
    Juliana Blydenburgh v. David Cotheal, impleaded with Abner Jones.
    A general covenant of warranty in a conveyance of lands is not a covenant of title merely, and therefore in effect a covenant of seisin.
    In order to sustain an action for its breach an actual eviction or ouster must be averred and proved.
    Construed as a covenant of title, it is not a covenant running with the land, and consequently no action for its breach could be maintained by an assignee.
    
      (Before Duer, Campbell, and Bosworth, J.J.)
    Oct. 11, 12;
    30, 1852.
    Thus construed, the covenant is broken as soon as it is made, and is converted by its breach into a chose in action which is not assignable.
    An eviction means actual dispossession, and consequently an averment in the complaint, that the plaintiff by force of a paramount title, was evicted from her own right and title, as not averring or implying a change of possession, was held to be bad upon its face.
    Judgment at special term affirmed with costs.
    Appeal from a judgment at special term in favor of the defendant. ®
    The action was brought to recover damages for an alleged breach of a covenant of warranty in a conveyance made by the defendant D. Cotheal and H. Cotheal, deceased, of lands in Hew Jersey. The plaintiff sought to recover as assignee of the covenant: the complaint upon the terms of which the decision partly turned is as follows:
    The above named plaintiff in this action respectfully shows to this court, that under the date therein stated and for the consideration therein named, the defendant David Cotheal, together with Henry Cotheal, did execute and deliver to Jeremiah W. Blydenburgh a certain deed, in the words and figures following to wit:—
    This Indenture, made the eighth day of Hovember, in the year one thousand eight hundred and thirty-six, between Henry Cotheal and Phebe B. his wife, David Cotheal and Charlotte B-his wife, all of the city of Hew York, parties of the first part, and Jeremiah W. Blydenburgh, of the same place, gentleman, of the second part, witnesseth, that the said parties of the first part, for and in consideration of the sum of twenty thousand dollars, lawful money of the United States of America, to them in hand paid, by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, aliened, remised, released, conveyed, and confirmed, and by these presents do grant, bargain, sell, alien, remise, release, convey, and confirm unto the said party of the second partj and to his heirs and assigns for ever, all that certain tract or parcel of land, commonly known as the Lazarus Wilmurt tract, situate, lying and being in the township of South Amboy, county of ' Middlesex, state of New Jersey. Beginning at the edge of Amboy Bay where the line of General James Morgan, late of the township of‘’South Amboy, county and state aforesaid, deceased, touches the same, thence along -the aforesaid line, south sixty-three degrees and thirty minutes, west fifty chains and fifty links to a stake, thence north twenty-seven degrees and thirty minutes, west twenty-eight chains and forty links to a_ stake, thence north sixty-five degrees, east thirty-two chains and ninety-four links to the aforesaid bay shore, thence down the same the several courses thereof, to the place of beginning (saving and excepting out of the said tract above described, the small lot, piece, or parcel of ground said now or lately to belong to Peter Johnson, being about three acres more or less, and situated upon and near the north-westerly corner of the tract of land, above described), the said tract of land, hereby conveyed or intended so to be, after saving and reserving thereout, .the small lot, aforesaid, containing one hundred and six acres be the same more or less, togéther with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And also, all the estate, right, title, interest, dower and right of dower, property, possession, claim and demand whatsoever, as well in law as in equity, of the said parties of the first part, of, in, or to the above described premises, and every part and parcel thereof, with the appurtenances. To have and to hold, all and singular the above mentioned and described premises, together with the appurtenances, unto the said party of the second part, his heirs and assigns for ever. And the said Henry Cotheal and David Cotheal for themselves, their heirs, executors, and administrators, do hereby covenant, promise, and agree to and .with the said party of the secónd part, his heirs and assigns, that they have not done, committed, executed or suffered any act. or acts, thing or things whatsoever, whereby or by means whereof the above mentioned and described premises or any part or parcel thereof, now are or at any time hereafter shall or may be impeached, charged, or encumbered in any manner or way whatsoever. And the said Henry Cotheal and .¡David Cotheal and their heirs the above described and hereby granted and released premises, and every part and parcel thereof with the appurtenances unto the said party of the second part, Ms heirs and assigns, against the said parties of the first part and their heirs, and against all and every person- and persons whatsoever, lawfully claiming or to claim the same, shall and will warrant and by these presents for ever defend to the amount, sum, and extent of ten thousand dollars; but not to any greater amount, sum, or extent.
    In witness whereof the parties to these presents have hereunto interchangeably set their hands and seals, the day and year first above written.
    Henry Cotheal, [l. s.]
    Phebe B. Cotheal, [l. s.]
    David Cotheal, [l. s.]
    Charlotte B. Cotheal, [l. s.]
    Sealed and delivered in the presence of (the words “ upon and” being interlined on the 31st line, first page, after the words “ situate,” and the words “ Wilmurt,” written on an erasure in the 14th line, first page, before execution)
    Charles W. Cotheal.
    Ho. 1 Hew street, Hew York.
    And afterwards on the first day of Hay, 1838, for the consideration or sum of four thousand five hundred dollars to him paid by the plaintiff, the said Jeremiah W. Blydenburgh, then in the actual possession of said land and premises, under his hand and seal did grant, bargain, sell, alien, remise, release, convey, and confirm unto the said plaintiff, her heirs and assigns, all the above described tract of land, by the same metes and bounds as in the above described conveyance to Mm by the said Cotheals; whereby the said plaintiff became and remains the lawful assignee of the said covenant of warranty, and to the damages arising from the breach of the same, to the amount or sum of four thousand five hundred dollars, and the lawful interest thereon.
    And the said plaintiff further shows to this court, that the said defendant, David Cotheal, has not kept his said covenant, but has wholly failed to warrant and defend the plaintiff in the title • to said land, and premises and hereditaments and appurtenances thereunto belonging, thus intended to he conveyed: hut on the contrary thereof says, that the said premises were subject, and still remain subject, to injunction, restriction, and impeachment for all waste to the inheritance—in whomsoever else vested, either absolutely or contingently—committed or to be committed against them; and that the said Henry Cotheal and David Cotheal had cut and removed from the said premises large quantities of wood and clay before the date of their said conveyance ; and that said plaintiff was lawfully evicted from the title and right to said premises, by a paramount and lawful title to the same, at the date of her said conveyance, and has ever since remained evicted, and hath thereby sustained damage to the amount of four thousand five hundred dollars, and the lawful interest thereon from the date of her conveyance.
    And the plaintiff further shows to this court that Virginia W. Morehouse, Josephine B. Winchel, wife of Havila Winchel, and Elizabeth Morehouse, who are the lawful issue of Sarah Anne Morehouse, who is the daughter of Elizabeth Wilmurt, deceased, under whose will the defendant David Cotheal held possession, were at the date of the said covenants by the said David Cotheal, lawfully and solely seized, and stiff remain solely seized, in their own right, of the said lands and tenements invested, remainder in fee.
    And the plaintiff further says, that the defendant Abner Jones claims or pretends to claim some lien or interest in the said covenants of the said David Cotheal, or suspension of the plaintiff’s right of action for the damages arising from the breach thereof, or some part of the same.
    Wherefore the said plaintiff demands judgment against the defendant David Cotheal for the sum of four thousand five hundred dollars, and the lawful interest thereon, from the first day of May, 1838; and that the defendant Abner Jones be barred from all claim to. the said covenants, and the damages arising from the breach thereof.
    The answer of the defendant Cotheal admits the execution and contents of the indenture set forth in the complaint, hut denies that plaintiff was the lawful assignee of the covenant therein. It admits that Virginia W. Morehouse, Joseph B. Winchel, and Elizabeth Morehouse, are the lawful issue of Sarah Ann Morehouse, who was the daughter of Elizabeth Wilmurt, deceased, and that the defendant and H. Cotheal derived their title to the premises under the will of E. Wilmurt, as stated in the complaint, but denies that the children of Mr. Morehouse are seized of a vested remainder in fee. It also denies the commission of any waste creating a forfeiture, and sets up as a special defence in bar the foreclosure of a mortgage given for a part of the purchase-money by J. M. Blydenburgh, and subject to which the premises were conveyed to the plaintiff, but as no evidence was given in support of this defence, it is deemed unnecessary to state it with more particularity.
    The cause was tried before Mr. Justice Sandeord, in February, 1852, by the consent of the parties, without a jury.
