
    Miles T. Cassada, Appellant, v. Ludwig Stabel, Respondent, Impleaded with Maggie Stabel.
    
      Enti'y of a grantor and mortgagee on the property conveyed—when it constitutes a violation of the covenant of quiet enjoyment and prevents a foreclosure of the mortgage— such a covenant runs with the land — it goes to the possession, not to the title—what constitutes a breach thereof—when the grantee and mortgagor may tender a deed and recover the purchase money paid by him.
    
    Miles T. Cassada sold and conveyed a house and lot to Ludwig Stabel by a deed containing a covenant of quiet and peaceable possession, taking back a purchase-money mortgage for §450, payable in yearly installments of §50 each, with interest. Thereafter, on September 15, 1902, Stabel removed from the premises after securing the doors and windows of the house. Shortly thereafter Cassada, although he had been informed that Stabel did not intend to give up the premises and although Stabel was not in default under the mortgage, entered the house, changed the lock on the door thereof and retained the key of the new lock.
    March 9, 1903, Cassada contracted to sell the premises free from incumbrances to one Bowman and delivered possession of the premises to Bowman.
    April 28, 1903, Cassada brought an action against Stabel to foreclose the purchase-money mortgage because of Stabel's failure to pay the installment dué November 22, 1902, and the accrued interest. Stabel interposed an answer alleging a breach by the plaintiff of the covenant of quiet and peaceable possession contained in the deed, and setting up a counterclaim for the purchase price of the real property and for certain permanent improvements made by him thereon, and an offer to execute a quitclaim deed of the property to the plaintiff.
    
      Held, that Cassada was guilty of a breach of the covenant of quiet and peace■able possession contained in the deed and that such breach prevented him from maintaining the action to foreclose the mortgage and entitled Stabel, who had tendered a quitclaim deed of the premises, to recover the amount of the principal paid by him on account of the purchase price;
    That the acts of Cassada did not constitute a mere trespass but an entry upon the property to the exclusion of Stabel;
    That a covenant of quiet enjoyment is a covenant in futuro and until breach runs with the land;
    That the main object of a covenant for quiet enjoyment is to protect the grantee from the lawful claims of third persons having a title paramount to the grantor, but that such covenant, when fully written out, also protects the grantee against an unlawful entry of the grantor himself;
    That, under section 218 of the Real Property Law, such a covenant contained in a deed should be considered as fully written out;
    That a covenant for quiet and peaceable possession goes to the possession only and not to the title, and is broken only by actual entry and ouster or expulsion from or disturbance in the possession.
    
