
    Samuel H. Duncan, Silviah C. Duncan and James C. Wright vs. John Lane, Use of William Vick, executor of John Henderson.
    A vendee of land, who has received a deed with covenants of warranty of title, and been put in possession, cannot, when he is sued on the notes given for the purchase-money, set up the defence of failure of consideration, without an eviction.
    L., as administrator of S., sold a lot of ground to W., who subsequently resold it to L., and L. individually sold and conveyed it with covenants of warranty to D., and put D. in possession. Suit was instituted against D., on the notes given for the purchase-money, and he defended it on the ground, that the sale by L. as administrator, was irregular, and passed no title to W.; and the title was consequently still in the estate of L.’s intestate : Held, that whether the sale by L. as administrator, passed the title to W. or not, as D. derived title from L. individually, he stood in the attitude of an ordinary purchaser, who has taken a covenant of warranty, and been let into possession, and could not therefore set up failure of consideration without showing an eviction.
    The use of the words “ grant, bargain and sell,” in a deed containing a covenant of warranty of title, will not amount to, or constitute under our statute, a covenant of seizin.
    The case of Hoy Thorn v. Addison Taliaferro, cited and affirmed.
    ERROR from the circuit court of Warren county; Hon. George Goal ter, judge.
    This was an action of assumpsit, instituted in the circuit court of Warren county, to the April term thereof, in the year 1842, by John Lane, for the use of William Vick, executor of John Henderson against Lemuel H. Duncan, Silviah C. Duncan, and James 0. Wright. The declaration was founded on two promissory notes for the sum of twenty-two hundred dollars each, both dated the 2d day of December, 1837, and payable, the one on the 1st day of October, 1839, and the other on the 1st day of October, 1840, both drawn by Silviah C. Ross, (who was alleged to have been a feme sole, when the notes were made, and to have intermarried with Lemuel H. Duncan, between the date of the notes and the commencement of the suit,) and James C. Wright, in favor of John Lane. At the return term, the defendants pleaded the general issue. At the October term, 1844, the case was tried, and a verdict and judgment were rendered in favor of the plaintiff, for six thousand and six dollars, besides costs. The defendants then moved for a new trial, because; “1st. The verdict is against the law and evidence, and the instructions of the court. 2d. The court improperly rejected evidence of the defendants. 3d. The court improperly charged the law to the jury, and refused charges asked by the defendants which should have been given.” The. court overruled the motion, to which the defendants excepted,, and filed a bill of exceptions, setting out all the evidence; from which it appears that on the trial the plaintiff read to-the jury the notes sued on, and proved that since the execution of the notes, the defendant, Lemuel H. Duncan, intermarried with the defendant, Silviah C. Duncan, who, at the time the notes were executed, was Silviah C. Ross; and here rested his case. The defendants then read in evidence the answer of John Lane to a petition for a discovery ; which admitted that the notes sued on, together with one other note, were given in consideration of a lot, in square twelve, in the city of Yicks-burg, sold by respondent to Silviah C. Duncan, before' her intermarriage with Lemuel H. Duncan, and while she was Silviah C. Ross, and unmarried; respondent stated that he put Silviah C. in possession of the lot, and that she and her husband, Lemuel H., were still seized and possessed of the same; that Silviah C. Ross, at the time of the purchase, executed a deed of trust to James Bland, as trustee to secure the payment of the purchase-money, and that Bland, under the deed of trust had sold the lot to meet the first payment, and Lemuel H. Duncan became the purchaser. Respondent admitted that he, as administrator of one Shane, under' an order of the probate court, sold the lot to Elbridge G. Walker. He denied that Walker purchased the lot for him; but he admitted he told Walker at the time of the sale, that if he, Walker, should become the purchaser of the lot, at a sum less than six thousand dollars, and did not choose to keep it, he, respondent, would buy it from him; and he, respondent, did subsequently in his individual character buy the lot of Walker. The defendants then read a transcript from the records of the probate court of Warren county, showing the action of John Lane, as administrator of the estate of Samuel Shane, deceased, from which it appeared that at the November term, 1836, John Lane, suggested to the court, that it would be to the interest of the estate to sell certain real estate, including the lot in square twelve, sold to Silviah C. Ross, whereupon the court ordered citation to be issued, and notice to be published, &c.; that at the January term, 1847, the same property was ordered to be sold; and that at the April term, 1839, the administrator returned his report of the sale which was received, allowed and ordered to be confirmed. By the report, it appears that the lot abovemen-tioned, was sold on the 8th day of May, 1837, to Elbridge G. Walker, for the sum of twenty-six hundred dollars. The defendants then read a deed from Elbridge G. Walker, to John Lane, dated the 1st day of July, 1837, conveying the same, and one other lot, which was also purchased by him at the sale made by Lane, as administrator, on the 8th day of May, 1837, and for which he agreed to pay eight hundred and fifty dollars, in consideration of thirty-five hundred dollars. They then read a deed of trust, executed by Silviah C. Ross to James Bland, as trustee, conveying the lot abovenamed, in square twelve, in Yicksburg, to secure the payment of the two notes sued on, and one other note for the same amount, payable on the 1st day of October, 1838, and all in favor of John Lane, which deed of trust was dated the 2d day of December, 1837. They then read a deed, dated the 2d day of December, 1837, from John Lane and wife, to Silviah O. Ross, by which they “granted, bargained and sold” to her, the lot abovementioned, and covenanted to warrant and defend the title to the same. The defendants then called Elbridge G. Walker, as a witness, who testified, that he attended the sale made by Lane, as administrator of Samuel Shane, and purchased two lots, the lot in square twelve, in Yiclrsburg, and one other at the prices mentioned in the record, read from the probate court, to wit: thirty-four hundred and fifty dollars for the two; that after the sale, he offered to execute his notes for the purchase-money, but knowing that Lane, was liable for a large amount on account of Doctor Samuel Shane, and being willing that Lane should make what he could off of the property, witness proposed to let him have the lots bid off by witness, at the same prices they were struck, off to him, at; that Lane accepted his proposition, and he never paid any money, or executed any note, for the lots; that Lane paid him no money for them, or gave him any other consideration for them, than simply discharging him from all liability to Shane’s estate on account of his bids. Witness denied that he bought the lots at Lane’s request, or for Lane; he believed he heard Lane say at the time of the sale, that the lots were worth a good deal more than they sold for, but there never was any agreement at, or before the sale that he should purchase for Lane. He bought the lots for himself, and only agreed to let Lane have them on account of his, Lane’s, liabilities for Shane, and with the hope that Lane might in that manner save himself in part at least, for the losses sustained by him as Shane’s surety. At the time of the sale by Lane to Silviah C. Ross, she went into possession of the property, and remained in possession until the sale took place under the deed of trust. When her husband, Lemuel H. Duncan, became the purchaser, and he then held the possession, the buildings on the lot were destroyed by fire, since which time the lot had been vacant. Shane, died in 1836, leaving one child, which was taken to Maryland very soon after his death, and has remained there ever since. The defendants then called Henry Green, and offered to prove by him, that Lane was then insolvent, but the evidence being objected to, was ruled out by the court, and the defendants excepted. This was all the evidence offered on either side. Various instructions were then asked by both parties, some of which were given and some refused, but it is not deemed important to set out all or any of them here, as none of them were considered by this court. The defendants now prosecute this writ of error.
    
