
    Edward Wade v. James M. Comstock, administrator of Stephen B. Comstock, deceased.
    C. having a perfect title to a tract of land in 1836, sold and conveyed the same with covenant of general warranty, to R. and W., who neglected to have the deed recorded. In 1845, said tract was seized in execution and sold as the property of C. to. D., who had no notice of the unrecorded deed ; and C., in 1846, executed a quitclaim with special warranty, and for the consideration of ten dollars, to D. for said tract and two others which had been purchased by D. The deeds of the sheriff, and of C. to D. were all recorded before the deed of C. to R. and W. Held, that such subsequent conveyance by C.waa not a breach of the covenant of warranty in the deed to R. and W., and their remedy, if any, is an action for the damages actually sustained, or, as the case may be, for money paid to the use of C.
    Civil action. Reserved in tbe district court of Lucas county.
    This action is brought to recover damages for an alleged breach of the covenant of warranty in a deed from Stephen B. Comstock, in his lifetime, to the plaintiff, and is submitted upon an agreed statement of facts. These facts, so far as they are material for the determination of the question presented, are as follows:
    On the 30th day of May, 1836, Stephen B. Comstock, having a perfect title at law and in equity to one undivided sixteenth part of river tract 5 in the U. S. R. of twelve miles square, in Lucas county, containing one hundred and twenty-nine acres, conveyed the same, with other lands, by deed duly executed with covenant of warranty to Raymond and Wade, for a consideration of $10,000. This deed was not recorded until the 3d day of June, 1853.
    At the July term, 1838, of the court of common pleas of Lucas county, Willard J. Daniels recovered judgment against Stephen B. Comstock for $4,088 87, and costs. This judgment was kept in full force, and on the 15th day of March, 1845, an execution was issued upon it and levied on an undivided nine acres in tract 5. Under this execution the land levied upon was sold to Russell C. Daniels for $216. This sale was confirmed at the July term, 1845, of .said court, and a deed executed by the sheriff to Daniels on the 6th of September, 1845, and recorded in the records of the county on the 9th of the same month.
    At the April term, 1838, of the same court, William P Greene and others recovered a judgment against Stephen B. Comstock for $23,367 35, and on the 11th day of October, 1845, the judgment being in full force, an execution was issued upon it, and on the same day levied upon an undivided eight acres in said tract 5. The land included in this last levy was sold, under the execution, to Russell C. Daniels for $213 34, and the sale confirmed at the November term, 1845, of said court. On the 21st November, 1845, the sheriff executed to the purchaser a deed for the premises so sold, which was recorded on the 28th day of January, 1848.
    On the 24th day of December, 1846, Stephen B. Comstock executed to Russell C. Daniels a deed of release for an undivided eighth part of said tract 5, for the consideration of ten dollars expressed in the deed, and covenanted that the title so conveyed was clear, free a.nd unincumbered by any acts of Ms own.
    The question presented is whether the facts as agreed upon, show a breach of the covenant of warranty in the deed from Comstock to Raymond and Wade.
    
      Sill & Pratt for plaintiff.
    I. The first question which we come to, is, what, between the parties, was the remaining force and effect of the covenant to warrant and defend, in the deed to Raymond and Wade, after the six months in which it should have been recorded ?
    1. We maintain that a deed, though unrecorded, as between grantor and grantee, is a perfect conveyance of the premises granted. The recording is no part of the execution of the deed, and except in the particular case provided for by the statute, it is just as effective without as with the record. Swan’s Stat. 310, sec. 7, 8; Lessee of Irwin v. Smith, 17 Ohio Rep. 226, 234, 235. A deed not acknowledged, or recorded, is good against the grantor and his heirs. Lawry v 
      
