
    Hopkins vs. Lane.
    A covenant of warranty runs with the land conveyed, and descends to the heir in case of the covenantees death; it also vest3 by assignment in his assignee and the heir or assignee, upon a breach, may sue the covenantor.
    A, sold a tract of land to 3, with a covenant of general warranty. B sold to C, with warranty also. C was evicted by paramount title. C sued A upon his warranty to B, declaring as assignee of B: Held, that the sale of the land to C, with warranty, constituted him the assignee of B, and that he was entitled to maintain the action.
    Where, by the terms of a conveyance, A transfers to his purchaser, the same estate which was conveyed to him with warranty, by B, a privity of estate is thereby created between the covenanting parties, and the purchaser fiom A becomes, by force of the conveyance, assignee of the original covenants of warranty made by B to A, and he maintain an action thereon against B.
    Where the covenant is inherent in the land, in order to confer a right of action on the assignee, it is not essential that he should be named, therefore, upon a covenant of warranty with A, without naming his assigns, his assignee may, notwithstanding, sue upon the covenant.
    In covenants of warranty, which run with the land, he who is owner of the l^nd at the time of the breach, can take advantage of it.
    On the 27th of July, 1828, Hopkins sold to - Cox a tract of land in Warren county, for two thousand three hundred and twenty-eight dollars, and executed to him a deed, with a covenant of general warranty. The covenant was to and with Cox, without naming bis heirs or assignees. On the same day Cox sold the same land to Lane, for seventeen hundred dollars, and conveyed ‘it with a covenant of general warranty.
    Hammond’s heirs sued Lane, and recovered the land, and he was evicted therefrom; whereupon Lane, as assignee of Cox, sued Hopkins, declaring on the covenant of warranty in the deed from Hopkins to Gox. The defendant pleaded covenants performed. On the trial a verdict was obtained by the plaintiff, for two thousand three hundred and twenty-eigbt dollars, and interest, from 27th of July, 1828, to February 1st, 1836, together witb the costs of defending the title, making in all three thousand four hundred and twenty-eight dollars.
    Hopkins moved in arrest of judgment, and also for a new trial. Both motions were discharged, and judgment was rendered on the verdict for Lane; from which this appeal in error is prosecuted.
    