      Appeal by the plaintiff, Miles T. Cassada, from a judgment of the Supreme Court in favor of the defendant Ludwig Stabel, entered in the office of the clerk of the county of Chemung on the 2d day of November, 1903, upon the decision of the court, rendered after a trial at the Chemung Special Term, dismissing the plaintiff’s complaint upon the merits.
    On the 22d day of November, 1899, the plaintiff in consideration of $500 sold and conveyed to the defendant Ludwig Stabel a house and lot by a deed which included a covenant for quiet and peaceable possession. Said defendant paid $50 on account of said purchase price and on the same day executed and delivered to the plaintiff a mortgage on said real property for $450 to secure to the plaintiff the balance of said purchase price, which mortgage was conditioned to pay $450 in yearly payments of $50 each, together with the interest. Said defendant entered into the possession of said real property and thereafter paid the interest and $50 of principal which became due and payable November 22, 1900, and also the interest and $50 of principal which became due and payable November 22,1901, as provided by the terms of the mort gage. On the 15th day of September, 1902, the defendant Ludwig Stabel went to live in an adjoining city, and on the eighteenth day of September his wife, the defendant Maggie Stabel, and the other members of his family moved from the house on said real property to join the defendant Ludwig Stabel in said city. On September seventeenth the plaintiff asked for the keys of the house and was told by the defendant’s daughter that her father wanted to keep the place and that he would not give up the keys. The house was securely fastened before the defendants left it and the keys were taken away with them. There were two doors, one of which was locked and the other door and the windows were nailed. There was nothing then due the plaintiff on said mortgage. After the defend - ants left the house the plaintiff procured a ladder and entered the house from an upper window and removed the lock from the front door and placed a new lock thereon with which he locked the house and retained the key. Ludwig Stabel soon thereafter had an opportunity to rent the house, but did not do so, because he was unable to get into the house. Thereafter, and about March 9,1903, the plaintiff entered into a contract with one Bowman by which he agreed to sell and convey to the said Bowman the said house and lot in consideration of $500 to be paid as in said contract provided and upon payment of which the plaintiff agreed to convey said real property to Bowman by a good and sufficient deed free from incumbrances. Upon the execution and delivery of said contract the plaintiff delivered to said Bowman the possession of said real property and he has ever since retained the possession thereof. On the twenty-eighth day of April thereafter this action was commenced to foreclose said mortgage by reason of the defendant’s having failed and omitted to pay the sum of fifty dollars of principal which became due and payable on the 22d day of November, 1902, and twenty-one dollars interest which became due and payable on said day. The defendant Ludwig Stabel answered the plaintiff’s complaint alleging a breach of the plaintiff’s said covenant of quiet and peaceable possession by reason of the plaintiff’s having evicted him from said real property and also that by reason of such eviction there was a failure of consideration of said mortgage, and as a counterclaim said defendant sought to recover from the plaintiff the amount paid by him on account of the purchase price of said real property with interest and for certain permanent improvements made by him to said real property, and with the answer said defendant offered to deliver to the plaintiff a quitclaim deed of said real property properly executed by the defendants to the plaintiff. On the trial said deed was produced and tendered to the plaintiff and the same now remains in court subject to the plaintiff’s direction. The court found the facts substantially as above stated including a finding as follows: “ That on or about the said 15th day of October, 1902, the plaintiff broke and entered into the said premises and ousted the defendants therefrom and has since deprived them of the use and enjoyment thereof.”
    Third Department, November, 1904. [Vol. 98.
    ■ As conclusions of law the court found “ That the entry by the plaintiff and his subsequent acts were of themselves equivalent to an actual eviction of the defendant by an action at law founded upon a title paramount to that which the plaintiff conveyed to the defendant Ludwig Stabel, and constituted a breach of the covenant for quiet and peaceable possession contained in the deed.”
    “ That the eviction is a complete defense herein to any recovery upon the bond or mortgage mentioned and described in the complaint,”
    
      The court also found that the defendant was entitled to recover of the plaintiff the amount of the principal paid by him on account of the purchase price of said premises. From the judgment entered upon the decision of the court this appeal is taken.
    
      David N. Heller, for the appellant.
    
      G W. Buck, for the respondent.
   Chase, J.:

By section 218 of the Beal Property Law (Laws of 1896, chap. 547) it is provided :

“ In grants of freehold interests in real property, the following or similar covenants must be construed as follows :
CC •?£ -si1
“ 2. Quiet enjoyment.— A covenant that the grantee ‘ shall quietly enjoy the said premises,’ must be construed as meaning that such grantee, his heirs, successors and assigns, shall and may, at all times thereafter, peaceably and quietly have, hold, use, occupy, possess and enjoy the said premises, and every part and parcel thereof, with the appurtenances, without any let, suit, trouble, molestation, eviction, or disturbance of the grantor, his heirs, successors or assigns, or any person or persons lawfully claiming or to claim the same.”

A covenant for quiet enjoyment is a covenant in futuro and until breach runs with the land. (8 Am. & Eng. Ency. of Law [2d ed.], 143.) The main object of a covenant for quiet enjoyment is to protect the lessee from the lawful claims of third persons having a title paramount to the lessor; but such a covenant when fully written out provides also for the protection of the lessee against the unlawful entry of the lessor himself. (Mayor, etc., v. Mabie, 13 N. Y. 151, 156.)

Such a covenant as defined by the statute quoted should be considered as fully written out. The covenant contained in the plaintiff’s deed is a plain prospective agreement that the grantor (plaintiff) would not trouble, molest, evict or disturb the grantee (defendant Ludwig Stabel).