    Upon the trial, the counsel for the plaintiff read in evidence an admitted copy of the last will and testament of E. Wilmurt, containing a devise of all her real estate to her daughter Sarah Ann in fee simple, but with a limitation over to third persons “ in case her said daughter Sarah Ann should depart this life without leaving lawful issue.” He then proved that D. & H. Cotheal derived their title to the premises from and through Sarah Ann Morehouse and her husband, by producing and reading the conveyances, which it was admitted were their only source of title. The counsel also read in evidence the record of the proceedings with the remMtitm' attached, in a suit carried from the Supreme Court of H. Jersey into the Court of Errors or Appeals in that state, in which the present defendant, D. Cotheal, was plaintiff in error, and Virginia W. Morehouse, Josephine B. Morehouse (now Winchel), and Elizabeth More-house, by their guardian J. W. Blydenburgh and Havila Winchel, were defendants in error. The counsel then read as evidence of the law of Hew Jersey, two decisions in the above suit of the Supreme Court of that state, which are reported, 1 Zabriskie, 480, and 2 Zabriskie, 434. The suit in H. Jersey, it appeared from the record, was an action of waste brought by the defendants in error, the children of Mrs. Morehouse, to recover the lands that had been conveyed to the Cotheals. The declaration stated in substance that E. Wilmurt died seized of the premises, and by her last will devised the same to her daughter Sarah Ann, in the manner above stated. It then set forth an act of the state of Hew Jersey, passed the 18th of June, 1820, which enacted among other things* that “from and after the passing of that act, when any conveyance shall he made whereby the grantee or devisee shall become seized in law or equity of such estate in any lands or tenements, as under the statute of the thirteenth of Edward the First* called the statute of entails, Would have been held an estate in fee. tail, every such conveyance or devise shall vest an estate for life only in such grantee or devisee, who shall possess and have the same power and'right in such premises* and no other, as a tenant for life thereof would have by law, and upon the death of such grantee or devisee the said lands and tenements shall go to and be vested in the children of such grantee or devisee, equally to be divided between them as tenants in common in fee; but if there be only one child, then to that only in fee; and if any child be dead, the part which would have come to him or her shall go to his or her issue in like manner. Provided, the widow of any such grantee or devisee shall have her dower in the premises in like manner as if the said grantee or devisee had died seized thereof in fee simple. And prpvided, when any person shall marry a woman being a grantee or devisee and seized of such estate* the said husband, after the death of his said wife, shall have his curtesy in the said lands and tenements, if there be issue of the marriage, in like manner as if the said wife had died seized of an estate of inheritance in fee tail of the premises.”
    The declaration then averred, that by virtue of the devise, "and of the statute aforesaid, Sarah Ann Wilmurt entered into and became seized of the tenements in her own demesne as of freéhold for the term of her own life, and that being so seized she intermarried in the month of October, 1828, with Andrew H. Morehouse, who therefore in right of his wife became jointly seized of the tenements with the appurtenances for the term of his life, if issue he should have by such marriage. It then set forth the birth of Virginia and the two other children of Mr. Morehouse, the appointment of J. W. Blydenburgh as their guardian, the title and entry of D. and H. Cotheal, and various acts of waste which it charged to have been committed by them, -to the prejudice of the children as entitled to the reversion in fee, and concluded with an allegation of damages to the extent of three thousand dollars.
    To this declaration the defendants D. and H. Cotheal pleaded the general issue, denying waste, and also the following special plea—•
    “ The said Henry and David Cotheal say, that the said plaintiffs ought not to have or maintain their said action against them, because they say that the said last will and testament in the plaintiff’s said declaration mentioned was and is a certain last will and testament of the said Elizabeth Wilmurt, made and published by the said Elizabeth Wilmurt, and duly executed and attested to pass real estate, on the 7th day of March, A.D. 1835—to wit, at the township of South Amboy in the county of Middlesex aforesaid; in and by which said last will the said Elizabeth Wilmurt, after directing her debts and funeral expenses to be in the first place paid out of her personal estate by her executors, and after giving and bequeathing to her son Thomas Wilmurt the sum of one hundred dollars, to be raised out of her personal estate, after her debts and funeral expenses should be paid, if there should so much thereof be left for that purpose, to be paid by her executors within one year after her decease, did devise as follows, to wit: ‘ I give, devise and bequeath unto my daughter Sarah Ann Wilmurt, and her heirs for ever, all the rest and residue of my estate, both real and personal, whatsoever and wheresover. But if it should so happen that my said daughter Sarah Ann should depart this life without leaving lawful issue, then and in that case I give, devise, and bequeath unto Ann Rose, daughter of William Rose, late of South • Amboy, deceased, and to Elizabeth Wilmurt Hyer, daughter of William Hyer of the city of Trenton, in the county of Hunterdon and state of Hew Jersey, and to their and each of their heirs for ever, all my real and personal estate whatsoever and wheresoever that I now possess, or may hereafter possess, to be held by the said Ann Rose and Elizabeth Wilmurt Hyer as tenants in common, and not as joint tenants. And my will further is, that if my said daughter Sarah Ann should not marry, and should depart this life before my decease, then I will that all my personal estate, after the payment of my debts and funeral expenses, and the legacy of one hundred dollars bequeathed to my son Thomas Wilmurt, be equally divided between the said Ann Eose and Elizabeth Wilmurt Hyer, share and share alike, in addition to the above devise of my real estate to them and to their heirs in the event of my daughter Sarah Ann dying without lawful issue.’ As by, &c. &c., will fully appear. And the said Henry and David Cotheal further say, that after the decease of the said Elizabeth Wilmurt as mentioned in the plaintiff’s said declaration, the said Sarah Ann* thereupon, under and by virtue of the said will, became and was seized of the said premises, with the appurtenances, according to the said will; and afterwards, to wit, at the time and place in the said declaration mentioned, intermarried with the said Andrew X. Morehouse. Whereupon, and by virtue of the said will of the said Elizabeth Wilmurt, the" said Andrew X. Morehouse, and the said Sarah Ann his wife, in right of the said Sarah Ann became and were seized of the same tenements, with the appurtenances in their demesne -as of fee, to wit, to them and to the heirs of the said Sarah Ann, of an estate therein, defeasible only upon the event of the said Sarah Ann’s dying and leaving no issue surviving her at the time of her death; with this, that the said Henry and David Cotheal aver that the said Sarah Ann is yet surviving and alive, to wit, at the county of Hamilton in the state of Hew York aforesaid. And the said Henry and David further say, that afterwards, to wit, on the 13th of July, 1830, at South Amboy, &c., the said Andrew X. Morehouse and Sarah Ann his wife, being so seized as aforesaid, by a certain indenture of bargain and sale then and there made between the said Andrew X. Morehouse and Sarah Ann his wife of the one part, and the said Henry and David Cotheal of the other part, and duly acknowledged by the said Sarah Ann so as to pass her estate and interest (one part of which said indenture,' sealed with the seals of the said Andrew and Sarah Ann his wife, the said Henry and David now bring here into court, the date whereof is the day and year last aforesaid), for the consideration therein mentioned, the said Andrew X. and Sarah Ann his wife bargained and sold and conveyed the equal undivided moiety of the said premises, with the appurtenances,- to the said Hénry and David in fee simple, as by the said indenture more fully appears. Whereupon the said defendants then and there became and were seized thereof in their demesne as of fee, to wit, of an estate therein in fee simple, defeasible only upon the event of the said Sarah Ann’s dying and leaving no issue her surviving at the time of her death $ and afterwards, to wit, on the 19th day of October, 1831, at South Amboy, aforesaid, &c. Andrew Snowhill then being sheriff of the county of Middle-sex, state of ¡New Jersey, by his certain deed of conveyance then and there duly made and delivered under and by virtue of the special authority to him for that purpose given, duly and particularly recited in the said deed, which said deed of conveyance, sealed with the seal of the said Andrew Snowhill, then being sheriff as aforesaid, the said defendants, Henry, and David, now bring here into court, the date whereof is the day and year last aforesaid, did bargain and sell and convey unto the said defendants, Henry and David, the other moiety of the said premises, with the appurtenances in fee simple, and all the estate, right, title, and interest of the said Andrew K. Morehouse and Sarah Ann his wife in and to the same, as by the said deed of conveyance more fully appears. Whereupon the said defendants, Henry and David, then and there became and were seized thereof in their demesne as of fee, to wit, of an estate therein in fee simple, defeasible only upon the event of the said Sarah Ann’s dying and leaving no issue her surviving at the time of her death—without this, that upon the death of the said Elizabeth Wilmurt the said Sarah Ann, under and by virtue of the said will, into the said tenements with the appurtenances entered and was thereof seized in her own demesne as of freehold for the term of her life, and the said Virginia W., Josephine B., and Elizabeth, also by virtue of the said will and of the statute in the said declaration mentioned and recited, then and there became and remain as yet solely seized of the same lands and tenements with the appurtenances, in vested remainder in fee and of right, in manner and form as the said plaintiffs have above alleged; and this the said Henry and David are ready to verify. Wherefore, they pray judgment if the said plaintiffs ought to have or maintain their aforesaid action thereof against them, &c.
    To this second plea the plaintiffs demurred, as follows:
    
