
    Josiah Ferriss vs. James Harshea.
    In Error.
    In an action of covenant upon a warranty of title to land, the plaintiff must aver and prove an eviction, by elder and better title, before the commencement of his action against the warrantor.
    The recovery of a judgment in ejectment, by the party having the better title against the warrantee, and suing out a-writof possession, without its being executed,^ not sufficient evidence of an eviction.
    To constitute an eviction, the warrantee must be actually dispossessed by hinv having the better title.
    This was an action of covenant, brought by Harshea against Ferris, in the circuit court for Rutherford county. The writ issued the 18th November, 1822, returnable to the February term, 1823, of said court; being the next succeeding term after the issuance of the writ — at which term Harshea declared in a plea of covenant broken, that the said Ferriss, and his wife Polly, in consideration of the sum of 637 x5Tr°¥ dollars, had granted, bargained, and sold to him a tract of land, in the county of Ohio, and state of Kentucky, containing 212§ acres, more or less; to have and to hold, &c. And that the said Ferriss, by his said deed, warranted and defended the title to said land to said Harshea and his heirs forever, against the claims of all persons whatsoever; — that by virtue of said conveyance, he entered in and upon said tract of land, and was thereof possessed.
    The declaration then states, that an ejectment was brought by the heirs of Joseph Barnett against him in Kentucky, for the said land, and a recovery had for the same; by reason whereof the said heirs of Barnett have obtained possession, and evicted him, the said Harshea, therefrom. To this declaration the defendant, Ferriss, pleaded “covenants performedupon which issue was joined.
    At the trial of the cause in the circuit court, the plaintiff proved, th<\t Barnett’s heirs had the elder and better title to the land mentioned in the declaration, which title was not derived from Harshea, the warrantee. To prove an eviction, by the paramount title of Barnett’s heirs, the plaintiff below, read in evidence a judgment recovered against him in the state of Kentucky. The transcript of the record shows a regular judgment in favor of the heirs of Barnett against Harshea, for the land in question, rendered the 3d day of June, 1822; and a writ of habere facias sionam issued on said judgment, the 2d day of December, 1822, which was executed on the 16th of January, 1823; •and this was all the evidence of the eviction.
    The circuit court charged the jury, that the judgment against the plaintiff Harshea, and the award of the writ of possession, in the action of ejectment at the suit of Barnett’s heirs ■ against him, without any actual eviction, was a breach of the covenant of warranty contained in the deed from Ferriss and wife, to Harshea; and that Harshea’s having commenced his action, before he was turned out of possession of the land lost, was no objection to his recovery in this action. To which opinion of the court the defendant’s counsel excepted. A verdict was found for the plaintiff; and a motion made for a new trial by the defendant, upon the supposed misdirection of the judge in his charge to the jury; which motion was overruled, and an appeal in error taken.
    
      Thompson and G. M. Fogg for the plaintiff in error.
    In an action of covenant upon a warranty of title of lands, it is necessary to aver in the declaration, and prove upon the trial, an eviction, by paramount title in a third person, not deriving title from the plaintiff himself. (2 Saunders 176,181, note 8; Foster vs. Pierson, 4 Term Reports 617; Greenly vs. Kellog, 2 Johnston 1,4; Kent vs. Welch, 7 John’s. Rep. 258; Crutcher vs. Stump, 5 Haywood 100; Randolph’s lessee vs. Keys Meelcs, decided January term, 1826, by this court.
    