In Sedgwick v. Hollenback (7 Johns. 376) it was held that in the case of a covenant for quiet enjoyment an entry by the covenantor himself tortiously and without title is a breach.

Kent in Ms Commentaries (Yol. 4, p. 473) says: “Any disturbance in the enjoyment of property contrary to the grant of the party creating the disturbance is a breach of covenant,” and he refers to Seddon v. Senate (13 East, 63) in which it is said by Bayley, J.: “ A covenant is nothing more than an agreement in construing which we have only to look to the fair meaning of the parties to it; and if the agreement were in substance and effect that the defendant would sell and assign to the plaintiff the sole right of making and vending the medicine for his profit and that the defendant would not interfere with him in making and vending it, that raises an implied covenant on the part of the defendant that he would not make and vend it; and if he do afterwards make an,d vend it, it is a breach of that implied covenant. * * * The grant of a water course implies a covenant by the grantor not to disturb by any act of his own the grantee in the enjoyment of it, and therefore that a subsequent act of disturbance by the grantor in stopping the water course would give the grantee an action of covenant against him. And if one make a lease of a house and estovers and after-wards cut down all the wood out of which the estovers were to be taken the lessee shall have his remedy by action of covenant against him, it being a misfeasance in him to annul or avoid his own grant.”

The covenant for quiet and peaceable possession goes to the possession only and not to the title, and is broken only by actual entry and ouster or expulsion' from or disturbance in the possession. (Gerard Tit. Real Est. [4th ed.] 528.)

In Waldron v. M’Carty (3 Johns. 471) the court say: “ In good sense the covenant for quiet enjoyment has reference merely to the undisturbed possession and not to the grantor’s title.”

In Kortz v. Carpenter (5 Johns. 120) the court say: “ The covenant for quiet enjoyment goes to the possession and not to the title. It appears to be a technical rule that nothing amounts to a breach of this covenant but an actual eviction or disturbance of the possession of the covenantee.”

In the American and English Encyclopaedia of Law (Vol. 8 [2d ed.], p. 103) it is said: “ But while the main object of a covenant for quiet enjoyment is to protect the grantee or lessee from the lawful claims of third persons having a title paramount to that of the covenantor the covenant may be broken by a forcible entry or die turbanee by the grantor or lessor, his heirs or executors. Where the acts done by the grantor amount to a claim of title by him the covenant is broken. It is not, however, every mere trespass by the covenantor upon the premises that will constitute a breach of this covenant; to have that effect the entry must amount to an assumption of title.”

In the Cyclopedia of Law and Procedure (Vol. 11, p. 1119) it is said: “ The covenant for quiet enjoyment extends to all acts of the covenantor whether tortious or not if committed under color of title/

The distinction between a mere trespass by the covenantor and an entry upon the real property conveyed to the exclusion of the grantee is dearly recognized by the authorities and text writers and must be constantly borne in mind in determining the question as to whether a covenant for quiet and peaceable possession has been broken. Each case must be determined after a careful consideration of the facts upon which a breach of the covenant is claimed. When the covenantor with an assertion of right and assumption of title exclusively and permanently deprives the covenantee of the possession of the real property conveyed there would seem to be a plain violation of the terms of the agreement or covenant. In this case the defendant Ludwig Stabel was deprived of the possession of the real property and it was not necessary for him to resort to violence or an action at law to regain possession thereof. The plaintiff having deprived the defendant Ludwig Stabel of the consideration for the mortgage and having actually sold the real property to another for full value and put such subsequent purchaser into possession thereof in entire disregard of the defendant Stabel and his rights, should not be allowed to recover in this action as if he had fully performed the covenants in his deed. (Cowdrey v. Coit, 44 N. Y. 382.)

The plaintiff does not claim that he is entitled to be considered as a mortgagee in possession.

The findings are not against the weight of evidence and we think the judgment should be affirmed, with costs.

Judgment unanimously affirmed, with costs.  