fee simple ; and it was necessary to prove that he was evicted of tha't, in order to establish the breach. 3rdly, He argued, that our statute taking away the remedy by voucher, nowise affected the other remedy that lay at common law on a warranty real, — the remedy by warrantia chart»; for this lay wherever the warrantee was impleaded in an action in which he could not vouch. E. N. B. 134, D. 4thly, As to the provision in the statute of jeofails, he said, that, if he was right on the main points in debate; if the appellee had, by his own shewing in his declaration, stated a case in which the defendant was clearly exempted from all liability; surely, the statute could not be strained so far as to entitle him, notwithstanding, to a judgment.
    
      
      Conveyances — Covenant of Warranty — Effect.—In Burtners v. Keran, 24 Gratt. 68, it is said: “Warranty is now considered a personal covenant, sounding merely in damages. Under onr statutes and decisions it is treated as a covenant to warrant and defend, while it ba,s also all the effect of a covenant for quiet enjoyment. Tabb's Adm’r v. Binford, 4 Leigh 132; 2 Rob. Prac. 86. It creates personal rights, wholly independent of the estate, and which may survive long after it is extinguished, for the beneiit of the covenantee.”
      Also in Rex v. Creel, 22 W. Va. 376, it is said: “But a more serious objection to the declaration and each count is, that the action will not lie against him for broach of ancestor’s covenant of general warranty. That such a covenant as is sued on here: ‘that said Creel by said indenture oi bargain and sale did then a.nd there covenant to and with the said plaintiff, his heirs and assigns, that he would warrant generally and defend all the land thereby sold, etc.,’which by our Code is declared to’have the same efiect, as if the grantor had covenanted, that he, his heirs, and personal representáis vos will lorever warrant and defend the said property unto the grantee, his heirs, personal representatives and assigns against the claims and demands of all persons whomsoever,’ (Code, W. Va. chapter 72, section 13, page 466.) is a personal covenant, there is no doubt. Tabb's Adm'r v. Binford, 4 Leigh 132: Chapman v. Holmes, 10 N. J. Law 24; Townsend v. Van Courtlandt's Ex’ors, 6 Cow. 123.”
      A covenant of warranty of title is a personal covenant, upon which an action of covenant lies on eviction against the personal representative. Knotts v. McGregor, 47 W. Va. 566, 35 S. E. Rep. 901, citing Tabb v. Binford, 4 Leigh 132. The principal case is reported in 26 Am. Dec. 317, with note.
      
      See monographic note on “Covenants” appended to Todd v. Summers, 2 Gratt. 167; monographic note on “Landlord and Tenant” appended to Mason v. Moyers, 2 Rob. 606.
    
   CARR, J.

It was contended for the.plaintiff in error, that the covenant declared upon, is a pure warranty which descended upon the heirs of the covenantor, and upon which this action of covenant did not lie against the administrator. In discussing this point, the counsel on both sides went into the ancient and obsolete doctrines of the pure common law warranty, embracing the warrantia chart», voucher, and other points of learning connected with the subject. The view which I have taken of the covenant in this case, will render it unnecessary to explore this unfrequented path. Whether the writ of warrantia chart» be an existing remedy with us at this day, I shall not undertake to decide: but this I may say, — so entirely have the personal covenants in conveyances superseded the old common law warrant}’-, that there is not one man in ten thousand, who, when he stipulates for a deed with warranty, means to take that common law assurance, which binds the lands only of his vendor, and gives him no remedy but the warrantia chart». In truth, this is never the intention of the contracting parties; and therefore, in the construction of their covenants, I would hold those only to constitute a pure technical warranty, *which come strictly up to the definition of it by the ancient writers. Ego et heredes mei warrantizabimus in per-petuum: these are the technical words; the alienor for himself and his heir warrants the lands forever. It is no covenant or agreement to warrant; it is an actual warranty : it is no covenant to warrant the title to the land; it is a warranty of the land itself. In these particulars the covenant before us differs from the warranty real; and the counsel for the defendant in error shewed, that these are by no means mere verbal differences; but if they were, I would, in this case, hold them important. There is another difference, held by lord Hardwicke to be important; which is that here, the word defend is added to the word warrant. Upon the whole, I am of opinion, that this is a personal covenant; that the action well lay against the administrator; and therefore that the judgment of the circuit court must be affirmed.

CABELL, J. I am clearly . of opinion,, that the judgment should be affirmed.

BROOKE, J.