      And the said plaintiffs as to the-plea of the said defendants secondly above pleaded, say, that the same and the matters therein contained in manner and form as the same are above pleaded and set forth, are not sufficient in law to bar or preclude them the said plaintiffs from having or maintaining their aforesaid action thereof against them the said defendants, and that they the said plaintiffs are not bound by law to answer the same, and this they the said plaintiffs are ready to verify. Wherefore the said plaintiffs pray judgment whether they ought to be barred or precluded from having or maintaining their aforesaid action against the said defendants by reason of anything contained in said plea.
    And the said plaintiffs according to the form of the statute in such case made and provided, state and show to the court here the following causes of demurrer to the said second plea, that is to say—
    First. For that the said plea hath not confessed, avoided, traversed, or denied the causes of action alleged in the said declaration, nor hath the said plea recited or stated anything from the' last will and testament of Elizabeth Wilmurt, inconsistent with the title alleged in said declaration, or as creating any such estate in the said defendants or their grantors, as is alleged and supposed by said plea.
    Second. For that the said plea doth not pretend to recite the whole will of Elizabeth Wilmurt, or in any manner deny but that the said will contains the very devise mentioned in said declaration, both in form and effect, as therein stated and set forth.
    Third. The said plea is inartiflcially pleaded, and in other respects uncertain.
    The demurrer was sustained by the judgment of the Supreme Court, and the plea overruled in the term of April, A. D. 1860. The cause then proceeded to trial upon the general issue, and was tried at the Middlesex June Circuit ensuing, and upon such trial the jury rendered a verdict for the plaintiffs as stated in the postea, as follows, to wit: “ That the said defendant, David Cotheal (the said Henry Cotheal having before that time died), did make waste, sale, and destruction in woods and lands ; that is to say, in taking twenty cords of wood from Spring Hollow, and five cords of wood from Sugar-loaf Hill; and oaks, chestnuts, pines and other trees from the premises adj oining Spring Hollow, and dispersely standing among the clay pits upon said premises, in quantity equal to fourteen and a half cords of wood in manner and form as the said plaintiffs have by their declaration supposed—and they together assess the damages of the said plaintiffs hy°reason thereof at the sum of $89. And as to the other waste charged in said' declaration, the jurors aforesaid upon their oaths say the said defendant, David Cotheal, made no waste, sale and. destruction, as the said plaintiffs in the said pleading have alleged.
    And thereupon judgment was afterwards, to wit, on the 19th day of July,, A. D. 1850, rendered as follows, to wit— Therefore it is considered that the said plaintiffs Virginia W. Morehouse, Josephine B. Winchel, Elizabeth Morehouse, and Havilla Winchel, in right of his wife the aforesaid Josephine, recover their seizin of the said defendant, David Cotheal, of the places wasted by the view of the jurors aforesaid; and also recover their damages assessed by the jury, $89, trebled' in pursuance of the statute, amounting to the sum of $267. And also for their costs and charges by them about their suit in this behalf expended the sum of $82 90, by the court now here adjudged to them and with their assent, and that said defendant be in mercy, &c.
    And the said plaintiffs pray a writ of the state of New Jersey, to the sheriff of the county of Middlesex, commanding him to cause them to have their full seizin of the places wasted, by the view of the jurors aforesaid, is granted to them returnaable, &c.; and also pray a writ of fieri facias to the same sheriff, commanding him to make of the goods and chattels, lands, and tenements, &c., of the defendant, David Cotheal, their treble damages with their costs and charges so recovered as aforesaid, it is also granted to them returnable, &c.
    With the plea of the general issue there was a notice of this import, that, on the trial it would be shown that the .wood cut was used for repairs to the fences and premises, and the clay dug from open and accustomed mines, &c.
    To review these judgments, a writ of error in the ordinary form was issued, and the assignment of errors is as follows, viz.:
    
