
    *Samuel E. Foote v. Jacob Burnet, Survivor of William Corry.
    In an action for the breach of a covenant against incumbrances, the rule of damages is the amount paid to extinguish the incumbrance, provided the same does not exceed the consideration money and interest.
    
    This is an action of covenant on an agreed state of facts, from the county of Hamilton.
    Jacob Burnet and William Corry, on September 19, 1825, sold and conveyed to John P. Foote, a lot in Cincinnati, on the east side of Vine street, for $1,020, the consideration paid. This deed eontainod the covenants of seizin, warranty against incumbrances, etc.
    John P. Foote sold the same lot of ground to Samuel E. Foote, 318] the plaintiff, and gave him possession in 1826. The *doed from John P. to Samuel E. Foote contains the same covenants as the deed from Burnet and Corry.
    Burnet and Corry held title to the lot, under a deed of mortgage from Jacob Ely to O. M. Spencer, Jacob Burnet, and William Corry, dated March 5,1817, recorded the 15th of the same mouth , but attested by only one witness. On this mortgage a scire facias was sued out from the court of common pleas of Hamilton county, adjudgment rendered at the May term of said court, 1821, levari facias issued on said judgment, under which the premises were sold to Burnet and Corry, and conveyed to them by the sheriff, by deed bearing date January 28, 1824.
    On March 8,1817, Jacob Ely executed a mortgage deed in due 
      { form of law to Elmore Williams and others, of the same premises,* to secure the payment of divers sums of money, amounting in the whole to about $2,000. This money was never paid by Ely.
    319] *Elmore Williams and others, the last mortgagees, instituted an action of ejectment against the tenants of Foote, in the court of common pleas of Hamilton county, and at the November term, 1829, recovered a judgment by default, and under this judg- , ment were put in possession of the premises.
    Foote afterward commenced an action of ejectment against* Williams and others, to recover back the possession of the same premises. This case was tried at the May term, 1834, of the Supreme Court of Hamilton county, and was decided in favor of Williams and others; the court holding that the title of Foote as a legal title was defective, there being but one witness to the mortgage deed, executed by Ely to Spencer, Burnet, and Corry.
    A suit in. chancery was then instituted in the name of Foote against Williams, by the advice of Burnet and Corry, and for the benefit of all concerned. In the bill it was alleged that Williams and his co-mortgagees had notice of the first mortgage, 320] *at the time they received their deed. This fact was denied by Williams in his answer. This case was heard at the May term of the Supreme Court, 1834, and a decree entered in favor of Williams, but Foote was let in to redeem upon the payment of $1,773.95, which being paid he was restored to tho possession.
    
      In the declaration, it is averred that all the covenants in the deed from Burnet and Corry to John P. Foote were broken.
    
      W. R. Morris, for, the plaintiff:
    The plaintiff claims in this ease to recover the amount of incumbrance, charged upon the land as stated in the agreed case by the decree. The deed on which the action is brought contains all the usual covenants of warranty and seizin, quiet enjoyment, etc., and also a covenant against incumbrances.
    
