
    Whitbeck against Cook and Wife.
    in assigning covenant for ment, contam- ™ ^"lanci* ^®st enÍT> anj? ex" pulsion from, or some actual disturbance in. the possession.
    It is not a breach of the covenants, that'the grantor was lawful owner of the land, was well seised, and had full power to convey, that part of the land was a public highway, and was used as such; a public highway being a mere easement, and the seisin, and right to convey, still continuing in the owner of the land over which it was laid out.
    Where a husband and wife execute a conveyance, in which they both covenant to the grantee, the wife cannot be joined with her husband in an action for a breach of the covenant, her acknowledgment having no further effect than to convey her interest in the land, and not binding her by the covenants contained in the deed.
    Where husband and wife are improperly joined, as defendants in an action, it seems, that if the plaintiff has a cause of action against the husband, he will be allowed Jo enter a noli prosequi^ as to the wifev
    This was an action of covenant, for the breach of the 'Covenants contained in a conveyance of land. The cause. was brought before the court on demurrer, on a case made after verdict, and on a motion in arrest of judgment. -
    The declaration stated, that by deed, bearing date the 5th of April, 1814, Philip and Clarissa Cook, the defendants, by the name and description of Philip Cook and Cla
      
      rissa Cook, his wife, in consideration of the sum of 8,093 dollars, and 25 cents, conveyed to the plaintiff, in fee, a certain piece, or parcel of land, in the town of Warren, in the county of Herkimer, containing 269 acres, three quarters, and four roods ; and that the said Philip and Clarissa, by the said deed, covenanted, 1. That they, at the time of the sealing the same, were the true and lawful owners of the premises, with the appurtenances; 2. And were lawfully seised in their own right of a perfect, absolute, and indefeasible estate of inheritance in the premises ; 3. And that they had, in themselves, good right, full power, and lawful anthority, to grant and convey the same ; 4. And, also, that the plaintiff, his heirs and assigns, should, and might, forever thereafter, peaceably have, hold, occupy, and possess the premises, free from hindrance or molestation, of any person, or persons, lawfully claiming the same. The plaintiff then assigned as breaches, 1. That the defendants were not, at the time of the sealing the deed, the true and lawful owners of eleven acres, two roods, and twenty perches of the land described and conveyed in the deed; 2. And were not lawfully seised, in their own right, &c. of, and in, ■eleven acres, two roods, and twenty perches, thereof; 3. And had not good right, &c. to grant and convey the said •eleven acres, two roods, and twenty perches ; 4. And that the plaintiff “ hath not been suffered to have, hold, occupy, -and possess eleven acres, two roods, and twenty perches of the said land and premises, the same being part and parcel of the said land and premises, so conveyed as aforesaid, free from the hindrance or molestation of any person or persons lawfully claiming the same ; but the said eleven acres, two roods, and twenty perches of the' said land, parcel of the said land and premises so conveyed, as aforesaid, were, at the time of the making the said indenture in writing, and for a long time before that, and ever since, have been a common and a public highway, agreeable to the laws and statutes of the state of New-York, and have, for all the time -aforesaid, been used, occupied, possessed, and enjoyed by the people of the state of New-York, as such common and public highway.”
    To this declaration the defendants pleaded, 1. Non est 
      
      factum. 2. To the first, second, and third breaches, that they were lawful owners, &c. and were lawfully seised, &c. and had, in themselves, good right, &c. pursuing the words of the breaches assigned by the plaintiff. To this plea the plaintiff replied, taking issue thereon.
    To the fourth breach the defendants demurred, and showed, for causes of demurrer, that it does not allege any eviction, disturbance, or molestation, in the enjoyment, possession, or occupation of the said eleven acres, two roods, and twenty perches; and that it is, in other respects, uncertain, informal, and insufficient, &c. The plaintiff joined in demurrer.
    The cause was tried before Mr. J. Platt, at the Herkimer circuit, in June, 1818. The deed declared upon was produced in evidence, and it appeared to be duly executed and acknowledged by both the defendants. It was admitted, that a part of the land conveyed was, as mentioned in the declaration, a public highway. The counsel for the defendants moved for a nonsuit, on account of the improper joinder of the wife, who, it was admitted, had no interest in the land, except a right of dower; but the motion was denied. A verdict was taken for the plaintiff, by consent, subject to the opinion of the court, on the three first breaches assigned in the declaration, and contingent damages were assessed on the fourth.
    The defendants moved in arrest of judgment, on the ground that the wife was not bound by the covenants contained in the deed, though acknowledged according to the statute; or if she was bound, then the declaration should have stated her acknowledgment.
    