      Williams, 13 Maine, 281. The registry acts only operate upon the legal title and leave equities untouched. The omission to record the deed does not impair the grantee’s equity. Lord Hardwicke in Le Neve v. Le Neve, 3 Atk. 646; Morton v. Robard, 4 Dana’s (Ky.) Rep. 258; Vance v. McNairy, 3 Yerger, 711; Shields v. Mitchell, 10 ibid. 1; Morris v. Ford, 4 Dev. Rep. 418; Jackson v. Burgott, 10 Johns. 457.
    2. The covenant to warrant and defend looks to the future; it is for a sufficient consideration, and as between parties, it might exist entirely independent of any grant from one of them to the other. It receives no additional force or vitality from the act providing for the recording of deeds; but binds the covenantor and vests and preserves a right of action in the covenantee with no restriction as to time, other than the statute of limitations. Not so with the granting clause of the deed. That needs to be recorded for the protection of the vendee as against dishonest grantors and subsequent innocent purchasers. We insist that the record shows a binding and valid covenant from the decedent to the plaintiff, and that there is nothing to defeat this action, if the court find that the admitted covenant has not been kept and performed by the covenantor. But there has been an eviction.
    3. There has been an eviction in fact (averred in the petition and not responded to by the answer), caused by the deed of December 24,1846, made by Stephen B. Comstock to Russell C. Daniels; and this was an eviction by an “ elder title,” by construction of law. Curtis v. Deering, 12 Maine, 501.
    4. An eviction by process of law, in a case like the one now before the court is not necessary, nor is it necessary that the plaintiff or his grantee should have been actually and forcibly ousted. A surrender or yielding up of possession to title that is clearly and legally irresistible, is an ouster in pais, and is a sufficient eviction to sustain an action on the covenant. Hamilton v. Cutts, 4 Mass. 350; Stone v. Hooker, 9 Cowen, 154, 157; Clarke v. McAnnulty, 3 Serg. & Rawle, 364, 372; Greenvault v. Davis, 4 Hill, 646; Leary v. Dunham, 4 Geo. 606; Beebee v. Swartout, 3 Gilman, 184; Ferris v. Harshea, Martin & Yerg. 56; Coble v. Welborne, 2 Devereaux, 289; 
      Grist v. Hodges, 3 Id. 200; Booth v. Starr, 5 Day, 282; Withers v. Codwise, reported in Banks v. Walker, 3 Sandf. Ch. Rep. 350; 3 Penn. 419.
    5. Kindred to the points last discussed and illustrative of the principles there contended for, are the decisions in cases of constructive eviction.
    