    In this country in an action upon the covenant of warranty, tho rule of damages is different in the different states. In Massa321] chusetts *this rule is the value of the estate at the time of eviction. 1 Swift’s Dig. 673; Gore v. Brasier, 3 Mass. 523.
    In Connecticut the measure of damages, in an action for the breach of the covenant of seizin, is the consideration money and interest, while in an action for the breach of the covenant of warranty, the measure is the value of the land at the time of eviction, with the costs which the plaintiff has sustained in the action in which he was evicted. 1 Swift’s Dig. 673.
    In New York, Pennsylvania, and perhaps in most of the other states, the measure of damage in actions of the latter description, is the value of the land at the time the covenant is entered into ; in other words, the consideration paid with interest. 1 Swift’s Dig. 673; Pitcher v. Livingston, 4 Johns. 1; Bender v. Fromberger, 4 Dallas, 436.
    In the present case the plaintiff claims to recover upon the covenants against incumbrances, in relation to which covenants the 322] rule established in New York and Massachusetts is, *that the plaintiff shall recover the amount of the incumbrance charged on the land, or the amount he has been fairly compelled to pay to extinguish it. The reason for the rule is, that such covenant is a contract of indemnity. The sum to be recovered is not controlled or .affected by the consideration paid. 1 Swift, 674; Prescott v. Truman, 4 Mass. 627; Delavergne v. Norris, 7 Johns. 358; Hall v. Dean, 13 Johns. 105 ; Dimmick v. Lockwood, 10 Wend. 142.
    V. Worthington, for the defendant:
    The first inquiry in this case is, as to which of the covenants in the deed of September 19, 1825, to John P. Foote, the defendant is liable to the action of the plaintiff, as the assignee of said Eoote; and the second, as to the measure of damages under the covenants upon which the action has accrued in the present instance.
    Of the ordinary and usual covenants in a deed, some arc ^purely personal and de prcesenti. These are complete and [323 perfect, or broken and impaired as soon as made. Others are real and de futuro, dependent upon posterior events, and of which there can be no breach until such events happen. This latter class is inherent in and attaches to the realty, and runs with it until the breach ensues.
    To the former class belong the covenants of seizin, of right to convey and against incumbrances, and to the latter belong the covenants for further assurance, of quiet enjoyment and of warranty. The former are in the present tense, and relate to matters and things as they are. The latter are in the future tense, and relate to contingencies which may subsequently arise.
    All these covenants, both real and personal, are unassignable at law after a breach ensues, and from rights existing in written contracts, they become mere ehoses in action.
    That the covenants of seizin and of right to convey are personal, *and do not run with the land, would seem from [324 many authorities and from reason itself. 4 Kent’s Com. 469, 2 ed.; Greenby v. Wilcocks, 2 Johns. 1; Bennet v. Irwin, 3 Johns. 359, 364; Hamilton v. Wilson, 4 Johns. 71; Abbott v. Allen, 14 Johns. 248; Booth v. Starr, 1 Conn. 244; Mitchell v. Hazen, 4 Conn. 495; Roath v. Smith, 5 Conn. 133; Mitchell v. Warner, 5 Conn. 497; Davis v. Lyman, 6 Conn. 249; Martson v. Hobbs, 2 Mass. 433; Bickford v. Page, 2 Mass. 455; Pollard v. Dwight, 4 Cranch, 421; S. C., 2 Pet. Cond. 157 ; Garfield v. Williams, 2 Vt. 327; Bartholomew v. Candee, 14 Pick. 167; Andrew v. Pierce, 4 B. & P. 156; 2 Saund. 181 a, n. 10; Bradshaw’s Case, 9 Rep. 60 Innes v. Agnew, 1 Ohio, 386. That these covenants are broken as> soon as made, if broken at all, and are not assignable, being mere 
      choses in action, would also seem from many authorities: Lewes v. Ridge, Cro. Eliz. 863; Marston v. Hobbs, 2 Mass. 433; Bickford v. Page, 2 Mass. 455; Porter v. Perkins, 5 Mass. 233; Walcott v. Knight, 6 Mass. 418; Warren v. Childs, 11 Mass. 223; Bartholomew v. Candee, 14 Pick. 167 ; Hamilton v. Wilson, 4 Johns. 71; Bennett v. Irwin, 3 Johns. 364; Waldron v. McCarthy, 3 Johns. 472; Kortz v. Carpenter, 5 Johns. 120; Williams v. Jackson, 5 Johns. 489; Kane v. Sanger, 14 Johns. 89; Buell v. Cook, 4 Conn. 238 ; Mitchell v. Hazen, 4 Conn. 495 ; Mitchell v. Warner, 5 Conn. 497; Davis v. Lyman, 6 Conn. 249; 1 Swift’s Dig. 170; 1 Shep. Touch. 170; Innes v. Agnew, 1 Ohio, 386; Backus v. McCoy, 3 Ohio, 218.
    Yet there are a few cases that would seem to militate with this position. They are; King v. Jones, 4 Taunt. 418; S. C., 1 Eng. Com. Law, 139; Kingdon v. Nottle, 1 Maule & Selw. 255 ; S. C., 4 Maule & Selw. 53.
    The case in 3 Ohio, 218, of Backus v. McCoy, presents the law upon the covenant of seizin in a new aspect, and it is believed that 326] this decision is neither based upon principle nor ^authority. Upon the covenant of seizin, where there is no seizin at the time of the contract, the rule of damages is the value of the thing which is the subject matter of the contract. The consideration paid, being the estimated value fixed by the parties themselves, forms the basis of recovery. Cox v. Strode, 2 Bibb, 273; 4 Kent’s Com., 1 ed. 462; Staats v. Ten Eyck, 3 Caine, 11; Pritcher v. Livingston, 4 Johns. 1; Waldo v. Long, 7 Johns. 173; Caulkins v. Harris, 9 Johns. 324; Bennett v. Jenkins, 13 Johns. 50 ; Duvall v. Craig, 2 Wheat. 62 , Baldwin v. Munn, 2 Wend. 399; Cushman v. Loker, 2 Mass. 108; Bender v. Fromberger, 4 Dallas, 436 ; King v. Kerr, 5 Ohio, 154.
    Where the loss is partial, then the rule.of damages changes, and ■is only commensurate with the injury. Wager v. Schuyler, 1 Wend. 553; Morris v. Phelps, 5 Johns. 49 ; Guthrie v. Pugsley, 12 327] Johns. 126; 4 Kent’s Com. 464, 1 ed.; Hubbard *v. Norton, 10 Conn. 422 ; Backus v. McCoy, 3 Ohio, 211; King v. Kerr, 5 Ohio, 160.
    Like the covenants already referred to, the covenant against in•cumbrances is also held to be a personal covenant, not running with the land, nor passing to the assignee. 1 Shep. Touch. 170; 1 Swift’s Dig. 370; Mitchell v. Hazen, 4 Conn. 495; Mitchell v. 
      Warner, 5 Conn. 497; Dart v. Dart, 7 Conn. 250 ; Hubbard v. Norton, 10 Conn. 433; Prescott v. Truman, 4 Mass. 627; Wyman v. Ballard, 12 Mass. 304; Delavergne v. Norris, 7 Johns. 358; Hall v. Dean, 13 Johns. 105; Stanard v. Eldridge, 16 Johns. 254; 8 Pick. 346 ; Wetmore v. Green, 11 Pick. 463; Brooks v. Moody, 20 Pick. 474; Bickford v. Page, 2 Mass. 455; Chapel v. Bull, 17 Mass. 213; Dimmick v. Lockwood, 10 Wend. 142.
    It is equally well settled upon this covenant, that the damages are nominal before the incumbrances are paid off; but the party may recover the amount of money fairly paid to remove *the [328 incumbrance, whether paid before or after the action had been commenced. Pritcher v. Livingston, 4 Johns. 1; Delavergne v. Norris, 7 Johns. 358; Hall v. Dean, 13 Johns. 105 ; Burdick v. Green, 15 Johns. 247; De Forest v. Leete, 16 Johns. 122; Baldwin v. Munn, 2 Wend. 399; Dimmick v. Lockwood, 10 Wend. 142; Kellogg v. Ingersoll, 2 Mass. 97 ; Prescott v. Trueman, 4 Mass. 627; Wyman v. Ballard, 12 Mass. 304; Leffingwell v. Elliott, 8 Pick. 455; S. C., 10 Pick. 204; Tufts v. Adams, 8 Pick. 547 ; Wetmore v. Green, 11 Pick. 462; Brooks v. Moody, 20 Pick. 474; Mitchell v. Hazen, 4 Conn. 495; Mitchell v. Warner, 5 Conn. 497; Davis v. Lyman, 6 Conn. 249; Hubbard v. Norton, 10 Conn. 433. But in no case can the recovery exceed the amount of consideration money paid, and interest. Dimmick v. Lockwood, 10 Wend. 142.
    The plaintiff then can not recover ujmn the covenant against incumbrances, because that covenant is a personal covenant not running with the land, and was not assigned, and could *not [329 be assigned to him, by the deed from his immediate grantor. If he can recover'upon this covenant, he can not recover an amount greater than the consideration money paid, and interest.
    He can not recover upon the covenant of seizin for the same reason.
    He can not recover upon the covenant of warranty, because although evicted, he has not lost the land. But he may recover upon the covenant for quiet enjoyment, having been disturbed in the possession. And for the injury thus sustained he is entitled to damages.
    The foregoing are but brief abstracts of the arguments of the learned counsel, who enforced the different positions by them assumed with great force and ability.
    