      Talcot, for the defendants.
    1. In support of the demurrer to the fourth breach assigned in the declaration. The breach alleged is, that some part of the premises conveyed, was, and is, a public highway, and used as such. But to show a breach of the covenant for quiet enjoyment, the plaintiff should have alleged an entry by the plaintiff, or an eviction, or some actual disturbance in the possession. (Waldron v. M'Carty, 3 Johns. Rep. 471. Kortz v. Carpenter, 5 Johns. Rep. 120. Sedgwick v. Hallenback, 7 Johns. Rep. 380.)
    
      At the common law, there were two modes of taking advantage of a warranty; one by voucherand the other by the writ of warrantia chartas; but in neither case could the party recover, unless he was in possession, and had been evicted or disturbed. Since covenants have been introduced into conveyances the rule is the same. That the grantee cannot get into possession of his land, is no breach of the warranty. A fortiori, there is no breach of the covenant here, as the highway is a mere easement. (1 Saund. 322. a. note 2. Hob. 12.)
   [Thompson, Ch. J.

You need not argue this point further. It is settled, that there can be no breach of this covenant, unless there has been an eviction, or disturbance of the possession.}

2. As to the facts of the case. The existence of a public highway through the premises, was no evidence of a breach of the covenant of seisin; it could, therefore, be no measure of damages for the breaches of covenant, to be assessed by the jury at the trial. The original owner of the soil, in laying out a highway, gives merely the use of the land to the public. The ownership and seisin still remain in him, or his heirs or assigns. He may maintain trespass for any exclusive appropriation of it by another. (Cortelyou v. Van Brundt, 2 Johns. Rep. 357.) To maintain trespass, the plaintiff'must be in possession ; and seisin is the possession of a freehold. If the defendant, then, had the seisin, subject only to an easement or right of way over a part of the premises, it follows, that there has been no breach of this covenant.

Again; the plaintiff ought to have been nonsuited. The wife was not liable on the covenant, and could not, therefore, be joined in the action. Both defendants having pleaded jointly, there can be no judgment against the husband alone. This misjoinder of the wife, may be taken advantage of under the general issue. (1 Chitty Pl. 32. 45. 2 Vin. Abr. tit. Actions. Joinder. (D. d.) pl. 8.) There is an allegation of a contract made by both defendants, when, in fact, it is a contract by the husband alone.

3. The judgment must be ariested. The wife was not bound by the covenants in the deed. At .common law, the only mode in which a feme covert could pass her estate was by fine, or common recovery. But in this country, she may pass her estate, or bar herself of dower, by joining in the deed of conveyance with her husband. (Fowler v. Shearer, 7 Mass. Rep. 14—20. Our statute has provided, that she may pass her estate, by her deed, on a previous acknowledgment made by her, on a private examination before certain judges or officers. (1 N. R. L. 369.) The covenants in the deed are not necessary to pass the estate ; and though the wife may be estopped by her covenants, she is not answerable for a breach of them. (7 Mass. Rep. 291. Colcord v. Swan.)

If she could be liable at all on the covenant, it can only be when she has duly acknowledged her deed according to the statute; and that is a material fact, necessary to be averred in the declaration, in order to support the action. (2 Saund. 176. n. 3. Brook's Abr. Debt. pl. 198.)

If the wife is not to be considered in court, the plaintiff cannot recover, for the statute regulating proceedings as to joint debtors, does not apply to this case.

Ford, contra. There was no misjoinder of the wife. The husband alone was taken. The plea is non est factum by the husband, as to both defendants. The issue is, whether this is their deed. It is admitted that it is her deed, for the purpose of passing her estate. If it is her deed for any purpose, the issue on the part of the plaintiff is maintained. The declaration is supported. There is no variance between the allegation and the proof.

Next, as to the other pleas to the first, second and third breaches assigned; the defendants say, that they were lawfully seised, &c. If they cannot avail themselves of the coverture, under the general issue of non est factum, neither can they under these pleas. The facts stated in the fourth assignment of breaches, in the declaration, may be given in evidence to support the other breaches assigned. The existence of the public highway was a breach of the covenant,