    In Duvall v. Craig, 2 Wheat. 45, the court say (Story, J., announcing the opinion), “If the grantee be unable to obtain the possession in consequence of an existing possession, or seizin, by a person claiming and holding under an elder title, this would certainly be equivalent to an eviction and a breach of the covenant.”
    We claim it as sound law that with respect to wild, or uncultivated land, as to which there is no proof of actual occupancy, the title would draw after it the possession. Upon such facts alone, whoever should acquire a valid deed of the land, Avould, by the mere transfer of the title, hold a constructive possession. And in this case, if we waive the point of possession and eviction, as settled by the express averments of the petition, not denied by the answer, and submit the case upon the facts in the agreed statement alone, we contend that even then a constructive possession in Raymond and Wade, and their assigns, successively, is made out, and that the creating of a paramount title in Daniels by Com-stock’s deed to him, worked, eo instanti, a constructive possession in Daniels, and a constructive eviction of the plaintiff and his assigns. Curtis v. Deering, 12 Maine, 501; Grist v. Hodges, 3 Devereaux, 200; Phelps v. Sawyer, 1 Aiken, 158; Park v. Bates, 12 Verm. 387; Loomis v. Bedel, 11 N. H. 74; Proprietors of Kennebec v. Call, 1 Mass. 484; Mather v. Trinity Church, 3 S. & R. 514.
    As between parties claiming by title the possession would, of course, follow the better title. Clark’s lessee v. Courtney, 5 Peters, 354.
    6. The rule as to quiet enjoyment does not apply in this case. This is not a suit upon a covenant for quiet enjoyment, which relates peculiarly to the possession of land. A breach of the covenant of warranty goes to the title as well as to the possession, and is broken by the creating a paramount title of such a nature as to draw after it the immediate possession, and in such case an actual eviction is not required. 1 Aikin (Vt.), 233; Ferris v. Harshea, Martin & Yerger, 58; Waldron v. McCarty, 3 Johns. 473; Tuite v. Miller, 5 West. Law Jour. 413, a case decided by the old supreme court on the circuit.
    7. We deny the doctrine that the warrantor is not responsible for the influence of his acts upon the possession and state of the title, after the title and possession have once passed from him. To protect him, while it protects the grantee, the law holds that a deed of grant, with warranty, creates an es-topple, binding not merely the person of the grantor, but also binding his contingent and after acquired interest in the land. Davis v. Hayden, 7 Mass. 257: Dart v. Dart, 7 Conn. 256; Jackson v. Wright, 14 Johns. 189; Jackson v. Hubbel, 1 Cowen, 616; Baxter v. Bradbury, 2 Maine, 263; Pike v. Golvin, 29 Maine, 185; Cole v. Lee, 30 Maine, 392; Terrett v. Taylor, 9 Cranch, 43; Mason v. Muncaster, 9 Wheaton, 445; Lawry v. Williams, 13 Maine, 281; Bond’s lessee v. Swearingen, 1 Ohio Rep. 395, 412; Allen’s lessee v. Parish, 3 Ohio Rep. 107, 134; Douglass v. Scott, 5 Ohio Rep. 194, 197; Bond’s lessee v. Longworth, 11 Ohio Rep. 235; Douglass v. Scott, 5 Ohio Rep. 198; Somes v. Skinner, 3 Pick. 52; Barton’s lessee v. Morris, 15 Ohio Rep. 408, 428; Salmond v. Price, 13 Ohio Rep. 368, 400; Gray’s administrator v. Allen, 14 Ohio Rep. 58, 71; Bohart v. Atkinson, 14 Ohio Rep. 228, 239.
    A covenant to warrant and defend precludes the grantor and all his heirs and assigns from claiming the land. Coke Litt. 365a, 3845; Stewart v. West, 2 Harris (Pa.), 338; Penn v. Glover, Cro. Eliz. 421; Morgan v. Hunt, 2 Vent. 213; Lloyd v. Tomkies, 1 D. & E. 671, Dart’s V. & P. 367; Jackson v. Bull, 1 Johns. Cas. 90; Sedgwick v. Hollenbeck, 7 Johns. 376, 380; Rawle on Cov. of Title, p. 194, note. The covenant binds the grantor to omit doing any act by which the title of the grantor may be injured, and any such act or omission is a breach of the covenant. And here, we may repeat, that the covenant to warrant and defend looks to the title, and to th % future.
    
    .8. The deed, from Comstock to Daniels is evidence that Comstock claimed the title. It was, in form and effect, a claim of title in Comstock. Cole v. Lee, 30 Maine, 392, 398; 1 Phil. Ev. (4 Amer. ed.), 601, 604, 609; Greenlf. Ev. sec. 24. Defendant can not deny claim of title. It makes no substantial difference whether Comstock meant to claim the title, or merely to take the proceeds, for the result is the same to us. To get the proceeds, he assumed to hold and convey the title, and his representative is now estopped from denying that the decedent assumed and claimed the title, and by his deed bargained, sold and conveyed the land.
    , We rest the case here upon the effect of the grantor’s claiming title or exercising any acts of ownership after his warranty, and also upon the question of the warrantee’s right to hold the warrantor responsible for whatever happens to the title, or possession, by the grant or acquiescence of the warrantor, and prejudicial to the warrantee, after the warranty. The case of Curtis v. Deering, 12 Maine, 499, bears a very close analogy to this case, but is stronger. Staples v. Flint, 28 Verm. Rep. 794, is somewhat analogous to the present case.
    
      M. R. & R. Waite fox defendant.
    1. The covenant of warranty relates-only to the condition of the title as it was when the covenant was entered into, and to charge the warrantor, there must be an eviction by lawful paramount title existing at the date of the covenant. Coke Litt., Lib. 3, ch. 13, sec. 741, p. 388b; Bac. Ab. 354, Tit. Warranty; Greenliff’s ex’r v. W. —, Dyer, 42a; Frost v. Earnest, 4 Wharton, 86; Rawle on Cov. Tit. 145, 149, 150, 161, 205, 206; Wotton v. Hale, 3 Saund. 177, 180, note 10; King v. Kerr’s adm’r, 5 Ohio Rep. 135; Marston v. Hobbs, 2 Mass. 438; Grannis v. Clark, 8 Cow. 42; Folliard v. Wallace, 2 Johns. 402; Twambly v. Henley, 4 Mass. 442; Beddoe’s ex’rs v. Wadsworth, 21 Wend. 123; Stearns v. Hender
      