      
      Until about the middle of the seventeenth century, the common assurance of title to real estate in England was the warranty. That operated in four wavs to the benefit of the tenant who had it:
      1. It was a perpetual bar against the warrantor and his heirs from ever claiming any right in the land, 
      
      2. If the tenant was disturbed by an elder title for years, or suffered any other loss that did not take away the freehold, he might use the warranty as a personal covenant, and recover damages upon it. But whenever the freehold was evicted, or called in question, no such action lay. 
      
      3. When the freehold was attacked, a writ issued in most cases, at the instance of the tenant, warning his warrantor to eome into court and defend the suit. If the warrantor took on himself the defense, the tenant left the court, • and the suit was carried on between the demandant and the warrantor. If the demandant prevailed, the same judgment that gave him the land demanded also gave the tenant other lands of the warrantor of equal value. When there was a series of warrantors, as if A. was tenant, and B., 0., and D., successive warrantors, if B. was called by writ to defend the tenant, B. had a like writ against O., and O. against D., and so on ad infinitum, to the last warrantor. The tenant then counted against the last warrantor, and .if the last warrantor was cast in the suit, one judgment only was rendered, and that gave to demandant the land in dispute, and to the tenant, other lands of the last warrantor, of equal value, no mention being made of the intermediate warrantor. If D., the last warrantor, had no lands wherewith to satisfy the tenant, then G. was bound to recompense the tenant and wait himself for bettor times, till D. could recompense him; and the same thing was to be done by B., if neither O. nor D. had anything to satisfy the tenant. If the last warrantor could satisfy only a part, the remainder was to be supplied by the intermediate warrantors, observing the same order, “ ab ultimo usque primu.” 
         But where the tenant once recovered other lands in value, if he was afterward impleaded of those lands, he could not again call upon his warrantor, for the warranty was executed. 
      
      If the warrantor, on being served with the writ, neglected to appear and make defense, another writ issued at the instance of the tenant, upon which the sheriff seized into the king’s hands other lands of the same valuó, and there he held them, to abide the issue of the suit,  But if he had no land in fee that might be taken into the king’s hands, or by which he might be distrained, then a writ went to the sheriff, quod habeat corpus, 
        
      
      "Whenever the tenant chose to take on himself the defense of the suit without issuing a writ to warn yi his warrantor, when the law allowed it to be done, if he lost the land, it was counted his own folly, and no remedy was left to him. 
      
      
        The heir of the warrantor was in like manner called into court¡ and if at the time of the recovery against him he had no lands descended to him, execution was stayed; hut if afterward lands fell to him by descent, a resummons lay against him to reach the lands.
      4. The tenant at any time before exeoution had against him, might sue out the writ of warranty of charters, and recover a judgment binding all the land the warrantor had at the test of the writ, into whose hands soever it might afterward pass. This writ might he sued either before or after the tenant was impleaded, so that it was done before execution had against him, for till execution, the tenant was in of the estate warranted; hut if execution was once had, then the warranty failed with the estate, 
         But the tenant, being impleaded, was nevertheless bound to call the warrantor into court, to defend the suit, or request the warrantor to minister to him a bar, where voucher did not lie; otherwise, if the tenant lost the land, the judgment availed him nothing, and he had no remedy over against the warrantor. If, however, the tenant, without any such default of his,-lost the land, a scire facias lay upon the judgment, and the tenant recovered other lands of the warrantor of the value of those he lost. 
      
      A like judgment might he had against the heir of the warrantor binding all the land he had by descent.
      The warranty of charters could he sued only by the tertenant. But if A. was tertenant, and B., 0., and D. successive warrantors, and A. either quia timet, or ponding the action against him, sued warranty of charters against B., then B. became in law tertenant, and might sue a like writ against 0., and O. against D., and so on to the last warrantor, 
      
      An assignee might sue warranty of charters. 
      
      For the loss of his land the tenant could seek no other recompense than other lands of the warrantor. The personalty was beyond his reach. It was other lands or nothing, 
      
      The warrantor was liable only for the value of the land at the time he entered into the warranty, and not for any improvements made by the tenant, or for any increased value of the land, 
      
      At common law, no damages were recovered in any real action, because the tenant for the time being, was bound to perform the feudal duties to his lord, and was therefore entitled to the issues and profits; but afterward, damages in certain cases were allowed by statutes. They were assessed by deducting from the value of the issues and profits, the improvements made by the tenant.  But if the tenant expended in improvements more than the issues and profits, he had no remedy for the excess; for it was of his own folly, 
      
      Damages thus assessed against the tenant were recoverable by him on the warranty. 
      
      The warranty was express or implied, 
      
      It might be annexed to all estates of freehold or of inheritance.
      To estates incorporeal, as advowsons, rents, Ammons, estovers and the like.
      It could not be annexed to chattels real, nor to the estate of tenant by statute, or elegii; the warranty of such estates was a mere personal covenant on which damages only were recoverable. 
      
      Such is a brief sketch of the law of warranty as it appears to have been practiced down to near the close of the seventeenth century. It seems to have been found defective in three principal points: Because of the great delay which always accompanied voucher and warrantia chart!»: because a tenant upon judgment in voucher or warrantia chartse, could by no possible means reach either the person or the personal estate of the warrantor; and because, if a purchaser acquired a bad title, so that he could neither sell the land nor improve it, yet he had no redress, until he who had the paramount title might choose to assert it against him. 
      