that the defendants were seised of an absolute and indefeasypa estate of inheritance in fee simple in the premises. These words imply that they had the sole, exclusive, and uncontrolled dominion and enjoyment of the estate which they so conveyed. Suppose there had been an outstanding term of 900 years, would that not be an incumbrance, and a breach of the covenant ? To support an action on the covenant of seisin, it is not necessary to aver or prove an eviction. (Pollard v. Dwight, 4 Cranch Rep. 421. Bender v. Fromberger, 4 Dallas, 436. Duvall v. Craig, 2 Wheat. Rep. 45. 61.) If the grantor is not seised, the covenant is broken immediately. (Greenby & Kellogg v. Wilcocks, 2 Johns. Rep.) A pre-existing title in another, so as lo hinder the entry of the grantee, is equivalent to an eviction. A paramount title existing in another, is an incumbrance. (Prescott v. Trueman, 4 Mass. Rep. 627.) In Kellogg v. Ingersoll, (2 Mass. Rep. 97.) it was held by the Supreme Court of Massachusetts, that a public highway over the land conveyed was an incumbrance, and a breach of the covenant that the premises were free from incumbrances, &c. If the action cannot be maintained against the wife, it is supported against the husband, the party before the court. If the husband is bound by the covenants, and the action is supported as to him, then the judgment cannot be arrested as to him.

Talcot, in reply, said, that in the cases of Duval v. Craig, Prescott v. Trueman, and Kellogg v. Ingersoll, there were special covenants that the premises conveyed were, and should remain free from all incumbrances. There was no such covenant in the pleadings in this case. By the pleadings, judgment is demanded against both defendants. If the wife is not to be considered a party in court, then the objection in arrest is well founded.

Spencer, J.

delivered the opinion of the court. In this case, the defendants have demurred to the fourth breach assigned in the declaration. A motion has also been made in arrest of judgment; and the parties have submitted a third question, whether the plaintiff is entitled to recover, under the facts in the case, upon the covenants in the deed, that the defendants at the time of sealing the indenture, were the true and lawful owners of the premises conveyed, and were lawfully seised in their own right of a perfect, absolute, and indefeasible estate of inheritance, in fee simple, of and in the premises; and that they had good right, full power, and lawful authority to grant and convey the same. The facts are admitted to be, that the deed conveys a tract of land containing 269 acres and three quarters, eleven acres, two roods and twenty perches whereof, and included in the general boundaries, were at the time of executing the deed, for a long time before, and ever since have been, a common and public highway, agreeably to the laws of the state, and have been so used, possessed, and enjoyed as a public highway.

The fourth breach to which the demurrer is taken, is founded on another covenant in the same deed, for quiet enjoyment, and the breach is the same, as upon the other covenants, the existence of the higbtvay. The motion in arrest of judgment is founded on this, that a feme covert cannot be sued on a covenant contained in a deed, inasmuch as she is incapable, during coverture, to bind herself, by deed, to respond in damages.

The demurrer is well taken. It has been repeatedly decided in this court, that the covenant for quiet enjoyment extends to the possession only, and not to the title, and is broken only by an entry and expulsion from, or some actual disturbance in the possession. (3 Johns. Rep. 471. 5 Johns. Rep. 120.)

The statute authorizing and making valid a conveyance of land by a feme covert, who shall be duly examined privately and apart from her husband, before some proper officer, and who shall, on such examination, acknowledge that she executed such deed freely, without any fear or compulsion of her husband, alters the common law no further than merely to enable the feme covert to convey her interest in the land intended to be conveyed; it is, in that respect, a substitute for levying a fine ; but beyond that, and as regards collateral covenants, the rule of the common law prevails, and a feme covert is not bound by such covenants.

The pincipal question relates to the supposed breaches of the covenants, that the defendants were lawful owners of the whole tract, including the road, that they were seised, &c. and had full power to convey, &c.

It must strike the mind with surprise, that a person who purchases a farm, through which a public road runs at the time of purchase, and had so run long before, who must be presumed to have known of the existence of the road, and who chooses to have it included in his purchase, shall turn round on his grantor, and complain that the general covenants in the deed have been broken, by the existence of what he saw when he purchased, and what must have enhanced the value of the farm. It is hazarding little to say, that such an attempt is unjust and inequitable, and contrary to the universal understanding of both vendors and purchasers. If it could succeed, a flood-gate of litigation would be opened, and for many years to come, this kind of action would abound. These are serious considerations, and this court ought, if it can, consistently with law, to check the attempt in the bud.

We have, after the most mature consideration, in the case of Jackson, ex dem. Yates and others, v. Hathaway, decided, that the existence of a road through a person’s land was a mere easement; that his fee and title to it, subject to the casement, existed in full vigour, and I hat on the disuse of the road, he had a right to maintain an ejectment to recover possession. This decision then establishes, that the owner of the soil is the lawful owner; that he is seised, and has power to convey. This being so, the covenants contained in the deed under consideration are not broken.