    An eviction, is the actual dispossession of the tenant by writ of possession; or it may take place by the delivery up of the premises to the person having the outstanding title, as decided in Hamilton vs. Cutts, 4 Massachusetts Rep. 349.
    In this case, the land warranted by Ferriss, the defendant in error, was recovered from him by a paramount title, &c. a judgment rendered against him for the land; but before Harshea was dispossessed by a writ of habere facias possessio-nam, and before he delivered up the premises to the party who recovered from him, he commenced his suit: the action. was, therefore, commenced before any cause of action ex-jsj-e(j. there was no breach of the covenant, until an actual eviction took place.
    •/. P. Clarke and G. S. Yerger, contra.
    Admitted there is no breach of a covenant of warranty, until an eviction by paramount title; but the eviction, to constitute a breach of this covenant, does not mean an actual turning out of possession — it means nothing more than a deprivation of right, a damage or loss, by the sentence or judgment of a court.
    The word eviction, is derived from the latin word evinco, which means to overcome. It is defined by Jacob in his Law Dictionary, a recovery of land, &c., by form of law. It is used by law writers as synonimous with recovery. (See 7 Bacon’s Abridgment 225, Wilson and Gwilliam’s edition, 2 Co. Litt. end of sec. 743.)
    Formerly the remedy for breach of a warranty of title to land, was by voucher, or warrantia chartae. The warranty was then considered a real covenant annexed to the land. We now consider it a personal covenant, and have substituted the action of covenant for its breach, in lieu of those remedies. But the same rules that prevailed, as to the breach of the warranty, when the warrantia chartae was the remedy, ought still to govern in the action of covenant.
    It was necessary, when the remedies by voucher and war-rantia chartae were resorted to, to prove an eviction before the warrantee could recover in value against his warrantor. (1 Institute, Butler’s notes 328 and 315.)
    When the tenant was sued or impleaded, he vouched his warrantor, who came in, and if he did not succeed in defending his title, judgment was entered against the warran-tee; and he, immediately after the judgment, and before he was turned out of, or delivered up possession, had judgment over against his warrantor for a recovery of lands of equal value. (7 Bacon, Wilson and GwiLiam’s ed. 239,240; 1 Coke Litt. sec. 145, and comment by Lord Coke.) These authorities show, that the judgment itself against the warran-tee, constituted the eviction, and not the dispossession or delivery up of the land. This is, also, conformable to the civil law. The meaning of eviction, as defined by the civil law. is, “the loss which the buyer suiters, either of the whole or part of a thing, by reason of a right which a third person has to it.” (Domat lib. 1, title 2, sec. 10; 3 Coke Litt. note. 315 to the third book.)
    
    It is the judgment against the warrantee, that deprives him of his land — it is the judgment that occasions his loss— the writ of execution is' no part of the judgment, it only carries the judgment into effect; or, in .other words, the writ of execution, when executed, deprives the warrantee of the possession of the land, the right to which was taken from him by the judgment.
    By the civil law, also, the moment the sentence was pronounced against the warrantee, he could commence his suit before delivery up of possession against his warrantor. (3 Coke, note 315 to book 3.)
    In the case of Hamilton vs. Cutís, 4 Mass. Rep. 352, chief justice Parsons says: “We are all of opinion, that to prove an eviction, according to its strict technical meaning, a judgment of court is necessary.” The court here evidently consider the judgment itself as a sufficient eviction.
    In Hunt vs. Cope, Cozvper 242, “the defendant, who had leased to the plaintiff, entered upon the land and pulled down a summer house, whereby the plaintiff was deprived of the use thereof: without saying he was expelled or put out of the same.” Lord Mansfield says, in the conclusion of that case, that if these facts had been pleaded, as an eviction, they would have been sufficient to warrant the jury in finding for the defendant.
    - In Talbot vs. Bedford, Cook’s Rep. 458, the court consider the law as we contend it is. (Vide also, 1 Hening &r Mun-ford 201, Lowther vs. Commonwealth.)
    
    But in this case the covenant of warranty was made in Kentucky, and the warranty took place in that state. If then the judgment in Kentucky, without dispossession, be considered the eviction, the law of that state ought to govern, and that the law is so settled in Kentucky. (See Radcliffvs. Ship, Hardin’s Rep. 292; Watsonys.Kennedy, 1 Marshall 389.)
   Whyte, J;

delivered the opinion of the court; Crabb, J. absent. This record presents to the court for determina-^ie sing]e question; “whether a judgment in ejectment, against the warrantee, without actual ouster by writ °f possession, or yielding up of possession by the warran-tee, is sufficient proof of an action, to maintain an action upon the warranty.