      R. J. Meigs, for plaintiff in error.
    The single question in this case is, whether a vendee with general warranty, by the mere act of purchase, becomes assignee of the covenant of general warranty, taken .by his Vendor for his security? In other words, is he assignee of every remote warrantor’s title, and of the title of every person from whom his vendor may have purchased, though it were twenty, or is he only assignee of his vendor’s title, let it be composed of what muniments it may?
    We insist he is only assignee in the latter sense. It is the first rule of conveyancing, that he who conveys by general warranty, retains all the muniments of the title to the land, to enable him to comply with his covenant of warranty; and that he who conveys by special warranty, or by quit claim, delivers to the vendee all the muniments, because the vendee relies upon the seller’s title for better for worse, without any personal covenant from the seller himself.
    If I warrant a title against all the world, so far from thereby assigning to my vendee any indemnities I may have taken for my security, I expressly retain them; otherwise, I become liable to be vouched, without the power of vouching over.
    Suppose my vendee, to whom I have thus surrendered my indemnities, prefers suing me directly on my covenant to him, rather than sue my vendor on his covenant to me, I could make no defence at law. It would be no bar to his action, that I had delivered to him my vendor’s covenant. But if my vendee is, ip so facto, assignee of any and all covenants of warranty, which I may have taken from all the persons whose claims I may have thought proper to extinguish, he might sue on them- all, and have as many satisfactions at law, as there were covenants, and after all, sue me, and have another satisfaction. In this case, I should be driven into a court of equity, and the circuit of action which the rule contended for by defendant in error, is supposed to avoid, is, with much ado established by sustaining; his ac- . 7 7 JO tion.
    We suppose this view to be sustained by 14 Johns.. Rep. 89, Kone vs. Souger; and by Fearne, in his Posthumous Works, 110, cited in Thomas’s Coke, 388, at the top, and in 4 Cruise, 468-9, margin: 2 Mass. Rep. 460.
    We suppose that a covenant o? warranty is literally a personal covenant, and that every holder of the land, as such merely, is not assignee of it; but that only such holders of the land as take the very title of the warrantor, are assignees of the covenant, e. i. purchasers by quit claim from the warrantor. Roach vs. Wadham, 6 East, 287: '7 Peters-dorff, 200: Am. Ed. pi. 12, 13. That it is a personal covenant, we think is proved by the rule, that it does not pass to assignees unless they are named in the deed, or unless the deed is in point of form and substance, simply an assignment of the vendor’s title. 2 Thomas Coke, 360, top page. .
    Marchbanks, for defendant in error.
    The first objection taken by the plaintiff in error is, that there is no privity of contract between him and the defendant in error, and that therefore, the latter cannot maintain an action against him upon the covenant to Cos, notwithstanding the land passed to him. To understand the effect of this objection, and whether that privity existed or not, it is important to ascertain what covenants run with land upon its transfer, and what do not.
    Covenants, so far as relates to the question involved in this case, are either real or personal. (Shepherd’s Touchstone, 161.) The warranty anciently contained in conveyances oflands was a covenant real, because the land itself was secured, and upon a breach thereof, the warrantee recovered other lands of equal value, and not a cumpensation in money, lb. 181, 182, 183, and therefore, as it was a warrant for other lands, it was termed a covenant real.
    In modern times covenants real have been superceded by personal covenants ■ for title, which are in the nature of covenants real, and run with the land, and vest in assignees, although not named. 2 Thos. Coke, 281, note (1.): 3 Law -Library, 234, 304,-c. 11: 4 Kent’s Com. 458-9: Sugden On Vend. 400-1: 3 Comyn’s Digest, 255, 256: Lunar vs. Ellis, 6 Mass. Rep. 331: Bradford vs. Long., 4 Bibb’s Rep. 226.
    '' The covenant, in this case, being to warrant and defend the title of the land, is therefore of that description that runs with the land, and vests in assignees. But if is Hot enough that the covenant be for title alone, to make it run with the land there must be a privity of estate between the patties; that privity here exists. See 4 Kent, 460: 5 Jacob’s Law Die. 285: 4 Cruise’s Digest, 311, § 37.
    Hopkins’ covenant of warranty to Cox having run with the land, and vested in Lane, constitutes between them, not only privity of estate, but also of contract. See the definitions of privity in Jacob’s Law Diet. Whether this be so or not, one thing is evident from the authorities, viz: that the transfer of the land vested in Lane such an interest in the covenant of Hopkins, as to- enable' him to maintain an action upon it as the assignee of Cox, for any breach happening after the' salé Of the land. But it is contended for the plaintiff ⅛ error, that' this rule' applies only where the land comes to the assignee without warranty of title, and that if -he takes a warranty from his- immediate bargainor, fie is thereby deL prived of the right of resorting to the remote grantor, to support which, two cases are relied upon; Kane vs. Saugar, 14 John. R. 89, and Bickford vs. Page, 2 Mass. R. 460. In the case of Kane vs. Saugar, Ch. J. Spencer, though not as to any point involved in that case, does intimate that such a distinction exists, and for the authority of that dictum, cites the case of Bickford vs. Page-, when that case is examined it will be found, so far from sustaining this position, it is an authority against it. See also Nibs vs. Santill, 7 Mass. R. 444. The question came directly before the supreme court of New York, in the case of Wythy vs. Munford, 5 Co-wen’s R. 142; and again, in the case of Gat-lock vs. Gloss, lb. 143; in both of which the court decided, that the dictum of C. J. Spencer, in the case of Kane vs. Saugar, was not the law, and that the decision in Bickford vs. Page war-. ranted no such conclusion; and that an assignee, notwithstanding he has taken a warranty from his immediate bargainor upon eviction, has a right to sue the original grantor upon his warranty to the intermediate grantee. The same principal is decided in the cases of Booth vs. Star and others, 1 Con. R. 244: Bradford vs. Long, 4 Bibb’s R. 225: Booker vs. Bell, 3 Bibb’s R. 173: Berry vs. Hume, 3 Marshall’s R. 223-4, and Lott vs. Parrish, 1 Littell’s R. 396.
    There can be no doubt of Lane’s right to sue Hopkins by the common law, for the reasons above set forth. If the covenant of warranty was of that description, that it does not run with the land, or for any other cause did not do it, still Lane is the assignee; and the only reason why assignees of personal warrants could not sue in their own name by the common law, was, that choses in action were not assignable. 4 Kent, 459. In this State the assigness of such instruments are authorized by the act of 1801, c. 6, § 54, to sue in their own names.
   Green, J.

delivered the opinion of the court.

The principal question in this case is, whether the vendee of L.ane, with general warranty, becomes by his purchase, assignee of the covenant of general warranty taken by his vendor.