I think the terms of the-covenant in this case, make it a personal: covenant, and not a pure warranty real at common law. In the first place, this is an executory contract, not a contract executed, as I understand the technical warranty real at common law to have been; it is a covenant to warrant; and it also differs from the terms of the pure warranty real, in being a covenant to warrant the title, not the land conveyed. A covenant to warrant and defend the title, is a different agreement from a pure warranty, and admits of a different plea; for though it was argued, that a pure warranty is only a covenant, though it be a real one,' and that on voucher by the warrantee, the warrantor must insist on his title, and that a covenant to warrant and defend the title, imports no more, —yet I think there is a wide difference between the two things. In warrantia chart» brought on the pure warranty real, upon' the supposition *that the war-rantee had been impleaded though in fact he had not yet been impleaded (a proceeding that might be had on the pure warranty) ; if the defendant by plea denied that the plaintiff was impleaded, he would thereby admit the warranty, and that it was broken, and judgment would be given for the warrantee; N. B. 134, K. Now this shews the difference between the coyenant in the case before us, and the pure warranty : for I take it for granted, such a de-fence, on such a covenant as this, would not be an admission on the part of the defendant, that he had broken his covenant: on the contrary, such a defence would be held good ; it would be equivalent to a denial, on the part of the defendant, that the title which he covenanted to warrant, had been disturbed or legally questioned; a denial, that any claim or demand against which he covenanted to warrant and defend, had been made by any person by suit. Or, suppose the plaintiff had been impleaded in a proper action, and he had vouched the defendant, the vouchee, in order to defend the premises warranted, must have shewn, that he was seized in fee at the time he made the warranty: he could not have shewn, that, though he had no title at that time, he then had the title, — -as he might in this action of covenant, if I understand the import of the covenant to warrant, — because by shewing that the title was then in him, his covenant to warrant would not be broken. This illustration may be said to beg the question,- — to take for granted, that the covenant in question does not amount to a pure common law warranty. But its object is, to shew that the covenant here was not intended by the parties for a pure common law warranty and nothing more, since the obsolete remedy by a writ of war-rantia chart», could not have been in the contemplation of the parties. As the law makes a part of every contract, and the parties are presumed to know the law; a departure from the terms which constitute a pure warranty real, is conclusive that the pure warranty real was not in their contemplation; especially, as it hardly can be imagined, that the grantee meant to rely on the ancient ^'common law remedies upon a breach of the warranty real, one of which (the voucher) is taken away by statute, and the other obsolete, if not also abolished. In the case of Williamson v. Codrington, where the cove-nantor 1 'oblige himself, his heirs, executors and administrators to warrant and defend the plantation, negroes, cattle &c.” lord Hardwicke after remarking on the subject of the covenant, said, “this clause is not penned as a real warranty ; which is, I do for myself and my heirs warrant such land: here, the words are, I do oblige &c. which amount to the same as I covenant &c., for many words in a deed will amount to a covenant besides the word covenant, as I oblige, agree. This then is barely a covenant, for himself, his heirs, executors and administrators, to warrant; which word must be construed in a larger sense than warranty in a strict legal sense; as large as defend.’’ Such, essentially, is the covenant before us. The grantor covenanted to warrant and defend the title in fee simple, as it was the fee simple in the land which he sold and conveyed. In substance, it was a covenant of seizin in himself; that is, that he was cloathed with the title in fee conveyed to the grantee. A covenant and agreement to warrant the title, is, I think, no more a - warranty than a covenant to sell is a sale. Had the previous words in the covenant been the appropriate words to constitute a real warranty, with the words and defend su- . peradded, I should doubt whether these last words would change the character of the contract, and make it a personal covenant (though lord Hardwicke has laid some stress on them, in the case just mentioned) : for, in the case of Pincombe v. Rudge, Hob. 3, 28, the words and defend were added to the word warrant, and yet the judges treated it as a real warranty, though it was decided, that, as the warranty was broken by a claim to a term of years only, covenant well lay.

I think tile fair conclusion from the authorities, is, that whenever there is a departure from the form of the real warranty we find in the books, from which to infer a change *of the contract, it must be considered a personal covenant, whether executors are named or not, and though the heirs are named, as in the case before us.

Although I do not think it belonged to this case, to investigate the remedies on the real warranty at the common law; yet, as much was said by the bar on that subject, I have again consulted the books, and find that I was entirely' correct in what I said concerning it, in Stout v. Jackson and Threlkelds v. Fitzhugh.

The judgment should be affirmed.

TUCKER, P.

Waiving the inference that this is a personal covenant, drawn from the expression I covenant to warrant, instead of the simpler form I do for myself and my heirs warrant, which lord Hardwicke thought a proper inference,— it is sufficient to rest this case upon the use of the word defend. This is a covenant not only to warrant but to defend. Now, the same g^eat judge distinctly intimates, that the sense of the word defend, is larger than that of warrant. Therefore, where a party covenants to warrant and defend, the obligation to defend, cannot be identical with the obligation to warrant, because it means something more. Not being identical, it is therefore distinct; so that if, as Í concede, the covenant to warrant, has here the operation of the common law warranty, yet the covenant to defend, has a separate and distinct operation. It is a distinct covenant, though contained in the same clause. And it is clearly not the technical warranty; for defendemus does not make a warranty, nor indeed any other word than warrantizabimus. Co. Litt. 384, a. If then it be not the technical warranty, it is a personal covenant, as much as a covenant of seizin or for good title. It is, in effect, much the same as a covenant for quiet enjoyment: for “where a man is bound to warrant and defend, the warranty is” [that is, applies] “when he is impleaded: but the defending, is to save the party' that no stranger enters upon him.” 22 Vin. Abr. Voucher, B. pl. 6, citing Br. 60, who cites 2 E., 4, 15. And judge Green, *accordingly, in Stout v. Jackson, remarks, that if a covenant of warranty binds the party not only to warrant, but to defend, the word defend, would be considered as making a personal covenant, equivalent to a covenant for quiet enjoyment. Indeed, it seemed to be admitted by the counsel in the argument, that if by one clause I covenant to defend, and by another clause I covenant to warrant, the first would make a personal, and the last a real covenant. I cannot perceive, that the union of them in the same clause, will neutralize the operation of the covenant to defend. If in the same clause, I covenant to deliver a horse, and to pay a sum of money, or to pay money, and make a title to land, or that I have good title and right to convey; yet, in each of these cases, the covenants are distinct though the clause is the same. In like manner, a covenant of seizin, and for quiet enjoyment, would be distinct covenants, though united in the same clause; and so, a covenant to warrant and defend; since it is established by concurrent authorities, that they are not convertible terms.

Upon ihese reasons, and sustained by the opinion of lord Hardwicke, and the uncon-tradicted authority of a decision more than 400 years old, as to the effect of a covenant to defend, I am of opinion, that the covenant to defend in this case constituted a personal covenant; and so bound the personal representatives of the covenantor, whether named or not named. I am also of opinion that that covenant was broken by the entry of a stranger (having better title) under a judgment in ejectment.

Judgment affirmed.  