      Afterwards, to wit, of the same term of October, eighteen hundred and fifty, before the said Court of Errors and Appeals of the State of Hew Jersey, at the State-House in the city of Trenton, comes the said David Ootheal, by William H. Leupp, his attorney, and saith—That in the record and proceedings aforesaid, and also in the giving as well the judgment hereto- , fore given, to wit: in the term of April, A. D. 1850, by which judgment the plea of the said Henry Ootheal and David Ootheal, by them secondly above pleaded, was by said Supreme Court overruled, as also in the final judgment by said court . rendered and given in said suit, there is manifest error in this. That by the terms of the will of Elizabeth Wilmurt, in said second plea recited and set forth, it was the manifest design of the said Elizabeth Wilmurt to give and devise, and the said 'testatrix did give and devise, to her daughter, Sarah Ann, in said will named, an estate in fee simple in the lands and real state the subject matter of said bequest, determinable and defeasible only by the death of said Sarah Ann without issue left by her at the time of her death, whereas by the aforesaid judgment it was adjudged and determined that by said devise the said Sarah Ann Wilmurt took and was entitled to an estate tail in said lands and real estate.
    2. And in the giving of the final judgment aforesaid, there is manifest error in this. That whereas by the record it appears the judgment final was given in said suit, for the said plaintiffs against the said defendant being here the plaintiff in error, whereas by the law of the land the said judgment ought to have been given for said plaintiff in error the defendant as aforesaid in said suit.
    3. And there is further manifest error in this, that said judg-ment is variant from the verdict rendered by the jury empanelled and sworn to try said cause.
    4. Arid there is also error in this, that as by the record aforesaid manifestly appears, the verdict rendered by said jury is insufficient, and void in not ascertaining the specific value and kind of trees and wood alleged to have been wasted, and in that the assessment of damage thereby is joint and general, and in that the quantity of land alleged to have been wasted is neither ascertained nor defined.
    