It is argued for Harshea, the defendant in error, that eviction of the warrantee, and a judgment in ejectment against him, are in principle the same; for that the execution follows the judgment, and cannot be resisted, and therefore the record of recovery by judgment alone, is sufficient evidence of an eviction. And it is further argued, that if an actual dispossession is necessary in law to constitute an eviction, it is not necessary that it should take place before the commencement of the suit by the warrantee. That this is to be collected from the ancient writ of warrantia chartae, which was the remedy by the common law on a real covenant of warranty; and 7 Bacon Abr. 239, 240, is cited, and relied upon to show this; where it is said, “likewise the warrantee, or his heirs, may at any time before they are impleaded for the land, bring a warrantia chartae upon the warranty in the deed, against the warrantor, or his heirs, and thereby all the land of the warrantee shall be bound and charged with the warranty, into whose hands soever it goes afterwards. So, if the lands warranted, be afterwards recovered from the warrantee, he shall have so much land over again, of the other land of the warrantor.”

This authority does not support the position for which it was introduced.

It is to be observed, that the warrantia chartae, is twofold in its object; and as chief justice Hobart says in his Reports 21, it is either provisional or remedial. “In the first, it is of fear and provision, for the purpose of fixing the warranty and binding the possession (or land) of the warrantor.” In the second or remedial, it is resorted to where a loss has been already sustained, and to be recompensed by value.

In the first case it may be brought by the warrantee, at any time after the warranty is entered into, and before eviction; and this was admitted, as Hobart says, of fear and provision; it was for the benefit of the warrantee, to fix the time the writ is brought, into whose hands soever they may afterwards come; and thus render them liable to the loss, that may he at a future day sustained by the warrantee, upon the eviction of elder and better title to the land warranted.

Such was the object and effect of the judgment of warranty; upon which, and the after conviction of the warran-tee, he could have an “habera facias ad valentiam; but this last never could be had until after eviction, or loss sustained; then, and not till then, could the warrantee have recompense for that loss — or, as Hobart lays it down, it shall bind the land from the teste of the marrantia chartae, though he cannot have execution until he sustains loss. (Hobart's Rep. 22, 23; 5 Comyn's Digest 811; F. N. B., 135 D.; 2 Mass. Rep, 433.)

Thus, by reference to the ancient real.action of marrantia chartae, we see that the warrantee, to have recompense, •must have previously sustained loss. So, in the present personal action of covenant broken, upon the warranty, which has been substituted for the voucher and marrantia •chartae, the courts have preserved the same analogy, and required the warrantee to show a loss actually sustained, to entitle him to recompense in damages.

In Gore vs. Brazier, 3 Mass. Rep. 544, 5, chief justice Parsons, speaking on this subject, says, “it is certain that before the emigration of our ancestors, the tenant, on being lawfully evicted byatitle paramount, might maintain aperso-nal action ofcovenant broken on a real covenant of warranty and 1 Brownlow 21, 2; 2 Brownlow 164, 5, are cited by him; to which may be added Hobart 22 — where chief justice Parsons says, “a warranty, of itself real, may be used as a covenant to recover damages.” Chief justice Parsons fur-, ther says, “this remedy was adopted by our ancestors, as early as remedies for evictions of land sold with warranty, were necessary; and in a personal action of covenant, it is a general rule of law, that such pecuniary damages be recovered, as shall be an adequate compensation for the injury sustained by the breach of the warranty.” And in the case of Martin vs. Hobbs, 2 Mass. Rep. 438, the same able judge says, “that at common law, the tenant, after he had jog£ might bring a personal action of covenant on the covenant, to warrant and defend and recover a satisfaction in damages; hut he must assign as a breach of the covenant, an ouster by title paramount.”