      sass, 9 Cush. 502; Ellis v. Welch et al., 6 Mass. 250; Kelly v. Dutch Church, 2 Hill, 111.
    As to the claim of plaintiff’s counsel, that an exception to this rule exists when the subsequent superior title is created by the act of the covenantor himself: Raymond and Wade took title by their deed, which was paramount to that subse quently acquired by Daniels, and in all respects the elder. If they had availed themselves of the protection of the recording acts, they would still have preserved that title unimpaired. If Comstock by his acts has deprived them of their land, he may be liable in some form of action for its value, but not upon the covenants in his deed. By the second conveyance he has not broken his covenant of warranty in the original deed, any more than he would have broken his implied covenant of warranty of title in the sale of a horse, if, after the sale, he had taken and converted it to his own use. His act may have been a wrongful one, for which he should be answerable in damages in some form of action, but it did not break his covenants.
    The title of Daniels, however, is not paramount to that of the plaintiff. It is subordinate to it, but being one which the plaintiff has precluded himself, by his own laches and neglect, from contesting, is as effectual against him as if it had been paramount.
    Comstock had a good title to convey, and did in fact convey it; but the plaintiff by his own fault and neglect is not in a condition to avail himself of it. He is kept out of the premises, it is true, and if he had ever gone into possession might have been evicted. But such an eviction works no breach of the covenants in the deed under which he acquired his title. Kelly v. Dutch Church, 2 Hill, 111.
    We conclude, then, that even if the deed from Comstock to Daniels did deprive the plaintiff of his lands, it did not render Comstock liable upon the covenants in his original deed to the plaintiff.
    2. The rule of damages adopted in actions for breaches of covenants of warranty, shows clearly that the covenant was understood to be confined in its operation to the condition of the title at the time the covenant was entered into.
    This rule makes the covenantor liable for the original consideration money and interest after eviction, and for the reason that as the covenantee took nothing by his deed, the covenantor should take nothing by the sale. But in cases where a perfect title passes by the deed, and the eviction is under a title commencing after the covenant, the reason for the rule ceases to operate. The covenantee did take by his deed just what he paid for, and if the covenantor subsequently has the benefit of the land, he should be held responsible, not for the original purchase price, but for the value of the land at the time he, or others for him, appropriated it to his use.
    Points are made by counsel as to whether title passed to Daniels by the sheriff’s deeds ; and if so, as to the effect of the same upon the liability of Comstock upon the covenants of warranty; and as to how far the effect of those deeds is avoided by the deed of release by Comstock to Daniels. But these points are omitted here inasmuch as the decision of the court does not involve them.
   Peck, «T.

The agreed case concedes that Stephen B. Com-stock, since deceased, at the execution of his deed to Raymond and Wade, on May 30, 1836, had a perfect title, at law and in equity, to the' part of river tract No. 5 which he thereby conveyed to them. His deed then transferred to them a valid title- as against every person at the time of its execution, and had they complied with the registry act (Swan’s Stat. of 1854 p. 310, sec. 8), by causing the same to be recorded within six months thereafter, their title would have continued unimpaired until now; so that Daniels would have taken nothing by the conveyances of the sheriff in 1845, or the quitclaim of Comstock in 1846; and the breach of covenant, if any, has its origin in one or all of these conveyances, some nine or ten years subsequently to the conveyance to the plaintiff.

The question thereupon arises, whether an action can b8 maintained upon a covenant of general warranty in a deed, for a subsequent failure of title, where the grantor had, at the date of the deed, a perfect legal and equitable title to the thing granted.

