
    James S. Weems v. Mahala McCaughan.
    !) The covenants raised by land, from the use of particular words in the deed, Í are only intended to be operative when the parties themselves have omitted \ to insert covenants; where the grantor does insert covenants, they consti-i tute the extent of his liability. A deed, therefore, which contains the words \ grant, bargain, and sell, (which words the statute gives a certain construction to,) but concludes with an express covenant of warranty, imposes no further liability on the grantor than is contained in his express covenant.
    In error from the circuit court of Smith county: Hon. Thomas A. Willis, judge.
    Mahala McCaughan, administrator of James L. McCaughan, deceased, sued James S. Weems in covenant in these words: “For that whereas the said defendant, in the lifetime of the said James L. McCaughan, together with Caroline M. Weems, wife of said defendant, on, &c. at, &c. in the county aforesaid, by a certain indenture then and there made between said defendant and his wife of the first part, and the said James L. McCaughan of the other part, (of which said indenture proferí was then made) by which said indenture it was witnessed, that in consideration of the sum of one thousand dollars to the said James S. Weems and wife paid, the said James S. Weems and wife did grant, bargain, sell, and convey unto the said James L. McCaughan, deceased, and his heirs and assigns, the following described land: (the description followed.) To have and to hold the same unto the said James L. McCaug-han, his heirs and assigns forever. And the said plaintiff avers that neither the said James S. Weems nor his wife were seised of an indefeasible estate in fee simple freed from incum-brances done and suffered by the said James S. Weems or the said Caroline M. Weems, in and to said above-described lands, at the time of the sealing and delivery of said mentioned indenture, to wit, &c.; to the damage, &c.
    
      “And whereas, also, said defendant in the lifetime of said James L. McCaughan, to wit, &c. made his certain deed in writing, sealed with his seal, and to the court now here shown, which said deed is in the words following, to wit: ‘ This indenture made and entered into this 24th day of April, 1839, between James S. Weems and Caroline, his wife, of the first part, and James L. McCaughan of the other part, both parties of Smith county, state of Mississippi, witnesseth, that the said James S. Weems and Caroline his wife, for and in consideration of one thousand dollars to them in hand paid, the receipt of which is hereby acknowledged, have granted, bargained, and sold, and by these presents do grant, bargain airdjspN ^nd convey unto the said James L. McCaughan, his he^ir,'- piid assigns, the following described land: (here follows a description thereof.) To have and to hold with all and singular the hereditaments and appurtenances to him, the said James L. McCaughan, his heirs and assigns forever from us, our heirs and assigns. And we, the said James S. Weems, and Caroline his wife, do hereby, and will finer or war-tut and defend the right and title of the above-conveyed land to him, the said James L. McCaughan, his heirs and assigns, and against the title, claim, or demand of all and every person whomsoever claiming, or to claim the same, in any way whatever, &c. And said plaintiff avers, that at the time of sealing the said deed, to wit, &c. the said James S. Weems was not seised of an estate in fee simple in and to the lands in said deed mentioned, to the damage, &c., concluding in the ordinary way.
    The defendant below demurred, and the court overruled his demurrer; he then plead, but it is not deemed necessary to take further notice of the proceedings below. The court rendered judgment against Weems, and he prosecuted this writ of error.
    
