
    [Sunbury,
    July 2, 1827.]
    STROHECKER, who survived GARVER, against GRANT and others, Executors of GRANT.
    Where a covenant is made by one man for the benefit of another, an action must be brought in the name of the party to whom it was made, and not by him for whose benefit it was made.
    A count against executors on their own covenant in a deed executed by virtue of a power in the will, and in execution of an agreement made by the testator, cannot be joined with one against them on the covenants of the testator. Such defect is not cured by a verdict.
    This cause, which was an action of covenant brought by John Strohecker, who survived John Garver, against George, Deborah, and William Grant, executors of Thomas Grant, deceased, was tried before Rogers, J., at a circuit court for Northumberland county on the 18th of April, 1827, when the jury under the direction of the judge gave a verdict for the plaintiff. A motion was made on behalf of the defendants for a new trial, which having been overruled, an appeal was entered to the Supreme Court in Bank.
    The cause had been removed by certiorari from the Court of Common Pleas of Northumberland county, where, on the 23d of April, 1826, Mr. Weaver, administrator de bonis non with the will annexed, was substituted in the place of the original defendants, who were discharged from their office.
    The declaration, contained three counts, the first of which set forth that Thomas Grant in his lifetime; viz. on the 26th of April, 1S15, by his agreement of that date, made with Daniel Strohecker, who was the agent of John Strohecker and John Garver, duly authorised, and in consideration of sixly-dollars an acre for the land therein mentioned, to be paid to the said Thomas and his executors, did covenant and agree with the said John Strohecker and John Garver by their agent the said Daniel Strohecker, to sell and assure unto the said John Strohecker and John Garver, their heirs and assigns, all that certain tract of land, &c., free and clear of all incumbrances, done or suffered by the said Thomas; and the said Thomas did then and there for himself, his executors, and administrators, covenant and agree to and with the said John Strohecker and John Garver, by their agent aforesaid, that before and at the time of executing the aforesaid articles of agreement, he the said Thomas was the true proper, sole, and lawful owner of the said premises, and had good right and lawful authority to sell, grant, and assure the same free and clear of and from all other grants, bargains, and incumbrances whatsoever. And the said plaintiff saitb, that the said Thomas, afterwards, to wit, on the 12th of May, 1815, made his last vf ill and testament, whereby he appointed the.aforesaid Deborah, George, and Williamhis executors, and gave them full authority to sell and convey the land of which he died seised, and to execute fully the contracts made by him in the same manner as if he were living; after whose death the executors aforesaid, by their deed dated the 15th of June, 1816, duly executed, acknowledged and recorded, in pursuance of the power vested in them, and in that capacity only, in compliance with the said agreement, in consideration of sixteen thousand five hundred and three dollars and thirty-two cents by the said John Strohecker and John Garver paid to the said executors, and in execution of the articles of agreement aforesaid, did grant, bargain, sell, convey, gnd assure unto the said John Strohecker and John Garver, their heirs and assigns, the aforesaid tract of land,&c., and by the same, the said Deborah, George, and William, as executors aforesaid, and in that capacity, did covenant that they, the said executors, would warrant and defend the premises to the said John Strohecker and John Garver, their heirs and assigns, against the lawful claims of all persons whatsoever; and the said John Strohecker and John Garver, there afterwards on the same day and year last aforesaid, entered into the said tract of land, and became possessed .thereof, and ought to have and enjoy the same as their lawful estafe in fee simple, according to the aforesaid covenants of the said Thomas in his lifetime, and his said executors since his death; but neither the said Thomas in his lifetime, nor his executors since his death, have kept their and each of their covenants aforesaid respectively, but have, broken the same; for that he the said Thomas was not lawfully seised in fee of said tract of land, and had not good right to sell and convey the same to the said John Strohecker and John Garver, in fee simple, and that he hath not, nor have his executors warranted and defended the same to the said John Strohecker, who survived the said John Garver, although severally requested so to do; but a certain Rebecca Stedman being the rightful owner of ninety-five acres, part of the said tract of land sold and conveyed in fee to the said John Strohecker and John Garver, taken from, &c., of the breadth, of, &c., on the river, &c., of the value of six thousand dollars, the said Rebecca recovered judgment for her seisin and possession, &e., against the said John Strohecker, who survived the said John Garver and his tenants, at a Court of Common Pleas held, &c., and by force of an execution issued thereon, she the said Rebecca, afterwards, to wit, &c., entered into the said ninety-five acres, and became legally seised thereof, and now legally holds the same in fee, and so the said Thomas in his lifetime, and his said executors since his death, have not kept their covenants aforesaid, but have broken them, to the damage, &c.
    The second count set forth, that Thomas Grant, in his lifetime, by articles of agreement dated the 26th of JLpril, 1815, made between him and the aforesaid John Strohecker and John Garver, in consideration, &c., did grant, bargain, and sell unto, the said 
      John Strohecher and John Garver, in fee simple, all that certain tract, &c., and the said Thomas, for himself, his executors, and administrators, did covenant and agree with the said John Strohecker and John Garver, that he was legally seised in fee of the premises, iree of all incumbrances done or suffered by himself, and at the time of executing the said articles, and before, was the sole and lawful owner of the said tract of land, and had good right and lawful authority to grant, convey, and assure the same- free and clear of all other grants, bargains, and incumbrances whatsoever; that the said John Strohecher and John Garver paid the purchase money and entered into possession of the premises. It then averred, that the said Thomas Grant, at the time of executing the agreement, was not seised in fee of the said tract of land, and had not good and lawful authority to convey and assure the same, and that the premises were not free and clear of all other grants, bargains, and incumbrances whatsoever, but that theright and title to ninety-five aeres, part of the said tract, was in a certain Rebecca Stedman, who recovered the same by due process of law, &c. ■
    The third count set forth the agreement, dated the 26th of April, 1815, between Thomas Grant and John Strohecher and John Garver, the death of Thomas Grant, after having made a will by which he appointed the defendants his executors, with power to sell, as stated in the first count, and that the defendants, by virtue of that power, and in pursuance of the agreement, on the 14th of June, 1816, did, by their deed, grant, bargain, sell, alien, enfeoff, release, and confirm, unto the said John Strohecher and John Garver, their heirs and assigns, the aforesaid tract of land, &c. That the said executors, in that capacity, did covenant, promise, and grant, to and with the said John Strohecher and John Garver, that the said Thomas. Grant, in his lifetime, and at and before the execution of the agreement, was the proper, sole, and lawful owner of the premises, and died seised thereof. That the defendants had in themselves, as executors, good right, full power, and legal authority.to grant, bargain, sell, and release, and confirm the same to hold as aforesaid, and that they were free and clear, and freely and clearly exonerated, discharged and acquitted of and from all other gifts, grants, bargains, sales, and, incumbrances whatever, done or suffered, either by the said Thomas in his lifetime, or by his executors since his death; and that the said executors, in that capacity, would warrant and defend the same against the lawful claims and demands of all persons whatsoever. The count then denied the performance of the covenants by the defendants, and the eviction of ninety-five acres, part of the premises conveyed, by the recovery thereof by Rebecca Stedman.
    