These authorities, and there are many others to the same effect, prove the strict analogy between the real action of warranty of charters in its remedial effect, and the personal action of covenant broken, on a covenant in a deed to warrant and defend. That in the zoarrantia chartae, although in its provisional effect, the writ was brought by the war-rantee hanging the plea, (as it is called,) or while he is tenant of the land warranted, and the judgment therein' hinds the lands of the warrantor, yet it is only provisionally that he is evicted, or sustains loss; and that the eviction of the warrantee must take place before he can have an-habere facias ad valentiam. So, in like manner, in its substitute, the personal action of covenant broken, there must he an eviction, or loss sustained by the warrantee, before he can recover damages for that loss. The eviction is the breach — it must have been consummated before the action brought, to give cause of action, and must be so proved to support the action. (See above cases cited; also 7 Bac. Abr. 238, 239 notes; 3 Term Rep. 186; Douglas’ Rep. 112 notes; 7 John. Rep. 259, Kent vs. Welch.)

Other books are referred to, to show, that the judgment in ejectment in this case is an eviction, or equivalent to an eviction. 2 Jacob's Law Dictionary 444, is relied on, giving the technical definition of the word eviction. He says it is from evinco, to overcome, and means “a recovery of land, by form of law, &c.” This is no doubt correct; but it is not to the point contended for, to wit: that a recovery of a-j-udgment alone is an eviction.

Recovery of lands, or in other words, obtaining lands by form of law, comprehends something more than obtaining a judgment; it is inclusive also of the possession, and means obtaining or recovering that also by form of law, or writ of execution.

But, although an eviction may be by recovery, by form of law, it may also be as good and valid without, that is by entry, or other act in pais, amounting to an entry of him who hath the elder and better title, and putting out the tenant or warrantee, (Hobart 26; 4 Term Rep. 618; Hamilton vs. Cutts, 4 Mass. Rep.) An eviction then, whether it be effected by action, or by entrjq is in substance, the divesting the tenant of his estate in the- land. This results from the obligation of the warrantor, which is “nihil aliud quampossidentem defendere et acquietare, in sua seisina vel possessions, erga petentem.” Which may be thus translated: ‘‘nothing else but to defend and quiet the tenant in his seisin or possession against the plaintiff.” (1 Institute 345.)

The form of the plea of eviction, is also good evidence of its meaning, to wit: “entered in, &c., and then and there ejected, expelled, put out and amoved said A B from the possession, &c. &c.” (Lilly’s Entries 180; 2 Chilly's Pl. 484, 7; 4 Term Rep. 618; Cawper’s Rep. 242,3.)

The turning out of possession, is not effected by a judgment in ejectment. In Sedgwick vs. Hollenbock, the supreme court of New York say, “a judgment of itself is no transfer of title, nor does It destroy the seisin of the defendant.” (7 John. Rep. 376.) The eviction, or the turning out of possession, is caused by entry under the judgment, either with or without execution. So lord Mansfield, in the case of Atkins’ lessee vs. Horde, 1 Bur. 114, says, speaking of the judgment in ejectment, “he who enters under it, in truth- and in substance, can only be possessed according to right; prout lex postuloi. If he has a freehold, he is in as a freeholder; if he has a chattel interest, he is in as a termor— and in respect of the freehold, his possession enures according to right.”

I shall now proceed to notice the cases principally relied on by the counsel for defendant in error, in support of the charge of the court — they are decisions of the court of appeals of Kentucky. And it is argued, that they decidedly prove, that the course of decision in that state is, that the judgment in ejectment against the warrantee, and writ of possession awarded, without actual dispossession, is conclu-. sive evidence of eviction, and ought to govern the present case; as the recovery by the paramount title was in that Independent of the latter consideration, the decisions of that court are entitled to the greatest respect. Do these cases support the position contended for?

The first in point of time, is Radcliff vs. Ship, Hardin’s Rep. 292. That was an action similar to the present, and the plaintiff offered in evidence the record of a judgment recovered against him, by one Thomas Marshall and others, in the court of quarter sessions for Mason county, and an (ihabere facias possessionam” sued out thereon. This record the court below refused to admit, for three reasons; the second reason, which only need be noticed here, is because it does not appear that the party was legally evicted. On this the court of appeals say, “it may justly be observed, that no better evidence of eviction, ought to be required, than the judgment of a court itself. Had the plaintiff refused to yield that just respect and due obedience to the court, which every good and well disposed citizen ought to render, then it might have been necessary, in order to effectuate the justice of the case, and to complete the right of the plaintiff in ejectment, to have executed the writ of possession; but surely there can be no objection to his acquiescing in, and submitting to the judgment, thereby rendering compulsion unnecessary, and preventing the further accumulation of costs. The court, therefore, erred in refusing to admit the record in evidence.”