      Robert Hughes, for plaintiffs in error.
    1. The first inquiry is, did the sale by the administrator, &c. and conveyance to Walker, convey any title? The answer is, clearly not, because the requisitions of the law were not complied with in these particulars.
    1st. There were not sixty days between the day at which the suggestion was made in the probate court by the administrator and the time that the order of sale was made; the suggestion having been made on the 29th day of November, 1836, and the order of sale on the 26th day of January, 1837, only fifty-eight days afterwards. The statute requires that there should be sixty days between the application and order. See Laws of Miss. Nov. 1830, ch. 55, § 1, pub. of 1838, p. 319.
    2d. The statute requires that the court, when the suggestion is made, shall issue a citation, directing all persons in any manner interested, <fcc. “ to appear before the said court, at a day to be named, not less than sixty days after the time of the issuing such citation, to show cause,” &c. No such citation was issued, but the court ordered that all persons appear, &c. on the fourth Monday in January next thereafter; and between the time of the order and the return day there were but fifty-eight days.
    3d. The court, when the order of sale was made, did not take bond as required by the second section, of the statute.
    The result is, that the order of sale and all proceedings under it are void. See Laughman v. Thompson, 6 S. & M. 259. Having shown that the sale was void, it follows that no title was vested by the conveyance to Walker, and by Walker to Lane, and by Lane to Mrs. Ross.
    2. It will be insisted, however, on the other side, that it is not competent for Mrs. Ross, now Mrs. Duncan, to resist the payment of the purchase-money; being or having been in possession, without eviction, she must pay, and should she after-wards be evicted, sue on the warranty.
    