    To this declaration, the defendants pleaded non est factum, non infregerunt conventiones, non damnificatus, award and satisfaction, covenants performed, &c.; to which they afterwards added the following plea; — -
    
      That on the-day of-, Jl. D.-, an amicable partition was had between the said John Strohecker and the heirs of the said John Garver, deceased, whereby the heirs became seised of a moiety of the land conveyed by the executors of Thomas Grant to John Strohecker and John Garver, which moiety included the quantity of 95 acres, of which the plaintiff in his declaration alleges an eviction by a certain Rebecca Stedman; and, being so thereof seised, the heirs of the said John Garver sold, and by their deed, with covenants of special warranty, dated the 29th of Jlpril, 1820, conveyed {inter alia) for a valuable consideration, the said ninety-five acres to a certain George Kremer, who, after the eviction aforesaid, compromised with the said executors of the said Thomas Grant, and settled with them all claim for damages sustained by reason of the said eviction,, and hath received from them full compensation therefor; and the said defendants for farther plea allege, that, in consequence of the partition so as aforesaid, between the said John Strohecker and the heirs of the said John Garver, no right of action on the covenant of general warranty in the conveyance of the executors of the said Thomas Grant to the said John Strohecker and John Garver could accrue to the said John Strohecker; for that he still retains possession of, and remains in the full and undisturbed enjoyment of the portion of land allotted to him in the amicable partition, so as aforesaid made, and the defendants further say, that the estate of the said Thomas Grant, deceased, is not liable to any damages, on any of the covenants in the said declaration of the said plaintiff mentioned.
    And for further plea, the defendants say that the ssiJJohn Strohecker and John Garver were not parties to the said agreement with the said Thomas Grant, nor was either of them, nor were they or either of them bound thereby; but that the same was made by the said Thomas Grant with Daniel Strohecker, the said Daniel acting therein in his own right and behalf, and without any authority from the said John Strohecker and John Garver, or either of them, as, either of their agent or attorney in the said agreement, &c.
    Upon the evidence given under these pleadings, which, as the opinion of the court turned upon the sufficiency of the declaration need not be stated, His Honour instructed the jury that the plaintiff was entitled to recover, and that the measure of damages was the purchase money paid for the land, with interest from the time of eviction.
    
      Hepburn and Marr, for the appellants.
    
      Frick and Greenough, contra, cited Collins v. Weiser, 12 Serg. & Rawle, 97, and 5 Johns. 59.
   The opinion of the court was delivered by

Duncan, J.

This is an appeal from the decree of 'Judge Rogers, who decided in favour of the plaintiff generally; merely for the purpose of having the whole case brought before this court and disposed of.

The topics here- discussed have been principally on the form of the declaration, which the defendants contend is so substantially vitious that no verdict could cure it, and on the misjoinder; uniting in the same action demands in different rights.