All the authorities agree that the covenant of warranty runs with the land conveyed, and descends to heirs, and vests in assignees. 4 Kent’s Com. 459, Thomas’ Coke, 381, (note): Platt on Cov. 304: Law Lib. 134. The consequence is, that the assignee may take advantage of a breach of a covenant of warranty, and may sue the covenantor.

The above propositions are admitted by the counsel for the plaintiff in error, to be generally true; but it is insisted, that when the vendee takes a covenant of general warranty, he does not become assignee of his vendors covenants.

This exception is not sustained either by reason or by authority. Were it true as contended, that a- vendee by taking a covenant of general warranty, would thereby be de-. prived of the benefit of all the preceding covenants, of which ' he would have been assignee, had he taken a special warranty - only, it would often happen that a quit claim deed would be better than one with full covenants. The counsel insists, that where there is a covenant of warranty, the vendor is entitled to retain the deeds, but where there is no such covenant, they are delivered over to the vendee; and for this, Thomas’ Coke, 883, (note,) is cited. From hence it is insisted, it follows, that upon principle, the vendee ought to have no remedy except against his immediate vendor. This would not follow as a legitimate conclusion, were the rule <⅞f conveyancing as stated; but the authority in Coke, does not indicate the proposition contended for to be the rule- of conveyancing, but the contrary. The note is treating of the covenant that it is proper, a vendor should be requested to make, -and when he had himself purchased the estate, and it* is said, “when the vendor has parted with his means” of claim or remedy against his grantor for breach of his covenants, and transferred them to the purchaser by delivery of the deeds, and such vendee comes into the vendor’s place,. in that respect, by the acquisition of such deeds, it would be unreasonable that the vendor should make himself liable for any such breach. It is manifest, that Mr. Fearne in laying down this rule, intended to be understood, that the title dee'ds, as a matter of course, are to be delivered ever to the vendee, for it is upon the existence of that fact that he predicates the opinion, that it is unreasonable that the vendor should covenant further than against himself and those claiming under him. But, he says, where the vendor retains the deeds, then he ought to make a general covenant. From this latter expression it is inferred, that whenever the vendor enters into a general covenant of warranty, he is entitled to retain the deeds; but this is a false deduction. The note proceeds to state in what case the vendor does retain the deeds, as where they relate to a larger estate than the one sold. Here the vendor is interested to a greater extent in the deeds, than the vendee, and it is therefore proper, that he should retain them, and covenant for their production.

But if the rule of conveyancing were, as the counsel for the plaintiff in error contends, it would not effect the question. It is not because of the delivery of the 'deeds to tlxe purchaser, that he becomes assignee of the covenants contained in them, but because he takes the same estate, and stands in . . r . the place of his vendor, and thus a privity of estate is ere-ated between the covenanting parties. 4 Kent’s Com. 460: 4 Cruise’s Dig. 316.

The character of the estate, which may be transferred by a deed is not affected by the existence or non-existence of a covenant of warranty. If, by the terms of the conveyance the same estate which had been conveyed to the second vendor, be transferred to his purchaser, he becomes assignee by force of the conveyance merely of the covenant of warranty, and as such, may maintain an action bn the covenant against the warrantor; and this principle having been settled by the whole current of authority, both English and American, with only one interposing dictum to the contrary, (14 John. Rep. 89,) we shall feel bound to adhere to it, even were the reasoning against it much more plausible than it is. Co. Litt. 384-6: 5 Rep. 17: 4 Cruise’s Dig. 452 to 7: Booth vs. Starr and others, 1 Con. Rep. 244: Lot vs. Parish’s executors, 1 Littell’s Rep. 393 to 396: Birney vs. Hann, 3 Marsh. Rep. 322: Bradford vs. Lang, 4 Bibb, 225: Withy vs. Mumford, 5 Cowen, 137.

2. It is insisted, that as the deed to Cox does not name the assignee, or only covenants to and with Cox, and not to Cox and his assigns or assignees, that the latter cannot sue.

This makes no difference, where the covenant is inherent in the laud. In order to confer a right of action on the as-signee, it is not essential that he should be expressly named. Platt on Cov. 523, (3 Law Lib. 234,) Sudg. Vend. 400. As it relates to the land, he only, who is owner of the land at the time of the breach, can take advantage of it. 4 Kent. 459: 2 Mass. 460.

This court therefore, is of opinion, that there is no error in the judgment of the circuit court, and order that it be affirmed.

Judgment affirmed.  