
    St. John and Tousey vs. Palmer and Burwell.
    A covenant for quiet enjoyment in a deed of lands goes only to the possession; not to the title. Per Bronson,. J.
    To maintain an action on the covenant it must appear that there has been an eviction or disturbance of the posséssion before suit brought; and consequently if the covenantee never had the possession, or if he had it and retains it still, the action will not lie. Per Bronson, J.
    Where the lands conveyed are wholly unoccupied, the covenantee acquires the constructive possession the moment the deed is executed, and is in such a condition that he may be evicted. Per Bronson, J.
    The eviction need not be by process of law ; but it is enough that the covenantee has voluntarily yielded the possession to the rightful owner, or that such owner, the premises being vacant, has entered and taken possession. Per Bronson, J.
    In an action on a covenant for quiet enjoyment, it appeared that the premises were unoccupied when the plaintiff purchased, and so remained until the suit was commenced t that after the purchase, one D., having a prior mortgage executed by the defendant, foreclosed it in chancery, making the plaintiff a party, and purchased in the premises himself; that the decree of foreclosure contained the usual clause directing the purchaser to be let into possession &c.; and that since D.’s title became perfect, he had offered to sell the premises and had paid taxes thereon. Held, that the circumstances amounted to an eviction of the plaintiff, though no writ of assistance or other execution had been taken out upon the decree.
    Cowen, J. was of opinion that the covenant was broken the moment the title passed to D.
    Covenant, tried before Kent, C. Judge, at the New-York circuit, in September 1841. On the 8th of August, 1836, the defendants by their deed conveyed to the plaintiffs a lot 30 feet by 120 in the city of Buffalo, with a covenant for “ peaceable possession” or quiet enjoyment. On that covenant the action was brought. Prior to giving the deed the defendants had mortgaged the premises to Joseph Dart, jun. After the plaintiffs purchased, Dart foreclosed the mortgage in chancery, and the defendants as well as the plaintiffs were made parties to that suit. The decree contained the usual clause that the purchaser of the premises “ be let into the possession thereof,” and that any of the parties to the suit who might be in possession of the premises “ deliver possession thereof to such purchaser, on production of the master’s deed and a certified copy of the order confirming the report of sale.” Dart became the purchaser, and the master’s deed to him was dated April 16, 1840. The report of sale was duly confirmed. The lot was vacant and unoccupied when the plaintiffs took their deed, and they have never been in the actual possession of it since, nor has Dart nor any one else. Dart, after receiving the master’s deed, offered to sell the land in fee to the plaintiffs, and paid taxes on the premises. The defendants moved for a nonsuit, on the ground that there had been no eviction, and no breach of the covenant. The judge denied the motion, and charged the jury that, inasmuch as the premises were vacant lands, entirely unenclosed, it was not necessary for the plaintiffs to prove any other eviction or taking possession than what they had proved; that the rule requiring actual eviction did not apply to vacant lands, the plaintiffs having submitted to the decree; and that the plaintiffs were entitled to a verdict. Verdict accordingly. The defendants now moved for anew trial on a case.
    
      
      J. L. Talcott, for the defendants.
    
      S. Stevens, for the plaintiffs.
   By the Court, Bronson, J.

The covenant for quiet enjoyment goes only to the possession—mot to the title; and before the covenantee can recover he must show an eviction or disturbance of the possession. (Waldron v. Mc Carty, 3 Johns. 471; Kortz v. Carpenter, 5 id, 120; Kerr v. Shaw, 13 id. 236; Webb v. Alexander, 7 Wend. 281.) If the covenantee never had .the possession, or if he had'the possession and retains it still, it is impossible that there should have been an eviction, and no action will lie, however hard the case may seem to be. The grantee should have protected himself by other covenants. In the cases which have been cited—and there are others of the same general character—the covenantee either remained in possession, without any actual ouster before suit brought ; or else he never had any possession, either actual or constructive. In the case before us, as the premises were" wholly unoccupied, the legal seisin followed the title. The plaintiffs had the constructive possession the moment they received the deed, and could have maintained trespass against any one who should enter on the land without title, They were in such a condition that an "ouster or disseisin might follow.

Now; have the plaintiffs been evicted? ■ When Dart acquired-a paramount "title under the" mortgage, the legal seisin—the premises still being unoccupied^—immediately passed from the plaintiffs to him. He then had the- constructive possession, and could maintain trespass against the plaintiffs, as well as any one else who should enter on the land. This" would not be enough without showing that Dart ha4 asserted his title to the land. The mere fact of a superior title in a third person can never amount to a breach of the covenant for quiet enjoyment. The possession of the covenantee must be disturbed—he must be evicted—by the person having the better title. It is not necessary, however, that he should be evicted by legal process: it is enough that he has yielded the possession to the rightful owner, or that such owner has entered—the premises being vacant— and taken possession. (Greenvault v. Davis, 4 Hill, 643.) Dart has asserted his right. He filed a bill in chancery for the purpose of perfecting his title under the mortgage, and made the defendants, as well as the plaintiffs, parties to the suit. And he not only acquired a perfect paper title by the foreclosure and sale, but there was a decree against all the parties to the present action that he should be let into possession of the property, and that possession should be delivered to him. All parties have acquiesced in the decree. As there was no actual possession in the plaintiffs or any one else, no formal act was necessary for the purpose of giving Dart the complete enjoyment of his legal rights. It would have been an idle ceremony to issue a writ of assistance or any other execution on the decree. The decree was executed the moment Dart received the master’s deed. And thus the constructive possession, or legal seisin, which was in the plaintiffs, was, by the acts of the parties and the operation of law transferred to Dart. He has since exercised acts of ownership over the property, and no one has questioned his right to do so. I think there has been such an eviction of the plaintiffs as amounts to a breach of the covenant.

Although this is, in several particulars, like the case of Waldron v. McCarty, (3 Johns. 471,) there is still a plain distinction between the two cases. There, the averment was that the plaintiff was obliged to purchase the premises under the decree of foreclosure, “ in order to prevent his being deprived and ousted of the same;” and on demurrer it was held that this did not amount to a breach of the covenant. But the plaintiff was in the actual possession of the land, and the possession had never been changed. In Kerr v. Shaw, (13 John. 236,) a person hav$ng the paramount title had recovered in ejectment against the covenantee■ but as no execution had been issued on the judgment, and the possession had not been changed, it was held that there was no eviction. There again, the covenantee was in the actual possession of the land, and continued to hold it when the action was brought on the covenant. But here, as there was no actual possession in the plaintiffs or any one else, no execution or other formal proceeding was necessary for the purpose of giving full effect to the decree.

We think the case was properly disposed of at the circuit.

Cowen, J., was of opinion that the covenant was broken the moment the title passed to Dart, and that the action would lie although Dart had done nothing by way of asserting his title.

New trial denied. 
      
      
         In North Carolina, where it appeared that, at the time of the execution of the deed to the plaintiff and previous thereto, a third person was in possession of the premises under a paramount title; held, sufficient to constitute a breach of the covenant for quiet enjoyment. (Grist v. Hodges, 3 Dev. 198.) The same doctrine was acted1 on in Duval v. Craig, (2 Wheat. 45.) In this state, however, the rule has long since been settled otherwise. (See Kortz v. Carpenter, 5 Johns. Rep. 120.)
     