      5. And said final judgment is also erroneous in not acquitting and discharging said defendant from the waste charged in the declaration in said suit affiled, and as to which waste the defendant was acquitted by the verdict aforesaid as rendered.
    6. And further, said judgment and proceedings are in divers other respects erroneous, informal and insufficient, and especially in that the judge, before whom said cause was tried, on exception thereto made by the plaintiffs, refused to admit evidence of the repair’s made to buildings and fences on said premises and other similar improvements thereon, by the said defendant. And the said plaintiff in error prays that the judgments aforesaid for the errors aforesaid and other errors in the record and proceedings may be reversed, annulled, and for nothing held, and that the plaintiff in error may be restored to all things which he hath lost by occasion of said judgments.
    It further appeared from the record, that in April Term, 1851, the Court of Errors and Appeals reversed the judgment of the Supreme Court for the errors assigned, and ordered that the defendant D. Cotheal should be “ restored to all things which he had lost by reason of such judgment, and that the record and proceedings be remitted to the said Supreme Court.” They were remitted accordingly, the remittitur filed, and the proper order entered thereon.
    It does not appear from the record what were the exact grounds of reversal of the judgment, nor is there any report of the case in the Court of Errors.
    Eo other evidence than that which has been stated was given by counsel on the part of the plaintiff before Judge Sandford, nor was any evidence given on the part of the defendant. The learned judge directed, judgment to be entered for the defendant, and stated, in writing, the following as the grounds of his decision:—
    1. If there was an eviction by means of defendants’ commission of waste as claimed, it took place at the date of their * deed to plaintiff s grantor, their covenant of warranty was then broken, and the damage did not pass to. the plaintiff.
    2. There has been no eviction as matter of fact, the plaintiff was never molested or disturbed in the possession of the premises, in bon sequence of the waste or by the alleged hostile title.
    
      3. The evidence does not show that the title set np in the Morehouses is valid, nor that the defendants had not the whole title in fee. As the law is in this state, Mrs. Morehouse took a conditional fee, with an executory devise over, and her children took no estate by the will.
    The counsel for the plaintiff excepted to the decision, and the case was now heard upon the pleadings and bill of exceptions.
    
      J. W. Blydenburgh for the plaintiff,
    argued as follows—
    • I. The will of E. W. was made and proved before the year 1839, and the devise over to R. & H. being on an indefinite failure of issue, was by the law of this state a fee tail in the first taker. (See Patterson v. Ellis, 11 Wend. 259, 261; Lott v. Wyckoff, 2 Com. 355, 442; Baker v. Lorillarrd, 4 Com. 261.) It was, by the law of Hew Jersey, the same (1 Zabriskie, 480, and cases there cited; 2d of do. 434), and this court had no right to presume the law of Hew Jersey otherwise, without authority of any kind, and against the Supreme Court of Hew Jersey.
    The construction of the will, by the Supreme Court of Hew Jersey, is conclusive evidence of the law of that state, in this case, until the contrary be shown.
    The Court of Errors in Hew Jersey merely reversed the judgment to recover treble damages for the waste charged, and the remittitur proves no point decided. There was no bill of exceptions, and they could not award a venire de novo. (3 Denio, 97, and authorities there cited.)
    They could not give a new judgment, or restore the cause to the court below. (3 Denio, 97J The question of title was not before the Court of Errors on that writ of error, by the rule or principle of the common law : the law of error in that state, which will be presumed to be the common law, until the contrary appear. The title was before the court below on the trial of the cause, under the general issue. If exception to the title was there waived, it could not be taken in the Court of Errors, but as error in the interlocutory judgment. If taken and overruled, it was not carried to the Court of Errors by bill of exceptions, which could alone authorize that court to riestore it to the court below, as an open question.
    