      To remedy the evils of the old law, it is said that Sir Orlando Bridgman, who, with other eminent counsel during the civil wars, betook himself to conveyancing, invented what are called the modern covenants for title, 
         and from that period, the warranty gradually fell into disuse; and it is said to be now nowhere found, in England, as an assurance of title to freehold estate, except as a part of the ancient mode of conveyance by fine, 
      
      These modern covenants are: Seizin, right to convey, quiet enjoyment, against incumbrances, and for further assurance. Bach one requires a few observations.
      IN ENGLAND.
      Seizin. — This covenant is an assurance to the purchaser, that the grantor has the very estate in quantity and quality, which he purports to convey; whether the same be in fee, for life, or for years. 
         And a vendor who makes a had title is liable in damages upon it, at once, before any disturbance of his grantee. If one, under an impression that he is seized of land in fee, or possessed for a term of years, aliens, and covenants that he is lawfully seized, or possessed, or that he hath a good estate, or that he is able to make such an alienation, etc., when in truth the estate is in some other person at the time, the covenant is broken, as soon as it is made, 
      
      In 1813, this covenant came before the king’s bench in a new aspect. (e) Lands had been conveyed with the covenant of seizin, etc. The grantee entered, made his will, and died. The devisee entered, and while he was in the uninterrupted enjoyment, the executor brought suit for a breach of the cove- . nant of seizin, seeking to make the damages assets. And the great question in the ease was, whether the executor,.or the heir, was entitled to the action. Under the ancient warranty, before the covenant of seizin was invented, the right to recover was of course in the heir, and the king’s bench now applied the same doctrine to the covenant of seizin, and ruled against the executors holding, that if they gave the action to the executor the right of the heir was cut off in ioio; which is not there the policy. The devisee afterward, still retaining the possession, prosecuted his action upon the same covenant, and recovered. 
      
      In assigning a breach of this covenant, the plaintiff need not set out any adverse title, but it is enough to allege in the direct negative that the party was not seized, etc. 
      
      Bight to Convey. — The covenant of right and power to convey and the covenant of seizin are called synonymous, yet they aro separate and independent covenants; for although if the vendor is seized in fee, he has power to convey, the converse does not hold; for one may have power to convey though not seized in fee. 
      
      If the vendor has not at the time good right to convey, the covenant is broken as soon as made; and an action lies, at once, without waiting for a disturbance.  And the breach, as in the covenant of seizin, may be assigned in terms as general as the covenant. 
      
      Quiet Enjoyment. — This is the “sweeping covenant” in English conveyances. It is an assurance against a defective title, as well as against any disturbance thereupon. By it the grantor stipulates to indemnify the purchaser at all events; and it is immaterial by what means, or by whose acts, the eviction, or disturbance takes places, so that such eviction or disturbance be lawful. 
         But it extends not to tortious evictions or interruptions, 
      
      In assigning a breach of this covenant, it is sufficient for the plaintiff to allege, that at the time, etc., A. B. had lawful right and title to the premises, and having such lawful right and title, entered and evicted him, without showing that the eviction was by legal process, or what title A. B. had: the allegation, that the party having lawful right and title entered, being tantamount to saying that he entered by lawful right and title, 
      
      Against Incumbrances. — This covenant, in English conveyances, follows that for quiet'enjoyment, and runs in these words: “And that 
         free and clear, and freely and clearly, and absolutely acquitted, exonerated, released, and discharged, or otherwise by him (the vendor), his heirs, executors, or administrators, at his or their own costs and charges, in all things, well and sufficiently protected, defended, saved harmless, and kept indemnified of, from, and against all and all manner of former and other gifts, grants, feoffments, leases, mortgages, bargains, sales, jointures, dowers, right and title of dower, uses, trusts, wills, entails, annuities, legacies, rents, arrears of rents, fines, issues, amerciaments, statutes, recognizances, judgments, executions, extents, suits, decrees, debts of record, debts to the king’s majesty, or any of his predecessors; sequestrations, estates, titles, troubles, liens, charges, and incumbrances whatsoever.” 
      
      
        And that free, etc., is construed in connection with the covenant for quiet enjoyment. It is not a covenant that the estate is free, and shall remain free from incumbrances; but that the purchaser shall enjoy it free from such incumbrances. It was the opinion of Lord Cowper,  that there was a difference between a covenant that the estate was free from incumbrances. and a covenant that the party should enjoy free from incumbrances. Hence it seems now to he the rule in England, that in order to justify legal proceedings on this covenant, it is requisite that an actual interruption, claim, or demand he made on the purchaser; for the chance alone of his being disturbed, and his liability to satisfy claimants, or in other words, the mere existence of outstanding incumbrances, unless they prevent entry and enjoyment, will not constitute an immediate breach, 
      
      For Further Assurance. — This covenant relates both to the title, and to the instrument of conveyance. It requires the vendor to perform all reasonable acts to secure the former, and to make good any defects in the latter. If he sells a had title and afterward himself acquires a good one, he shall convey it to his grantee. He may also be called upon to levy a fine, to remove the lien of a judgment, or other incumbrance, and in some cases to give up the title deeds, 
      
      As to the amount of "damages recoverable upon a breach of the modern covenants for title, there seems to be no case in England, where the point is much discussed. Where one covenanted that he was seized of Blackacre in fee simple, when in fact it was copyhold in fee; the count held covenant broken, • and directed the jury to give damages in their conscience, according to the rato at which the country valued fee simple more than copyhold land. 
         In Pomeroy v. Partington,  the consideration money and the costs of defending the ejectment seem to be regarded by the court and the bar as the proper rule; and Chancellor Kent is of opinion that when the personal covenants were introduced, as a substitute for the remedy on the voucher and warranty of charters, the established measure of compensation was not varied or affected.  Any great departure from the old rule would probably have shown itself in the English authorities before this time, 
      
      IN THE UNITED STATES.
      Seizin and Bight to Convey. — The anthorites cited in the casa to which this note is appended show, that the construction put upon these covenants in England has been followed in most of the United States.
      In Massachusetts, New Hampshire, and Ohio, a seizin in fact, whether by right or by wrong, is held to satisfy the covenant, 
         This rule seems, in some measure, to have grown out of the hardship, real or apparent, of permitting a grantee to recover back the consideration money and interest, while he, or his assignee, is enjoying a possession that by lapse of time may ripen into a perfect title. In Vermont, this hardship has been relieved by changing the rule of damages.  As where a grantee, after a quiet enjoyment of several years, conveyed, by deed of quit claim to a stranger, who entered and occupied till the adverse title was supposed to be barred by the act of limitations. Afterward, in a suit by the first grantee, the court held the covenant broken as soon as made, and so being a chose in action could not pass with the land into the hands of the second grantee, but they gave the plaintiff only nominal damages. A like principle is also recognized in North Carolina, 
      