      W. P. Harris, for plaintiff in error.
    1. Admitting the right of the plaintiff below to sue upon the covenants declared on, she could not sustain the action without averring and proving a breach in the lifetime of the intestate, from which actual damage resulted. In the case of Kingdom, v. Notile, 1 Maulé & Selwyn, 355, an executor brought an action on the covenant of the grantor, that he was seised in fee of the estate conveyed, without alleging actual damage to the intestate, and the court held that the action could not be sustained. The principle is to be found in 1 Chit. Pi. 22, and is also recognized in the case of King v. Jones, 5 Taunt. 418. These cases decide that such a covenant descends with the land to the heir.
    It is true, that the covenant of seisin at common law did not require eviction to entitle the grantee to bring his action. But although the declaration is founded upon such a covenant, it is not contained in the deed recited, either by implication or express words.
    Since the act How. & Hutch. Dig. 349, sec. 32, no covenants can be raised by implj-CaTiVm from the words of a deed except such as are implied in the •'words grant, bargain, and sell. Our statute is an exact copy of the' -.act of Pennsylvania, passed in 1715, which had received a judicial interpretation before our statute was enacted, and such was the effect given to it.
    The language of the statute has been held to mean only that the grantor has done no act to incumber or defe.at the estate granted, 2 Bin. 95; and this construction received the sanction of Chancellor Kent. 4 Kent’s Com. 473. In assigning a breach under this construction of the act, it is not sufficient to say that the grantor “ was not seised of an indefeasible estate in fee, free from incumbrances,” or “that he was not seised of an estate in fee simple.” It should be averred that he had created an incum-brance, or that he had done some act by which the estate might be defeated. The fact, that the grantor was not seised of an indefeasible estate in fee, or that an incumbrance existed, does not entitle the grantee to sue. In order to entitle him to his action, the act which rendered the estate defeasible must have been done, or the incumbrance created by the grantor himself. And if this was necessary to entitle the plaintiff to his action, the omission to aver it in her declaration is fatal.
    2. In another view of this case, the declaration is bad, the deed is made part of the declaration, and contains an express covenant of general warranty. And it is a settled principle, that covenants raised by the law yield to the covenants made by the parties. In a case similar in many respects to the present, Vanderkarr v. Vanderkarr, 11 Johns. R. 122, the court held that where the deed contained express covenants of general warranty of title, the party must sue upon them and allege and prove eviction. Brown v. Smith, 5 How. 387, is to the same effect; and it is upon the principle that when the parties themselves have expressed the extent to which they intend to be bound, the law will not extend or vary their responsibility. 4 Cruise Dig. 381; sec. 19 and 394.
    Heyfron, for defendant in error.
    Our statute law H. & H. 349, sect. 32, makes the words grant, bargain, and sell, in a deed of conveyance, amount to an express covenant that the grantor was seised of an indefeasible estate in fee simple, free from incumbrances done or suffered by him, &c.. and that the grantee, or his administrator, may assign breaches as if such covenants were expressly inserted, &c. The legal effect of the deed declared upon, is precisely the same as if said covenant of seisin was expressly inserted therein, and set out on the record. The first objection, that the administra-trix cannot assign breaches on a covenant of seizin, is, we think, not true even by the common law. It is a personal covenant, and the damages upon its breach go to the personal representative. 4 Kent’s Com. 470. But the statute authorizes the assignment.
    In answer to the last objection to the declaration, we say it is not necessary to aver or prove an eviction on breach of covenant of seisin. Such a covenant is broken when the deed is executed, if the grantor was not then seised. To require grantee to enter when grantor was not seised so that eviction might take place, would be requiring him to commit trespass before he could recover. See Pollard & Puckett v. Dwight et al. 4 Cranch, 105.
    2. It is contended by plaintiff’s counsel, that the statute H. & H. 349, sect. 32, only means, that grantor has done no act to incumber or defeat the estate granted; and to justify the assertion, he quotes 2 Binney, 95, and 4 Kent’s Com. 473. Chancellor Kent gives no opinion of his own on such statutes, but merely refers to the casein 2 Binney, and according to that case we think it means that the grantor was seised of an estate in fee, free from any incumbrance by him created; it does not amount to a covenant against all incumbrances. A man may be seised of an indefeasible estate in fee, which may be incumbered ; now if such an incumbrance is not done or suffered by the grantor, the covenant does not extend to it. But it is admitted by all, that if the grantor uses the words, grant, bargain and sell in the deed, and the estate is at all, or in the very slightest manner incumbered by any act of his, there is a breach of covenant. Can it then be contended, that the fact of his not being seised does not amount to a breach? Would the legislature have been so precise about the most trifling incumbrance, and not regard title or seisin ? In the first count of the declaration, the breach is alleged in the precise negative of the affirmative language of the statute.
    According to 2 Nott & McCord, 186, the second count is good by the common law; it contains a similar covenant, and avers as a breach, that Weems was not seised in fee. It was not necessary according to the above case to aver an eviction.
    We also think that the following words in the deed, set out in the second count, amount to a covenant of seisin by the common law : “ doth hereby and will forever warrant and defend the right and tille’'1 “against the title, claim or demand of all and every person whomsoever, claiming or to claim the same in any way whatever.” He does not warrant the premises or the land, but the title, which always means a good legal title.
   Mr. Chief Justice ShaRKey

delivered the opinion of the court.

The defendant in error instituted this action in the court below on the covenants in a deed of conveyance. The questions arise out of the defendant's demurrer to the declaration, and the plaintiff’s demurrer to the plea of the defendant which was filed when the demurrer was overruled.

The declaration seems to be founded on the breach of a covenant of seisin. The deed contains no such special covenant, but the implied covenant, resulting from the use of the words “ grant, bargain, sell,” is relied on. The deed contains an express warranty of title. The declaration contains two counts. In the first the covenant is laid as having arisen from the words grant, bargain, sell; the breach is, that the grantor was not seised, and it concludes to the damage of the plaintiff as admin-istratrix. The second count sets out the deed, assigns the same breach, and concludes in the same way.

If the grantor had no title, as is averred, then the covenant was broken as soon as made, and the right of action accrued of course to McCaughan in his lifetime.

Without noticing the several grounds taken by the plaintiff in error, the case may rest upon one, as altogether sufficient to reverse the judgment. The deed contains an express covenant of warranty, which does away any implied covenant. The covenants raised by law from the use of particular words in the deed, are only intended to be operative when the parties themselves have omitted to insert covenants. But when the party declares how far he will be bound to warrant, that is the extent of his covenant. The law will not hold him bound beyond it. Cruise on Real Property, title Deed, 449. Vanderkarr v. Vanderkarr, 11 Johns. 122. Although the defendant did not set out the deed in the demurrer, yet it was set out at length in the second count, and this is sufficient, inasmuch as it is manifest that the two counts are on the same instrument. The demurrer to the declaration ought therefore to have been sustained, for which error the judgment must be reversed, and the cause remanded.  