      To this we reply :
    That the estate was incumbered at the time of the conveyance, by the title outstanding in the heir of Shane. In the deed are the words “ grant, bargain and sell.”
    “ The words grant, bargain and sell, shall be adjudged an express covenant, &c. that the grantor was seized of an indefeasible estate in fee simple, freed from incumbrance done or suffered from the grantor, as also for quiet enjoyment,” &c. See Rev. Code, 458, § 32.
    This is an express covenant of seizin, and against incum-brances. If the covenantor be not seized in fee of the whole of the premises conveyed, but other persons are seized in fee of an undivided part of them, it is a breach of the covenant of seizin. Sedgwick v. Hollenbachr, 7 Johns. R. 376.
    A paramount title in a third person, or a public highway, or in the land, are held to be incumbrances within the meaning of the covenant. 4 Kent’s Com. 479 ; 2 Mass. R. 97; 4 Ibid. 627.
    So a judgment is an incumbrance, and a breach of a covenant in these words: “that the premises shall be purchased, discharged, and unincumbered of, and from all, &c. done or suffered by him.” Jackson v. Aldrich, 13 Johns. R. 106.
    A covenant of seizin if broken at all, must be so at the instant it is made. Abbott v. Allen, 14 J. R. 248; Greenby v. Wilcocks, 2 J. R. 1.
    There is, then, a breach of the covenant; what are the damages 1 The cases referred to show that where there is breach of the covenant against incumbrances, the plaintiff can only recover the nominal damages, unless he has paid off the incumbrances. This rule, however, does not apply to this case. This is a case where there is a breach of covenant of seizin, and the only criterion must be the price paid for the land.
    3. We do not seek to recover, but to avoid a recovery. Upon the covenant of warranty, we are considered as having paid, but cannot recover back except after eviction; eviction being a part of the title to recovery; not so here. We are entitled to recover for the breach of covenant, and the amount of recovery would be the amount paid, or for which judgment was ren» dered. In consequence of the insolvency of Lane, though we might obtain a judgment, the money cannot be obtained. In such a case, we look at it as a failure of consideration, because we have not the benefit of the security provided by the covenant.
    This question in equity has been decided in Kentucky. See Cummins v. Boyle, 1 J. J. Marsh. R. 483; Luckett et al. v. Triplett et al. 2 B. Mon. 40; Vance v. House, 5 Ibid. 540.
    
      William G. Thompson, for defendant in error.
    It is deemed wholly unnecessary to notice in the argument of this cause the greater portion of the testimony laid before the jury. It was clearly proven, that S. C. Ross took from Lane a deed of conveyance, with general warranty of title for the lot of ground, which was the consideration of the notes sued upon, and that Lane put her in possession. There was no proof of eviction. It is contended, that upon this evidence Lane was entitled to a judgment, and that the defendants could not defeat a recovery by proving he had no title. If in fact he has no title, the remedy is by action on the covenant in his deed, whenever the vendee is damaged by breach of that covenant. The court correctly refused to admit evidence of Lane’s insolvency. If that fact could avail the defendants, it is only in chancery. If a purchaser is allowed to set up that as a defence at all, in chancery before eviction, it is wholly on the common ground of bills of quia timet, which can have no place in actions at law. Whether or riot the court below decided correctly in respect to each and all of the instructions given and those refused, the verdict and judgment in the cause will be sustained, if it should appear from inspection of the whole record that right and justice have been done, according to the settled rules of law. If it appears from a view of the whole case, that the plaintiff below was entitled to his verdict and judgment, it would be a vain work to grant the defendants a new trial.
    The testimony in the record in relatipn to the estate of Shane, and the actings of Lane as the administrator of that estate, concerning the land which was the consideration of the notes sued on, is deemed wholly irrelevant; for the land was not sold to Mrs. Ross by Lane, as administrator of that estate. It was in no wise an administration sale. Lane did not pretend to be selling under a power. He claimed title in himself to the land, and his deed purports to convey the title that was in him. He had sold the land to Walker, under an order of the probate court, as administrator of Shane’s estate; and he afterwards purchased the land from Walker. The two transactions have no manner of connection, affecting the questions involved in this cause. He sold as administrator; he purchased for himself. He stood under his purchase from Walker in regard to the land as if he had never before had anything to do with the land. Under his purchase from Walker he claimed title in himself; and such title he conveyed to Mrs. Ross, and bound himself in a covenant of general warranty. In this state of facts, it is deemed wholly unnecessary to argue the question, whether the purchase by Walker at the administrator’s sale was valid ; for it was not the title and interest of Shane’s estate in the land, that Mrs. Ross contracted for and purchased; it was Lane’s individual and personal title and interest. The case of Frisbie v. Hoffnagle, 11 J. R. 50, relied upon for plaintiffs in error, has been overruled in New York. See 17 Wend. 188; 21 Ibid. 134; 25 Ibid. 116.
    