      In Ohio, the covenant of seizin, where the possession passes, is held to he a real covenant, running with the land, and not broken till eviction; and that, therefore, where land is sold on execution against the first grantee, the right of action is in the purchaser on execution, and not in the administrator of tho first grantee, 
      
      These deviations from the general rule seem to leave a purchaser in much the same condition as we have seen him to be in under the ancient warrranty. In possession, with a bad title, unable to sell the land or to improve it, and yet without redress, till he who has the adverse title may choose to assert it And it is worthy of remark that the Supreme Court of New Hampshire in speaking of its departure from the general rule, says, “it has been too long settled in this state to be now questioned (and it is to be deeply regretted that it has been so settled).” (a)
      
      Quiet Enjoyment. — This covenant is not here, as in England, the main assurance of title,' but seems to be governed by the same general rules. It is Broken, only By eviction or some disturbance of the possession. 7 Wend. 281; 3 Dev. 200. A recovery in ejectment without execution is no Breach of it. 13 Johns. 236. Nor is a simple demand of possession By him who has title. 4 Dev. 46. Nor is a sale of the land to the grantee himself upon the foreclosure of a prior mortgage. 3 Johns. 471. But an entry By the covenantor himself, tortiously, and without title, is a Breach. 7 Johns. 376. So is actual possession taken under a Better title Before the execution of the deed containing the covenant. 3 Dev. 200. So is a decree in equity, directing the grantee to execute a deed and deliver possession to one who holds a prior right. 1 Dev. 413.
      Against Incumbrances. — See the case to which this note is appended and the cases there cited.
      . The covenant for further assurance is not in general use.
      "Warranty. — Our ancestors, who emigrated just about the time the modern covenants for title were coming into use in the mother country, and Before the warranty had Been entirely abandoned, seem to have Brought with them, Both the modern, covenants and the warranty; and while the former alone were soon found to Be a competent assurance of title in England, Both the warranty and the modern covenants continued to Be used in our early conveyances, and so have Both come down together to our own time. ¡
      It has already been seen, that in certain cases the warranty, at common law, was used as a personal covenant;  But there seems to be no instance in England, where a personal action has Been sustained upon it for an eviction or disturbance of the freehold. 
         In the United Slates, however, the warranty has been converted altogether into a personal covenant, and, like the covenant for quiet enjoyment in England, it furnishes a remedy as well against a defective title as against any disturbance thereupon. No instance is found in this country, where voucher, or warraniia, charice, has been sustained upon it. It is held to Be simply a personal covenant, that runs with the land, Binding on the personal representatives, and for a breach of which damages alone are recoverable, 
         This being an innovation uDon the common law, there has been no common standard of interpretation, and consequently some contrariety of sentiment is found to prevail in different states. There is room here for only a brief reference to a few leading cases.
      The covenant of warranty is not broken without eviction by paramount title; but eviction by judgment at law is not necessary; the tenant may voluntarily yield the possession to him who has better title. But he does it at his peril; and in a suit against the warrantor the burden of proof lies upon the plaintiff. 9 Cowen, 157; 4 Mass. 349; 15 Pick. 147; 5 Conn. 54; 5 Day, 282; N. Chip. 68; 3 Serg. & Rawle, 372.
      A judgment in ejectment is a sufficient breach without actual eviction; because the covenant of warranty goes to the title as well as to the possession, and the title being adjudged bad, the turning the grantee out of possession is but a ceremony, depending on the will of a stranger. And this rule holds good though the grantee, after the judgment in ejectment against him, buy in the outstanding title and continue his possession under it. 1 Aik. 233. And where a grantee, after judgment in ejectment, retains the possession under an act for the relief of occupying claimants, actual eviction is not necessary. 5 Ohio, 158. Where one made a mortgage in fee with warranty retaining the I possession, and afterward sold the same land to another who entered without ■ any knowledge of the mortgage, this is a sufficient eviction, though the mortgagee had never been in actual possession. 3 Fair. 499. If one sells land and gives the possession, and afterward, the first purchaser still being in possession sells the same land to another with warranty, the covenant is broken, and no other eviction need be shown. Martin & Yerger, 58. Where a habere facias possessionem is sued out, and the defendant thereupon yields up the possession without further compulsion, the eviction is sufficient. Hardin, 292. So it is if the 'defendant yields up the possession to a purchaser under a decree for a sale of the land. 4 Dana, 204. Whether taking water out of a brook to water a meadow, under an elder right, or, in like manner, diverting water from water-works, thereby rendering them useless, constitute a breach of the covenant of warranty, quære. 5 Conn. 497. In South Carolina, showing a paramount title in a third person is sufficient without any eviction. 1 McCord, 500; 2 Nott & McCord, 186. Where, at the date of a deed, a stranger is in adverse possession with the statute of limitations running in his favor, and the grantee, by his own laches, suffers such adverse possession to ripen into a perfect title, he has no remedy on the covenant of warranty; aliter, if the title by adverse possession was perfect at the date of the deed. 1 Aik. 150.
      Proof of a better title than that of the grantor, and that the grantee gave up the possession to the owner of such title, will support the allegation of eviction. 3 Penn. 419.
      