      The errors assigned were numerous, and the Court of Errors decided and settled no principle whatever. (Opinion of Bosworth J. in Oakley v. Aspinwall.) It is not deference to the Court of Errors to refuse judgment in other actions, because that court settled nothing in that particular case. (See opinion of Sandford J. in Oakley v. Aspinwall.)
    
    The remaindermen have still a statutory right of entry for the waste. There is nothing that shows no waste was committed, or bars a right of entry upon the land therefor. Plaintiff in error did not ask for a new trial, or claim a verdict in his favor. If he took the chance of a verdict without complaint, he cannot object above or assign it as error. If he had evidence of title, it was properly left to the jury. If there was none, and that was the error assigned, it was the duty of the Court of Errors to reverse or affirm the judgment, and either decided the title. Either this fact was well submitted, of the defendant had the unfair benefit of a chance in error, which, however, did not avail him; either way, he has no right to question the title in remainder now.
    The reversal of a judgment for waste does not take away the previously existing right of entry for the waste. (Badger v. Floid, 12 Mod. 398, and Withers v. Harris, 2 L. Raymond, 808.) Keither the judgment for waste, nor the reversal of it, can leave the party worse than he was without the judgment. It merely throws him back upon the statutory right of entry.
    A naked reversal restores Mm to his right of action. (Stewart v. Close, 1 Wend. 441, and concurred in by the Court of Errors, 4 Wend. 95.)
    The positive fact that the Court of Errors, by its solemn judgment, restored the plaintiffs below to their original right of action, precludes their doubt of a title, which alone could sustain it.
    Hr. Cotheal asked to be eased of a judgment of forfeiture, and treble damages for waste. He obtained no judgment in Ms favor, and took no steps by which he could obtain one, much less an implied transfer of another’s title to himself, as a reward for wasting that inheritance.
    The title in remainder was indeed necessary to support the judgment for waste, but á transfer of that title was not necessary to reverse the judgment; nor is there a particle of evidence that that title was doubted for tlie purpose of reversal. If at all considered, it was in no wise impeached, nor is there an opinion or intimation against it by the Court of Errors. We are bound by the record. The opinion of the Supreme Court still stands as the construction of the will and the law of the tjtle. Mr. Cotheal asked for a reversal of the judgment of the Supreme Court upon the title, but obtained no opinion of the Court of Errors to that effect. If they could not give such a judgment, they might have given an opinion to that effect, if they so intended; but their refusal is conclusive that they did not intend to prejudice a new action for the waste, or throw a cloud upon the title in remainder. Heither the statute nor the forfeiture was reversed or disturbed. Silence was not evidence, where there was no authority to decide, or intention to embarrass.
    THE EVICTION.
    There can be no stronger proof of actual eviction from title, than the fact that a vested remainder exists outstanding.
    But, cutting wood and trees, and vending clay, is admitted by the pleadings. This was waste, which gave the remaindermen an actual right of entry, without process of any court. (Elmer’s L. of N. J., 82.)
    “ When the right exists, it is absurd to hold that its exercise was no eviction, .merely because the holder of the estate in remainder had not first invoked the aid of a court to do that which the statute declared should have all the force and effect of a writ of possession.”
    The right of entry being in infants, no statute of limitations run against it, nor were they ciapable of waiving the right by election. It was a continuing right, and the question of fact is, did they exercise it ?
    A stranger may enter to the use of an infant without other authority, and the entry will be good, if openly avowed, and not a mere trespass. (Fritchet v. Adams, 2 Strang. 1128.)
    The covenantee was in actual possession of the places alleged to be wasted at the date of plaintiff’s deed, 1838. A continuous fact is supposed to continue, until the contrary appear; and it is nowhere alleged that plaintiff ever made an actual entry upon the places wasted, but, on the contrary, she alleges eviction at that time, and ever since, and the defendant’s answer does not deny her eviction, but, that it was by paramount and lawful title.
    The answer states, that ejectment was commenced by Cotheal against plaintiff, and the defendant then in possession of the premises, in April, 1847, and judgment rendered against them in 1848, which was enforced March 1st, 1849.
    That defendant, from 1847 to 1849, was then in actual possession of the premises, and, by the title of the action for waste, 1848 (1 Zab. 481, 335), was the guardian of the remaindermen, claiming the premises by statutory right of entry, and prosecuting the action at that time. The record then proves a claim, by the remaindermen, for the premises as forfeited in 1847, and a right, by statute, to enter thereupon, and the party in actual possession admitting the claim by prosecuting the action in 1848, before their removal by Cotheal, March 1st, 1849. This is a complete eviction from possession as could possibly take place or be imagined. (Stewart v. Drake, 4 Halstead, 139.) ■
    The right of entry by statute, and entry without judicial process, was and remains equivalent to the execution of a writ of possession; a legal eviction from possession by process of law, although not judicial process. (See Smith v. Sheppard, 15 Pick. 147; Gove v. Brazier, 3 Mass. 540; Rickert v. Snyder, 9 Wend. 422.)
    The entry for forfeiture vested the estate in actual possession of the remaindermen, which could not be divested by the reversal on the ejectment suit.
    If the plaintiff can sustain the title to which she voluntarily yielded as valid and paramount, it is an eviction. (Hamilton v. Cutts, 4 Mass. 350; Stone v. Hooker, 9 Cowen, 157; Greenvault v. Davis, 4 Hill, 643; Smith v. Shepherd, 15 Pick. 147.)
    [See Ruffin at length in Grist v. Hodges, 3 Devereaux, 200.]
    See Clark, Lessee, v. Courtney, 5 Peters, 354, and Smith’s Leading Cases, 469, Am. ed.
    The possession of a termor or tenant under penalty of forfeiture and treble damages,'is not the possession warranted by the covenant, or that of an absolute owner, but of a quality entirely different. Any abridgment or qualification of the right to a full possession, is a breach of the covenant of warranty.
    n. The covenant of warranty was broken as soon as made, by the mere existence of an outstanding vested remainder, the possession of which never passed to the covenantee.
    The right of action for this breach remained with the covenantee, until the alienation, when the covenantee received $4500 of his alienee, who by possession of the term became vested with the right of action for that amount against the covenantor, and the right of action in the covenantee thereby suspended until restored by payment of that sum to the alienee. This rule holds even where the deed contains several covenants, followed by that of warranty, "because on all the covenants there are but the same damages, to which and for which the alienee has priority of action, if possession of any part or quality pass to him, and the breach continues. Hence the covenantee can never sue even on a covenant of seizin, until the alienee is satisfied his damages under the covenant of warranty. (Swydam v. Jones, 10 Wend. 180 ; 5 Cow. 143.)
    