Counsel upon both sides have exhibited commendable industry and skill in collecting and collating a large number of authorities upon this point, from the time of Lord Coke to the present, and with the exception presently to be noted,, they all establish and confirm the position, that the covenant of general warranty relates solely to the title as it was at the time the conveyance was made, and merely binds the grantor to protect the grantee and his assigns against a lawful and better title, existing before or at the date of the grant. Coke Litt. Lib. 3, ch. 13, sec. 741, p. 388b; Bac. Ab. Tit. Warranty P; Greenliff’s ex'r v. W. —, Dyer 42a; Wotton v. Hale, 3 Saund. 177, 180, note 10; Marston v. Hobbs, 2 Mass. 438; Ellis v. Welch et al. 6 Ib. 250; Stearns v. Hendersass, 9 Cush. 502; Kelly v. Dutch Church, 2 Hill, 111; Grannis v. Clark, 8 Cow. 42; Folliard v. Wallace, 2 Johns. 402; Rawle on Cov., Tit. 200. Nor is this rule less applicable to the modern, than to the ancient covenant of warranty. The form of the writ and the nature of recompense, in value, have been changed; but the measure of its obligation is still the same. Stewart v. West, 14 Penn. Rep. (2 Harris) 338.

The counsel for the plaintiff has, however, referred us to two cases, Curtis v. Deering, 12 Maine, 501, and Staples v. Flint, 28 Verm. 794, as establishing a different rule, or, rather, as creating an exception to it, where the subsequent, but prevailing, title is created by the act of the. covenantor. The case of Staples v. Flint does not, however, conflict with the rule we have deduced from the authorities. In that case, F. and L. had leased a piece of land to S. by a writing, not acknowledged as the statute required, for a bowling alley, and subsequently, while in the possession of S., sold and conveyed the land to a third person without reservation as to S. Whereupon S. brought assumpsit on the agreement, to recover damages, and it was held that S. could recover, and need not resort to equity to compel a lease from the purchaser. The case of Curtis v. Deering is, however, in apparent conflict with the rule. D. executed a deed of mortgage with covenant of general warranty to C., March 8, 1880, which C. neglected to have recorded. D., in September, 1832, conveyed the land in fee simple to J. D., Jr., which deed was recorded in March following. In October, 1853, J. D., Jr., conveyed the same in fee to H. and Y., who had no knowledge of the unrecorded mortgage to C. Thereupon, C. sued D. upon his covenant of warranty, relying for breach upon the subsequent conveyance to H. and Y. Assuming that the title to the land in the case at bar did not pass by the sheriff’s, deed to Daniels, but that the quitclaim, with special warranty of Comstock, operated to transfer it, the two cases are nearly parallel. The counsel in the Ourtis and Deering case made the same objection to a recovery, and cited some of the authorities above referred to; but the court, Weston, C.J., acknowledging the general rule, says that “ there is no propriety in applying the rule that there should be proof of elder title, to evictions founded upon the subsequent acts of the covenantor which can not be resisted; ” but finally arrives at the conclusion that, under the registry laws of Maine, the last deed is to be regarded in law as the elder title.

No authority is cited nor reason given for this exception, unless it be an allusion made to Croke James, in which a rea son is assigned for the rule itself, “ that otherwise the prevailing title may have been derived from the covenantee himself,” and leaving us to apply the maxim eessante ratione, etc. But the reason assigned in Croke James, does not satisfy the unbending rule in Coke upon Littleton, that “ a warrantie doth extend to rights precedent and never to any right that commenceth after the warrantie,” and the other authorities above cited, limiting the covenant to title and rights existing at the date of the covenant, and excluding titles and rights subsequently acquired. It lies much deeper, and is to be found, not in the source of the evicting title, but in the nature of the covenant itself and the intention of the parties, to be collected from all the covenants set forth. It is a stipulation on the part of the warrantor, that the title thereby granted waa then unexceptionable, and that in all time to come he would maintain it to have been unexceptionable at that time. The covenants are that he is seized, has good right to sell, that they are free from incumbrances, and that he will warrant and forever defend, etc. It must be presumed from the general words thus employed, that the parties had in view evictions, etc., to be made by existing rights and not by rights afterward to be acquired. These views will be found fully sustained by the authorities before cited. It is not a question whether the grantee has any remedy in such a case, which we áre far from denying, but whether that remedy is to be sought in an action, for breach of covenant.