        On the other hand, it is held in Tennssee that there must he an actual execution of the writ of possession, or an actual yielding up of the possession in submission to the judgment. Martin & Yerger, 48. So in New Jersey, it is said there must he a disturbance in, or deprivation or cessation of, the possession, by the prosecution and operation of legal measures.” 4 Halst. 141.
      An eviction by legal process under an unexpired term for years is a sufficient breach. 9 Wend. 416. Or under a prior mortgage. 8 Pick. 547. And so is the delivery of seizin by the sheriff to the creditor in satisfaction of his execution. 4 Mass. 150, 512; 14 Mass. 143.
      Where a judgment is relied on as evidence of eviction, the plaintiff must show that the judgment was upon an elder and better title, or that his grantor was vouched in to defend. 2 Aik. 329. If a grantee gives notice to his grantor of the commencement of an ejectment against him, the grantor neglects to take upon himself the defense at his peril; and a recovery in such case is conclusive in an action on the covenant. And such notice may he by parol. 15 Wend. 425. Bronson, J., dissenting, who insisted the notice ought to he in writing, in analogy to the ancient writ of summons ad warrantimndum,. The same rule prevails When the notice is given by the grantee of the covenamtee. 10 Wend. 202; S. P., 3 Watts, 306; 3 Fair. 9. 
      
      If the eviction he by judgment of court, the record is the only evidence of it, and whether by default, or upon defense made, is immaterial, the record being evidence of the fact of eviction only, and not that it was by title paramount. 3 Bibb, 174; 4 Bibb, 4; 1 Marsh. 389. But if the warrantor had notice of the suit, the record is evidence of recovery by paramount title. 1 Marsh. 409 ; 3 Watts, 306.
      Heirs must all he made joint defendants in a suit on the ancestor’s covenant. Meigs, 138. 
         So in Meigs, 187, all the heirs of a grantee were made joint plaintiffs.
      A purchaser at sheriff’s sale, in case of eviction, can maintain an action in his own name for the breach. 3 Penn. 313 ; S. P., 3 Ohio, 220. Where covenants run with the land, if the land is assigned or conveyed before the covenants are broken, the assignee or grantee can alone bring the action of covenant to recover damages; but if the grantor or assignor is bound to indemnify the assignee or or grantee against such breach of covenant, then the assignor or grantor must bring the action. 14 Johns. 89. Contra, 5 Cowen, 137; 1 Conn. 244; 2 Penn. 514, where it is held to be immaterial, whether the assignee or grantee be indemnified or not. . And such assignee or grantee may sue any prior grantor or assignor. 2 Penn. 514. Or he may, at the same time, sue separate actions against each prior grantor, but can have only one satisfaction. 5 Ohio, 157. But an intermediate covenantee who has not been damnified can not sue a prior covenantor. 1 Conn. 244; 1 Dev. & Bat. 94. A dowress can not sue upon a covenant of warranty made to her husband. 7 Ohio, 111, pt. 2.
      In a declaration upon a covenant of warranty, it is necessary to allege substantially an eviction by title paramount; but no formal terms are prescribed in which the averment is to be made. 10 Wheat. 449; 4 Kent Com. 478, 4 ed. 
      
      There is a distinction between declaring by an assignee and against him. In the latter case, it is enough to say generally that the estate has come to the defendant by assignment, without oven specifying the different conveyances; whereas in the former, the plaintiff being privy to the mesne conveyances, must set them forth sufficiently to show the title vested in himself 1 Aik. 240. Nor is it necessary to describe the land evicted by metes and bounds. It is enough to say : “ Certain lands in the said deed particularly mentioned and specified.” 14 Johns. 372.
      It is not necessary to aver that the covenantor had notice of the suit by which the covenantee was evicted. 5 Ohio, 158; 5 Halst. 20. Nor that the title to the land had been tried. 1 Marsh. 390. Nor is it necessary to set out tho costs or counsel fees in the former suit; they are covered by the general claim of damages. 9 Wend. 416.
      The rules for assessing damages upon a breach of the covenant of warranty, and of the other covenants in common use, are found in the case to which this note is appended. See also 4 Kent Com. 475, 4 ed.
      Where a grantee is dispossessed by a term for years, the extent of that term, and the annual value, or the interest of the purchase money, with the costs and counsel fees in the prior suit, is the proper rule of damages. 9 Wend. 416. The allowance of costs by way of damages does not depend on the fact of notice by the covenantee to the covenantor of the suit by which the former was evicted. 2 Harrison, 301. If a grantee in the suit by which he is evicted, recovers a sum for his betterments, that sum is to be deducted from the consideration money and interest. D. Chip. 110; S. P., 5 Ohio, 159. Counsel fees, beyond those taxed in the fee bill, are not allowable. 3 Green, 3 13. They are, if the grantor be timely advised of the pendency of the suit and will not defend it. 3 Pair. 9. They are, at any rate. 23 Eng. Com. Law, 106.
    
    
      
       Co. Lit. 365, o.
    
    
      
       Hob. 3.
    
    
      
       Bracton Fol. 388.
    
    
      
       23 tit. Warrantia Chartæ. Ed. 3,12; Jac. Law Dic.
    
    
      
       Booth on Real Actions, 42.
    
    
      
       1 Reeves’ Com. Law, 443.
    
    
      
       1 Reeves’ Com. Law, 134.
    
    
      
       R. N. B. 135, B; Hob. 23.
    
    
      
       Booth on Real Actions, 240.
    
    
      
       Vin. Abg., tit. Warrantia Chartæ, (D).
    
    
      
       As if one in feoffs A. to liavo and to hold to him, his heirs and assigns, and A. jnfeofis B. and his heirs, and B. dies; in this case, the heir of B., as assignee to A., shall have the writ. So that heirs of assigns, and assignees .of assigns, and assignees of heirs, are within this word (assigns) Co. Lit. 384, b.
    
    
      
      
         2 Thos. Coke, 199, note (A) ; Sulliv. Lect. xii. 119.
    
    
      
       Bracton, Lib. 5, c. 13, sec. 3; 19 Hen. VI, 61; Godb. 151; Kent’s Com. 475, 4 ed.
    
    
      
       Thus, the plaintiff recovered the land, and no damages, because the place was amended by building. Damages of 40s. and no more was found by the assize, because the land is sown, and the house well amended, and so recouped the damages. Disseizin is done ad damnum, £9. The disseizor sows the land, which is worth £10. The assize gave the damage to £9. They shall be attainted per Cur. because they did not recoup the sowing of £10. If a disseisor fells trees and repairs the house with them, and assize be brought against him, the same shall be recouped in damages, because what was done was a commodity. Br. Damages, pl. 199 ; Vin. Ab., tit. Discount, and cases there cited; 2 Rand. 144.
    