      H. Thompson, for the defendant Cotheal,
    presented and argued the following points —
    I. There is no proof of any title in the Morehouse children, because: 1st. To establish such title, it must be held that Sarah Ann, their mother, took a fee tail, and that Cotheal had only the conveyance of a fee tail, and was liable for waste, and"'' forfeited the land by the commission of waste, before November 8th, 1836. 2d. The decision of the Court of Errors and Appeals of New Jersey establishes that Mrs. Morehouse took a fee, determinable and defeasible only by her death, without issue left at her death. 3d. Without proof of the law of New Jersey, the devise would be decided according to our law. Mrs. Morehouse, by our law, took a fee, with an executory devise over, and her children took no estate by the will of Elizabeth Wilmurt. (1 Cowen, 103; 2 Hill, 201 and 2, 319 and 322; 3 Paige, 281; 8 Paige, 483.)
    H. There was no eviction in fact. The plaintiff was never disturbed in possession of the premises in consequence of any ’ waste committed, or by the existence of the Morehouse title. (11 N. Hampshire Rep. 74.)
    HI. To maintain, an action on a covenant of warranty and quiet enjoyment, there must be an actual eviction, or a surrender of the possession to the lawful owner, by paramount title. (6 Barbour, 165; 4 Hill, 643; 21 Wendell, 120.) Here there has been neither; and the covenant of warranty is not broken till eviction. (4 Kent’s Com. 471, 2d ed.; 3 Barbour Chan. Rep. 528.)
    IT. The foreclosure barred this plaintiff from all right and claim, and cut off the covenant of warranty, if the same could run with the land.
    Y. If there be an eviction in this case, such as would authorize an action on account of waste committed, then such covenant was broken before conveyance to her, and the covenant did not run to the plaintiff. (2 Barbour, 300; 1 Comstock, 564.)
   By the Court. Duer, J.

It is difficult to understand from reading this complaint exactly upon what ground the plaintiff claims to recover; whether upon the ground that the defendant and his brother had only a life estate when they conveyed, and that, the remainder in fee was then vested in third persons, or that by the commission of waste their title and right to the possession were wholly divested. It is quite unnecessary, however, to determine this question, since there is no hypothesis, consistent with the facts in evidence, upon which the defendants can be rendered liable in the present action.

The covenant of warranty upon the breach of which alone i, this action is founded, is not a covenant, that the party cove- / nanting is then seized and will continue to be seized of an / absolute indefeasible estate in the premises conveyed, and, consequently, it is not violated merely by the existence of an out- i standing paramount title. Its true meaning and legal inter- j¡ pretation is that the grantee, his heirs and assigns, shall not be | deprived of the possession by force of a paramount title. ^ It ' is true, that there are cases in the .English reports from which j, it may be inferred that a general covenant of warranty is ' there construed as a covenant of seizin, but in this state, and in ', other states of the Union, the law is settled by numerous deci-1 sions that in order to maintain an action for a breach of the covenant, an actual eviction or ouster, from the possession of the whole or of a part of the premises conveyed, by force of a paramount title, is necessary to be proved. It may not be necessary to prove an eviction by. process of law, for the possession may be changed by its surrender to the rightful owner, but, in all cases to show a breach of the covenant, evidence of an actual and lawful dispossession must be given. (Vanderham v. Vanderham, 11 John. 122; Montresor v. Rice, 3 Wend. 180; Webb v. Alexander, 7 Wend. 281; Beddoes, Executor, v. Wadsworth, 21 Wend. 120; Greenvault v. Davis, 4 Hill, 643; Mitchell v. Warner, 5 Connec. 521; Loomis v. Bedell, 11 N. Hamp. 521; Emerson v. Proprietors, &c., 1 Mass. 464; Hamilton v. Cutts, 4 Mass. 349.)