The case of Kellogg v. Ingersoll, (2 Mass. Rep.) has been cited, to show that the existence of a town road, is a breach of a covenant against incumbrances. The first answer to that case is, that the plaintiff here counts on no such covenant, and the second is, that we should choose to consider the point further, before we assented to the doctrine of that case.

If the plaintiff had a right to recover, probably, we would allow him to enter a noli prosequi, as against the wife, and >take judgment against the husband ; but believing the plaintiff not entitled to recover, the defendants must have judgment.

Judgment for the defendants. 
      
       Vide Jackson, ex dem. Woodruff and others, v. Gillchrist, ante, p. 89. and Van Buren, arguendo, p 95.
     
      
      
         In Greenby and another v. Wilcocks, the plaintiffs were administrators of Kellogg, to whom the land was conveyed by Hardenbergh, who was possessed of the premises under a deed from Pollock, the grantee of the defendants, who conveyed the lands with the usual covenants of seisin, &c., for the breach of which the action was brought; and the court held, (Livingston, J. dissenting) that there being a total defect of title in the defendants when they conveyed to Pollock, the covenants were broken, as soon as they were made, and being choses in action which could not be assigned at common law, the plaintiffs could not sustain the action, though the intestate was evicted, in his life time. In Hamilton and others v. Wilson, (4 Johns. Rep. 72.) an action was brought by the heirs of J. H. against the defendant, for a breach of the covenant of seisin made by the defendant to their ancestor; and the breach was assigned generally. It was moved, in arrest of judgment, that the covenant, if broken at all, was broken as soon as it was made, and did hot descend with the land to the heir; and that, therefore, the plaintiffs could not maintain the action; but that the suit should have been brought by the personal representatives of J. Hf And the court held, that the heirs could not support the action, and the judgment was arrested. In Kingdon v. Nottle, (1 Maule & Selwyn's Rep. 355.) the plaintiff* brought an action, as executrix of the grantee, for a breach of the covenants of seisin, &c, made by the defendant to the testator, and assigned breaches generally, negativing the words of the covenant; and, on special demurrer, the declaration was held bad; and that the executrix could not maintain an action, without showing some special damage to the testator in his life time, or that she had an interest in the land; for if the executrix was allowed to recover, it must be to the full amount of the damages for the defect of title; and in that- case, the recovery would bar the heir of his action. That these were real covenants which run with the land and go to the assignee of the land, or descend to the Heir, andmust be taken advantage of by him alone. That the testator might have sued in his life time ; but not having done so, the covenant and the right to sue thereon, devolved with the estate upon the heir; and it was distinguished from the case of Lucy v. Livingston, (2 Lev. 26. 1 Vent. 175. S. C.) where there was an actual damage accruing to the testator, in his life time, by his eviction. An action was, afterwards, brought by Kingdon, as devisee in fee, against Nottle, (4 Maule & Selwyn, 53.) for a breach of the same covenants, and thei*e was a demurrer to the declaration, because the supposed breaches were committed in the life time of the testator, before the plaintiff had any interest in the premises, and because it did not appear from the declaration that the plaintiff, since the death of the testator, had been interrupted or disturbed in $le possession, or sustained any damages, &c.; but it was held that the action was maintainable. Lord Ellenborougk said, that though according to the letter, the breach was in the testator’s life time; yet, according to the spirit, the substantial breach was in the time of the devisee, who had thereby lost the fruit of the covenant, in not being able to dispose of the land. That the covenant passed with the land to the devisee, and had been broken in the time of the devisee; -for so long as the defendant had not a good title, there was a continuing breach-; that it was not like a covenant to do an act of solitary performance, which not being done, the covenant is broken once for all, but is in the nature of a covenant to do a thing toties yuoiie$,3.s the exigency of the case may require. Dampier, J, said it was a covenant which runs with the land; but if it could be broken but once, and ceased eo instanti that it was broken, how could it be a covenant which runs with the land? So, in King v. Jones and another, (5 Taunt. 418.) which, was an action brought by the heir of a grantee against the executors t)f the grantor, for a breach of the covenant for further assurance, the ancestor had, in his life time, requested his grantor to levy a fme, which was not done, and after the death of the ancestor, the heir was evicted; and it was held by the court of C. B. that the heir might maintain the action; for though the breach was in the life time of the ancestor who might have sued, yet it was a breach, the ultimate or consequential damages of which were sustained by the heir.
     
      
       Ante, p. 447.
     
      
      
         Vide Peck v. Smith, 1 Day's Connec. Rep. 103.
     