    
      
       Vin. Ab., tit. Discount, 2 Rand. 144.
    
    
      
       F. N. B. 135.
    
    
      
       Com. Dig., tit. Guaranty; Co. Lit. 384 a, Mr. Butler’s note.
    
    
      
       Co. Lit. 389, a.
    
    
      
      
         2 Thos. Coke, 199, note (A); 1 Maule & Sel. 355 ; 4 Manle & Sel. 53.
    
    
      
       3 Pow. Con v. 205 ; 2 Bl. Com. 171.
    
    
      
       Burton on Real Property, 185.
    
    
      
       11 last, 641.
    
    
      
       Dy. 303, a; Cro. Jac. 304; 9 Co. 60, b ; Shep. Touch. 170; Platt on Covenants, 300.
    
    
      
       Kingdon v. Nottle, 1 Maule & Sel. 355.
    
    
      
       Kingdon v. Nottle, 4 Maule & Sel. 53.
    
    
      
      
         T. Raym. 14; Cro. Jac. 369 ; Platt on Covenants, 309.
    
    
      
       11 East, 642 ; 3 Lev. 46.
    
    
      
      
         Freem. 41; 5 Taunt. 426.
    
    
      
      
         9 Co. 60, b; Jenk. Cent. 305.
    
    
      
       1 Mod. 101; 11 East, 642; Platt on Covenants, 312.
    
    
      
      
         Thus, where the eviction took place under an act of confiscation of the State of New York, during the American revolution, Lord Mansfield, in 1790, would not suffer the question to bo argued before him, because it would lead to the discussion of improper topics, hut said that “the defendant does not coyehant against a rebellion, or a revolution, by an armed force. There is no color for it.” 3 Term, 584; 26 Eng. Com. Law, 400.
    
    
      
      
         4 Term, 517; 8 Term, 278.
    
    
      
      
         The pronoun is used emphatically. You shall enjoy the estate, and that free from in* cumbraneo. Sugd. Vend. 554, 6 ed,
    
    
      
       Platt on Covenants, 331.
    
    
      
       Platt on Covenants, 332.
    
    
      
       Gilb. 7 ; Platt on Covenants, 332.
    
    
      
      а) 2 Ch. Cas. 212; 2 P. Wms. 630 ; 16 Ves. 366 ; 5 Taunt. 427.
    
    
      
       Noy, 142; see 1 Maule & Sel. 364; 11 East, 633.
    
    
      
       3 Term, 678, note (a).
    
    
      
      
         4 Kent’s Com. 475, 4 ed.
    
    
      
       In a late case, 23 Eng. Com. Law, 106, 1832, a grantee compromised a suit against himself, paying £550. In an action against his grantor on a covenant for good title, he recovered as damages the £550, and the costs of the compromised suit, though he had given no lotice of that suit to the defondant.
    
    
      
      
         2 Mass. 437; 1 Fail. 177; 3 Ohio, 220, 307.
    
    
      
       2 Vt. 327.
    
    
      
       2 Dev. 30.
    
    
      
      
         3 Ohio, 220.
    
    
      
       1 N. H. 178. The insecurity of title to real estate, in the Virginia military district, is said to have given rise to a common practice there, of using no other covenant than the goneral warranty, on the ground that a grantor can not be mado liable on that covenant till actual eviction. The occupants of some large surveys in that district, who found themselves in quiet possession, hut without any title, and so could neither improve the lands nor sell them, mado application to the legislature of Ohio, and in 1815, a statute was passed, undertaking to give a grantee with a covenant of warranty a remedy before eviction. The act is said to have been so inartificially penned as to be incapablo of any reasonable construction. It was repealed in 1831. Ohas. L. 855, 1000; see 1 Ohio, 389; 2 Ohio, 346; 3 Ohio, 525.
    
    
      
      
         The language of Lord Hobart is this: “ This action of covenant will He, because that though tiro warranty was annexed to a freehold, yet the breach and impeaching was not of a freohold, hut of a chattel (that is to say) of a lease for years, for which there could neither bo avoucher, rebutter, nor warrantia chart, and, therefore, a real warranty is a covenant real, when the freehold is brought in question. But when a leaBe is in question, or any otlior 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 personal covenant to several en is and respects.” Hob. 4.
    
    
      
      q) The two eases in Brownl., cited in 3 Mass. 549, are not upon the covenant of warranty,
    
    
      
       4 Cent Com. 471, 4 ed., and cases there cited.
    
    
      
      
         By the civil law, by the law of France, and by the Louisianian codo, if a buyer, who is sued, fails to cite his vendor in warranty, the latter is not liable for the costs and damages resulting from defending the action. By the Spanish law, a buyer who fails to cite bis vendor in warranty, loses all rocourso on him. 4 Kent Com. 469, 4 ed.; Martin’s Louis. 356.
    
    
      
       Where thero are two parceners, they have moieties in the lands descended to them, yet they are both but ono heir, and one of them is not a moiety of an heir, but both of them are but unus hieres. Co. Lit. 163, b.
    
    
      
       Covenants which run with the land, are exceptions to the rule of the common law that choses in action can not he assigned. They can not be separated from the land and transferred without it, but they go with the land, as being annexed to tho estate, and hind the parties in respect to the privity of estate. But this is to he understood with tho qualification that the covenants will pass where the possession goes from one person to anothor by deed, and there is afterward a total failure of title, and a subsequent eviction. 4 Kent Com. 471, note b, 4 ed.; 21 Wend. 120.
    
    
      
       In 10 Wheat. 549, a broach assigned in these words was held good on demurrer: “That tho Baid O. had not a good and sufficient title to the said tract of land, and by reason thereof the said plaintiffs were ousted and dispossessed of the said premises by duo course of law.”
    
   Hitchcock, J.