In the present case, there is no evidence to show an actual eviction of the plaintiff from the possession of the whole or of any part of the premises, either by the children of Mrs. More-house, in whom the remainder in fee is alleged to be vested, or by any other person having a title paramount to that which the defendant' conveyed; nor, in truth, is any such eviction averred in the complaint. The complaint, indeed, avers that the plaintiff has been evicted by a paramount title from the title and right conveyed to her, but an eviction merely from a right and title is language unknown to the law, and is either wholly unmeaning, or means only that a title was vested in third persons preferable to that of the plaintiff. Construing the covenant of the defendant as a covenant of seizin, the complaint avers a breach, and not otherwise. It is, therefore, bad upon its face, and no evidence was given upon the trial that could justify its amendment.

Of an actual entry by the children of Mrs. Morehouse, or their guardian, at all affecting the possession of the plaintiff, there is no evidence whatever, and the supposition that the existence of a statutory right of entry was in judgment of law equivalent to a positive eviction, we do not hesitate to reject as unsound and extravagant. If a subsisting right of entry in the persons entitled in remainder placed them in judgment of law in the actual possession, it follows that, as this right, if it ever existed, accrued before the conveyance to the plaintiff, she has never-been in possession at all, and consequently has never been evicted.

Even could we be justified in saying that a covenant of warranty, like that of seizin, is merely a covenant of title, we should still be constrained to hold that the plaintiff, as an assignee, is not entitled to maintain this action. Thus construed, the covenant, if broken at all, was broken as soon as the deed containing it was delivered, and J. W. Blydenburgh, the grantor of the plaintiff, could have maintained an action for its breach. The law, however, is established and undoubted, that a broken covenant does not run with the land, since it is converted by the breach into a mere chose in action, which the law forbids to be assigned. (9 Coke, 60. Cro. James. 369. Greenly v. Wilcox, 2 John. R. 1. Ker v. Shaw, 13 id. 236. Witty v. Mumford, 5 Cow. 137. Mitchell v. Warner, 5 Conn. 497. Bartholomew v. Canche, 4 Pick. 167. Clark v. Swift, 3 Metcalf, 390. 4 Kent’s Com. 5 ed. p. 491, note (a) and cases there cited. Yide also, 4 Sand. S. C. Rep. p. 821.)

In the observations that have now been made, we have assumed, that the devise to Sarah Ann Morehouse, in the will of Elizabeth Wilmurt, created an estate tail, which by force of the Hew Jersey statute was converted into an estate for life in the mother, with the remainder in fee to her children. The Supreme Court of Hew Jersey, in the cases that were referred to on the argument, gave this construction to the devise, and we certainly incline to think that the construction is justified by the decisions in England, and the strict rules of the common law. The judgment, however, of the Supreme Court of Hew Jersey was reversed by the Court of Appeals, and upon examining the record, we are of opinion that the reversal could only have proceeded upon the ground that the plea of the defendants, which had been overruled, ought to have been sustained as a valid and full defence. We believe, therefore, that the Court of Appeals meant to decide that the construction which the court below had given to the will of E. Wilmurt was erroneous, and that by force of the devise, Mrs. Morehouse took not an estate tail, but a fee, determinable only by her death without issue then living. We do not deem it necessary, however, to place our own decision upon this ground, since even upon the supposition that the remainder in fee is vested in the children of Mrs. Morehouse, the present action, for the reasons that have been given, is certainly not maintainable.

There is another objection to the plaintiff’s recovery which we deem it proper to state, although it was neither raised on the argument before us, nor seems to have been taken in the court below.

It is quite certain that an action for waste can only be maintained by those in whom the next immediate estate of inheritance, in remainder or reversion, is vested. It will not lie on behalf of the remainderman of reversioner in fee, where there is an intervening estate for life; in other words, where there are two or more successive estates for life, and the persons so entitled are still living. (Co. Litt. 536-54, and 4 Kent Com. 78.) It is true that in this state the Revised Statutes have given the remedy of an action of Waste or trespass to the remainderman or reversioner, notwithstanding there is an intervening estate for life or years (2 R. S. p. 750, § 8); but as there is no evidence of a similar statute in New Jersey, we are bound to presume that, in that state, the common law doctrine still prevails. Adopting then the plaintiff’s construction of the'devise to Mrs. Morehouse, the necessary effect of the New Jersey statute upon the devise, as the facts existed when the Cotheals acquired their title, was to create two successive estates for life—an estate in Mrs. Morehouse in her own right, and in her husband as tenant by the courtesy. Until her marriage, Mrs. More-house was the sole tenant for life, but after her marriage and the birth of a child, the husband became seized of the freehold for his own life,—and the life estate of the wife, as an estate in possession, was displaced and converted into a remainder. The children, therefore, are not entitled to the next immediate estate of inheritance to take effect in possession upon the death of their father, since there is an intervening estate for life in-the mother, which, so long as both parents are living, is a bar to any common law or statutory remedy for waste to which they might otherwise be entitled. There is no evidence that either of the parents has died, and we are therefore bound to assume that both were living not only when the alleged waste was committed, but when the action founded upon it was commenced. The allegation, therefore, that the children have had or now have a right of entry, as resulting from the waste, would seem to be groundless.

We do not at present see that any satisfactory answer can be given to the objection that has now been stated, but as it is our invariable rule never to decide a cause upon a point not argued by the counsel, we do not make it a ground of our decision. We affirm the judgment at special term with costs, upon the ground that there is no proof of an actual eviction—therefore, ño proof that the covenant of warranty has been broken.  