      William Thomson, on the same side.
    
      William Yerger, on the same side.
    It is admitted by the plaintiffs in error by their counsel, that the general rule of law is, where a party buys a tract of land of another, and takes from him a deed with covenants of warranty, the vendee cannot obtain relief for a failure of title, unless the vendor was guilty of fraud, or there has been an eviction. It is insisted, however, that the insolvency of the vendor also constitutes a defence to the notes given for the purchase-money where the title has failed.
    The counsel for the defendants in error deny that the insolvency of the vendor constitutes any ground of defence in a case so situated.
    
      This court has decided, that even in executory contracts, where the covenants are independent, even a court of equity will not relieve against notes given for the purchase-money, where there has been no fraud and no eviction. 5 Hqw. N. 544.
    Chancellor Kent lays down the rule to be, that if the party has not been evicted, and there be no ingredient of fraud in the case, the party must rely upon his covenants, both at law and in equity, and he lays down this rule without an exception. 2 Kent’s Com. 471, 473.
    Whatever relief a court of equity might be inclined to give upon a bill quia timet, properly framed, I am satisfied that no well considered case can be found, in which a court of law has ever given relief against notes for the purchase-money, on a failure of title, because of the insolvency of the vendor; and I trust that this court will not now make a new rule, creating new defences where none existed by the previous welbe'stablished doctrines of the courts. 2 Johns. Ch. N. 519.
    In the case at bar the plaintiffs in error were put into possession of the property, and still hold it without eviction. The contract is executed. The covenants on either part are totally independent, and no fraud has been shown, but on the contrary the finding of the jury has negatived the idea of fraud. Under such circumstances, this court must affirm the judgment below.
   Mr. Chief Justice ShaReey

delivered the opinion of the court.

This suit was brought by the defendant in error against the plaintiff in error on two promissory notes, which had been given by the wife of Duncan whilst she was a feme sole, for a lot in Vicksburg, which she purchased of Lane, who made a deed with general warranty, under which his vendor was let into possession, and has not been evicted. The defence set up is failure of consideration, arising from a defect in Lane’s title. It seems .that Lane had previously sold the same lot as administrator of one Shane. Walker became the purchaser at that sale, and afterwards conveyed to Lane.

It is insisted in the first place that the sale by Lane as administrator, was void because the directions of the statute were not complied with. It is also said that Walker purchased for Lane, and that the title of the estate was not divested, as it was a purchase by an administrator at his own sale. Walker states that he did not give his note or pay any money ; still he denies that he purchased for Lane, or under any previous agreement between them, except that Lane stated that the property was worth six thousand dollars, and he would be willing to take it of the purchaser at that price, if he did not wish to keep it.

On the trial the court refused to give certain instructions asked by the defendants’ counsel, and gave certain instructions asked by the plaintiff’s counsel, to all of which the defendants’ counsel excepted, and after verdict moved for a new trial.

The sale by Lane as administrator may be laid out of view in this case, and the charges asked and refused, and those given, to which exceptions were taken, were all in reference to that sale. We do not perceive any objection however to the charges given. It may be, and probably is true, that-Lane’s sale as administrator passed no title to his vendee. But all the cases in which such sales have been decided to be invalid, Were cases between the purchaser and the administrator, or his assignee, the sale by the administrator being the consideration. These plaintiffs in error were not purchasers at the administrator’s sale ; they derive title from Lane individually, who derived title from Walker. They stand in the attitude of an ordinary purchaser, who has taken a covenant of warranty, and been let into possession. They cannot set up failure of consideration without eviction. This doctrine has just been fully considered in the case of Hoy and Thorn v. Taliaferro, ante, 727, to which it is sufficient to refer. In the present case it is also insisted, that there was a covenant of seizin arising from the use of the words grant, bargain and sell.” That question was also considered in the case referred to, and to the authorities there cited, we will add the case of Frost v. Raymond, 2 Caines R. 188, and authorities there cited, to show that an express covenant does away the effect of all implied ones.

Judgment affirmed.  