In the consideration of this case we have been led to inquire whether the title of the plaintiff was defeated 880] *by a paramount legal right, or whether the mortgage from Ely to "Williams and others was a mere incumbrance upon the land, which the plaintiff might remove by payment, and look to -hisj covenantors for indemnity. If the former, then the plaintiff is entitled to recover upon his covenant of warranty, and in such case, the law is well settled in this state that the rule of damages is the consideration money paid and interest. At least such would be the rule where the whole land was lost to a purchaser by a paramount title. If but a part is lost, the damages must be commensurate with this loss, estimating the same according to the consid< eration actually paid. In the suit in chancery between Foote and Williams, determined in 1834, this court seem to have considered the claim of Williams not as a paramount legal title, but as an incumbrance upon the land, which might be removed by the present plaintiff, and decreed accordingly. In pursuance of this decree, this incumbrance was removed by the plaintiff, and he now seeks 331] to recover the ^amount paid to remove it under the covenant in his deed against incumbrances.

This claim is resisted by the defendant’s counsel, upon the ground that the covenant against incumbrances in the deed from Burnet and Corry to John P. Foote was a personal covenant, that it was broken as soon as made, if broken at all, and did not pass with the land to the present plaintiff. That the covenant of seizin has been generally, by courts, considered as a personal covenant, and not running with the land, is fully shown by the authorities cited. And in this respect the covenant against incumbrances is not dissimilar to that of seizin. So far as it respects this latter covenant, the question whether it is a real or personal covenant was beforo this court in the case of Backus v. McCoy, 3 Ohio, 211. Many of the authorities which are now cited were then examined by the court, and the case fully considered. After much deliberation it was decided that the covenant of seizin in a deed, when 332] the covenantor *is in possession claiming title, is a real covenant running with the land. But where the covenantor is not in possession, and the title is defective, it is broken as soon as made, and never attaches to the land, being in the nature of a personal covenant. It is true the plaintiff’s counsel questions the authority of this case, and claims"that it is unsustained by authority. It is admitted that there are authorities against the decision, and it is clear that there are authorities which go to sustain it. But if there were no such authorities, still we shall be disposed to abide by it so long as we believe it to be in accordance with the immutable principles of right and justice.

The same train of reasoning which led the court to this decision will lead to a similar result with respect to the covenant against incumbrances. This covenant, like “ the covenant of seizin, is made for the benefit of the grantee in respect to the land. It is not understood as a contract, in which the immediate parties are alone interested, but as intended for the security *of all subsequent grantees.” If the first grantee continues [333 in possession of the land while his title remains undisturbed, and conveys to a subsequent grantee, in whose time an outstanding incumbrance is enforced against the land, justice requires that this subsequent grantee should have the benefit of the covenant against incumbrances, to indemnify himself. We hold, therefore, in accordance with the decision in the case of Backus v. McCoy, that a covenant against incumbrances is a covenant running with the land until the incumbrances are removed. And, therefore, that the plaintiff is entitled in this case to recover ior the breach of such covenant.

The next question is as to the measure of damages, and upon this question we have had much difficulty. It is said, in the books, that the covenant against incumbrances is a contract of indemnity, and hence it is argued that the covenantee may recover to the extent of the amount he has paid to extinguish the incumbrance. If this be correct, then, upon this covenant, a *re- [334 covery to a much greater amount may be had than upon the covenant of warranty, which is over considered the principal covenant in a deed. In the case before us, the consideration money paid to Burnet and Corry for the land was $1,020. If the plaintiff had entirely lost the land by paramount title, all he could have recovered would have been this sum, together with interest. But he has not boen deprived entirely of the land. He has paid off an incumbrance amounting to $1,773.95. If in the present action he can recover this amount with interest, ho recovers more than ho would have done had he entirely lost the land. There would seem to be some inconsistency in this.

That in an action for the breach of a covenant against incumbrances, the measure of damage i's the amount paid in good faith to remove such incumbrances, is sustained by the following authorities : Delavergne v. Norris, 7 Johns. 358; Hall v. Dean, 13 Johns. 105 ; Leffingwell v. Elliott, 10 Pick. 204; Brooks v. Moody, 335] 20 Pick. 474; Prescott v. Truman, 4 Mass. *627. Many other cases might be cited to the same point, but it is unnecessary, as they are referred to in the argument of counsol. But in none of these cases does it appear that the amount paid to remove incumbrances exceeded the amount of consideration money, paid for the land.

Chancellor Kent, in his commentaries, 4 Kent Com. 476, 2 ed., says, “If the subsisting incumbrances absorb the value of the land, and the quiet enjoyment be disturbed by eviction by paramount title, the measure of damages is the same as under the covenants of seizin and warranty. The uniform rule is, to allow the consideration money, with interest and cost, and no more. The ultimate extent of the vendor’s responsibility, under all or any of the usual covenants of his deed, is the purchase money with interest.”

In seeking for adjudged cases we have found but one analogous to the case before us, and that is the case of Dumrick v. Lockwood, Í0 Wend. 142. In that ease the consideration paid was $125, and the enhanced value by reason of improvements was $1,000. A moiety of the premises had been sold by virtue of a pre-existingjudgment against the grantor. The action was fpr a breach of the covenant against incumbrances. The court hold that the grantee was entitled to recover only the consideration of the purchase of the portion lost, with interest and costs, and not the enhanced value in consequence of improvements. In giving the 336] opinion of the court, Chief Justice *Savage, alter reviewing all the authorities, in closing, says, “ Among all the cases which have been cited, there is none in our court, where the purchaser has been permitted to recover beyond the consideration money and interest and costs. There is none in Massachusetts where, under the covenant against incumbrances, the purchaser has recovered any more, though there the rule allows a recovery for the value at the time of eviction. All the reasoning of our judges goes to limit the responsibility of the grantor to the consideration, with interest and cost, and I am unwilling to go further, where the principle to be established may lead to greater injustice.”

After lull consideration, and careful examination, we have been led to the conclusion that the law is as laid down in this case. That the true measure of damages, in an action'for the breach of the covenant against incumbrances, is the amount paid to remove the incumbrance, with interest, provided the same do not exceed the purchase money and interest. But in no case can a purchaser recover greater damages for the breach of any of the ordinary covenants in his deed, than for a breach of the covenant of warranty.

Judgment will be entered in favor of the plaintiff, computing the damage upon this principle. Judgment for the plaintiff.  