This case comes far short of establishing what is claimed for it. The true state of the case, as is evident from the opinion of the court, is, that after the judgment in ejectment, and the writ of possession sued out, but not executed, the warrantee, RadcliiF, submitted, and gave up possession, acquiescing in the judgment, and thereby rendered the execution unnecessary. Such a case was good evidence of an eviction. But it seems the warrantor insisted that the z-ecovery of the possession should have been by an actual turning out by the sheriff, by force of the writ of execution ,- and that the relinquishing the possession, and submitting to the judgment, was not a legal eviction. To meet this part of the case, wore, the observations of the court directed: for ihe court do not say, that without such a case, the judgment of itself is a sufficient evidence of eviction. The court, to be sure, do say, “it may justly be observed that no better evidence of eviction ought to be required, than the judgment of the court itself.” The court were here only observing upon the credit that ought to be given to a judicial proceeding, and the respect that ought to be paid to the judgment of a court, as a proper reason for the warrantee’s delivering up possession; and this is evident from the phraseology of the sentence, and the judgment of the court;, which is, that the record be admitted (not however as conclusive or sufficient,) evidence of the eviction.

The next case is Watson vs. Kennedy, 1 Marshall’s Rep. 389, which was an action of covenant upon a warranty in a deed. The court say, “the objection was made to reading the record of the action of ejectment; from the nature of the case, the record would prove no fact material in the cause but the eviction; and of this it was admissible as evidence, as has been repeatedly decided by this court.” This case, so far from showing, that in Kentucky, the course of decision has been, that a judgment in ejectment is sufficient evidence of an eviction, in an action of covenant upon a warranty in a deed: it show's that the record (not the j udgment alone,) of the recovery in ejectment, against the war-rantee, by the elder and better title, is admissible (not sufficient or conclusive) evidence, of an eviction.

This case being the later case, goes farther, and shows what is the course of decision in that state, and gives us the right understanding of the cases decided in Kentucky; thus concurring with the decisions in Massachusetts and New York; and to my mind, it is a position not tobe entertained of so highly respectable a court, as that of Kentucky, without the most irrefragable proof — that upon a question of common law, there should be a difference between it and those other courts, equally respectable for learning and talent.

It is, therefore, the opinion of this court, that the judgment of the circuit court be reversed, and that the cause be removed to the court from whence it came, for a new trial to be had therein; on which trial the judge shall charge jury according to the principles of law laid down in this' opinion.

Crabb, J. being of counsel in this cause, did not sit. 
      
       In the case of Jones vs. Dodd, decided at Rogersville, November term, 1820, (a manuscript report of which is in the hands of the reporters,) the supreme court, consisting of judges Haywood, Emmerson, and Whyte, decided the same principles recognised in the above case of Feriss vs. Harshea, viz: that there must be an actual eviction of the warrantee, by paramount title, before an action of covenant can be maintained against the warrantor; and that a verdict andjudgment alone were not sufficient evidence of an eviction.
      That case went off upon a demurrer. The declaration set out the defendant’s covenant of warranty in the usual manner, and then alleged as a breach of his covenant, that a third person had a better and paramount title to the lands warranted, and had recovered a verdict and judgment against the warrantee — to this declaration the defendant demurred.
      The circuit court sustained the demurrei, and entered up judgment for the defendant; from which judgmenthe prosecuted his writ of error to the supreme court, where the judgment of the circuit court was affirmed, and the declaration held bad, for want of alleging an actual eviction; and that a verdict and judg-mentaloneagainstthe warrantee, was not an eviction, nor sufficient evidenceof an eviction. (Vide Kerr vs. Shaw, 13 Johnson's Rep. 236.)—Reporters.
     