It is the duty of judges to preserve the forms of actions, and parties are not to be permitted to convert them by their own contrivances. Innovations of this kind should be resisted. The doctrine of pleading is founded in strong sense. Its excellence consists in its simplicity, in bringing some precise fact to issue; though certainly it has been often misapplied. A man shall not be permitted to spread his net so that with one sweep he may catch every thing: this would mislead his opponent, perplex the court and jury with multifarious and inconsistent claims, and render it necessary to render different judgments in the same action. .

The objections to the declaration here,.are, that they jumble together articles made with the testator, containing his own covenants and different covenants with the executors, on their personal agreement with different persons; on which no good verdict can be rendered, and on which it would be necessary to render several judgments very distinct in their nature, and issue execution in different rights, and which, in the distribution of assets, would make a contract of the executors to come in as a specialty debt.

This declaration is open to all these objections, and is incurable. The first count is on a covenant entered into between Daniel Strohecker, as the agent of John Strohecker and Daniel Oarver, lawfully authorized to make these covenants with the testator, and they allege an execution of the contract by the conveyance made by his executors to John Strohecker and John Oarver, and that they, as executors, entered into a covenant of general warranty; and they allege a breach in the covenant of seisin in Thomas . Grant’s life, and a breach of their own covenants of warranty, as executors. Now, this is all misconceived; for where a covenant is made by one man for the benefit of another, the action must be brought in his name who made the covenant, and not the person benefited thereby. Not so in assumpsit; for there the person for whose benefit the promise is made may support the action. On the covenant of seisin by Thomas Grant, and the eviction under a title from himself, the whole money paid is recoverable. The injury is not a nominal but a permanent one, and affords one cause of action: it would have been different if there had been no eviction, for there the damages would be nominal, and the real damages sustained afterwards might be recovered. The covenant was broken, once for all, and all possible damages sustained. There could be no joinder of action, because, in the covenant of general warranty which'the executors entered into, they individually, jointly and severally bound themselves, and. this would absorb the implied covenant in the words grant, bargain, and sell. On this count, then the -judgment, if the count be good, must be several, against them in their own right, and the execution of their own proper goods; and against them, as executors de bonis testatoris, on the second count; and, if this judgment was recovered against them on the covenants in their deed, and could be de bonis testatoris, that it would be of the assets, as a specialty debt, or a specialty of the executors, and not of the testator.

The second count, which is principally relied on by the plaintiff, is on the covenant in the articles of agreement with Thomas Grant. This states an agreement between John Strohecker and John Garver and Thomas Grant. Whereas the articles, of which proferí was made, was one between Thomas Grant and Daniel Strohecker; besides, it could not be joined with an action in which Daniel could alone be the legal party.

The third count, is on the conveyance made by the defendants to the plaintiff, and purports to be on the general warranty, in their character of executors. Whereas the covenant is, that they, the said George, Deborah, and William, and their heirs, the aforesaid tract of land, shall and will warrant, and for ever defend, against all persons.” It is not, that the estate of Thomas Grant, shall warrant and defend, or that they, as executors, shall warrant and defend, but that they and their heirs shall do so.

The action against the defendants on their own covenants, cannot be joined with one against them |n the covenants of the testator; the plea and judgment could not be the same, and that always designates where actions may be joined. Gilb. H. C. P. 7. 2 Wils. 921. But a plaintiff can no more join an action in his own right with one as executor, than he can against a man in his own right, and as executor. Cook, 235. L. R. 891. 2 Stra. 1271.

The ease from Strange and Raymond certainly proves, that a count for money had and received to the executor’s use, as such, may be joined to one for money had and received to the use of the testator, or, at least, that a verdict will cure it; and that a count on a promise by the executor, as such, may be joined with'a promise made by the testator; but declarations on bare assumpsits, are widely different. A defendant who promises out of the assets, promises as executor. The judgment against him would be de bonis testatoris, but not so of bonds; for a bond given to the executor, cannot be joined in an action on a bond given to the testator; and, in tracing up this joinder of actions, this doctrine will be found to prevail. This declaration is bad; no verdict can cure it; no judgment can be rendered on any one count, for the evidence given could not support any one count. And then this joinder of persons, and of different things, cannot be cured by verdict. Here the action was not tried against George, Deborah, and William Grant, but Martin Weaver, administrator, with the will annexed. The court will refrain from giving any opinion, as to the nature of the action, that might be supported against the defendants, or whether any could, and what would in any court be the extent of damages recoverable. It is here a matter worthy of consideration, whether, as these covenants for title, all Of which run with the land and pass to the assignees by the common law, who may have an action against the vendor and his representatives. 1 Rolls. Ab. 521. Corke Charees, 503, 5. Sir W. Jones, 406. Sudg. Vend. , and as the covenants relate to the land, and were unbroken in the lifetime of George Kremer, and so long as the seller had not a good title there is a continuing breach, and it is not like a covenant to do an act of solitary performance, which not being done, the covenant is broken once for all, an action could be supported in the name of the present plaintiff, who has no title to the land, or by any one; as the assignee has received satisfaction for the covenants broken. These, however, are mere suggestions, not matters decided, or on which the court have given any opinion; but, for the reasons stated above, the judgment is reversed.

Judgment reversed.  