As between the parties, the failure to record the deed, did not divest the title of the grantee, nor authorize the grantor to treat the land as still belonging to him. As between them, it was still the property and estate of the grantee; and if the grantor, under such circumstances, should convey it to a third person, by a deed effective to transfer the title, as was done in the case of Curtis v. Deering, and as is claimed in the present case by the plaintiff, but denied by the defendant, such act of the grantor was a wrong for which he would, doubtless, be liable to the grantee; but if our view of the obligation imposed by the covenants is correct, he would not be liable upon the covenant of warranty, for the deed conveyed a good title at the time it was made, and there could, therefore, be no breach of 'that covenant. Stearns v. Hendersass, 9 Cush. 502.

The decision in Curtis v. Deering, seems to have been made without duly considering the nature and extent of the covenant of general warranty, as it had been adjudged from the time of Littleton. The judge (Watson) remarks, that the failure to record the first deed made the one subsequently recorded, by construction of law, the elder title. This .might, in one sense, be true in that State, as by the statutes of Maine (Revised Statutes of Maine, of 1857, 450, sec. 8)-, a deed is not effectual against any person, other than the grantor or his heirs, without notice, until it is recorded. As against, the junior grantee, the unrecorded mortgage never, had,any effect,;. never was the better title. But under our statute, the unrecorded deed was effectual as against all the world, to hold and transfer the title for six months after its execution, and the subsequent deed, though the better title, owing to the failure to record the first, can not, with any propriety, be termed the elder title.

To allow a recovery in the present case, would unsettle a rule of the common law which has prevailed for centuries. If the rule ought to be changed, it should be done by legislation, which operates prospectively, and not by judicial decision, which also operates retrospectively. If there was no other remedy, it might, perhaps, be excusable to create the exception. But no one can doubt, but that the grantor, if by his agency the title was subsequently defeated, would be liable to the grantee for the damages thereby occasioned. It would be a wrongful act in fraud of the rights of the grantee. 3 Ohio, 222.

The settled rule of damages for breach of the covenant of warranty, is the purchase money with interest thereon, from the time of eviction — a rule adopted on principles of public policy, but which will scarcely ever do exact justice to both parties, being either more or less than a fair compensation. This rule, applied to the present case, would work manifest injustice. As appears by the averments of the petition, the plaintiff, in 1836, paid for the land subsequently sold, the sum of $7,500. The sale by the sheriff, in 1845, was for the sum •of $216, so that the value at that time could not have exceeded $324. A recovery upon the covenant of warranty, ■then, would be $7,500, and interest thereon from 1845, when the land, at the time his title was interfered with, was worth only $324, or a recovery.at that rate, for the proportion now in suit. And there would be no escape from this result, unless we should change the settled rule of damages, as well as the settled construction of the covenant. While by leaving the grantee to his action for the wrongful interference of the grantor, if any, the damages may, without violence to settled rules, be made to approximate closely the benefit received or -the injury inflicted.

We are, therefore, clearly of the opinion, for the reasons already stated, that no action can be maintained upon the covenant of general warranty in the deed from Comstock to the plaintiff.

We have been referred to several adjudged cases to the effect, that a claim of title by the covenantor, or any act done by him asserting a title after grant made, though tortious, is a breach of the covenant of warranty. We have examined all the cases referred to, and none of them sustain the position. They are all cases arising upon covenants for quiet enjoyment in the usual form, and the acts done were within the very terms of the covenant; and in the last case cited (7 Johns, 376, 380), this manifest distinction is recognized, and the acts complained of held to be a breach of the covenant of quiet enjoyment, but not of the warranty contained in the same deed. See also to the same effect, Rawle on Covenants, 189; Stewart v. West, 14 Penn. Rep. (2 Harris), 338.

The result to which we have arrived, fenders it unnecessary for us to examine the other points mooted by counsel, as to the relative effect of the several sheriff’s deeds, and the conveyance of S. B. Gomstock, upon the title and rights of the plaintiff. Should an action be hereafter instituted to recover damages for a wrongful and fraudulent interference with the title and rights of the plaintiff in the execution of that deed, the effect of these several conveyances upon the title and rights of the plaintiff will have to be considered, and. we, therefore, abstain from expressing any opinion in regard to them at this time.

Judgment for defendant.

Brinkerhoff, C.J., and Scott, Sutliff, and Gholson, JJ., concurred.  