
    Frost, Cole, and Crosby against Raymond.
    The words “grant, bargain, sell, alien, and confirm,” in a conveyance In fee,, do not imply a covenant. It is implied by the word " dedi ” or “ gave.”'
    This was an action for breach of an implied covenant. The declaration, laying the venue in Dutchess county, stated that the defendant, in consideration of $750, did grant, bargain, sell, alien, and confirm unto the plaintiffs, in fee, lot No. 65, or 76, in Junius, in Montgomery,'(now Cayuga county,) the plaintiffs to elect, on or before a certain day, which of the lots they would have, with an averment that the defendant was not seised of either of the said lots, or had any estate in either, so that he could not grant, and hath broken his covenant. The case now came before the court on a motion in arrest of judgment.
    Slosson, for the defendant.
    We rely on the following, points: 1, That no covenant arises on the words contained in the declaration; 2. That an eviction ought to have been stated; 3. That the plaintiffs should have averred an election of the lot they would take; 4. That the conveyance is void, as being of a freehold, to commence in futuro ; 5. That the venue is mislaid.
    There is no express covenant in the deed; if there be any, it must therefore be implied. For, allowing the grantor liad not any estate in the land conveyed, his merely selling a fee to which he was not entitled, will not create a covenant. This because the granting an estate in fee is not a warranty of the title in the grantor. None of the words used import a covenant; that can arise only on the word “ dedif and this purely on account of its original feudal acceptation. Co. Litt. 384 a, (n), 332; Touch. 181; *Perk. s. 124. In the conveyance of an inheritance, even the word “enfeoff,” though followed by “grant,” &c., does not imply a covenant. 2 Bac. Abr. by Gwillim, 66. The general principle is, that where there is a conveyance, no covenant shall be added to it which is not expressed or imported by force of the words used. Bree v. flolbech, Doug. 654; Grips v. Bead, 6 D. & E. 606. But allowing there was a covenant implied, the plaintiff has mistaken his remedy. On an eviction of the freehold, covenant will not lie either upon a warranty in deed .or in law, because the recompense is personal, and the plaintiff must have recourse to his warmntict chartce or voucher. 2 Bac. Abr. 76, citing Brownl. 19 ; Keb. 821; Hob. 4; Yelv. 139; Noy, 131. On this account, however, fhe plaintiff is not without remedy; for, if he has been deceived in his purchase he has his action on the case in the nature of a deceit, (n) 332, by Butler, on Oo. Litt. 884 a. At all events, an eviction ought to be shown, as the covenant relied on is one raised by implication of law. Touch.- 161, (n) 2, citing 2 Brownl. 161. On the third point it must be noticed, the conveyance is in the alternative, either of lot No. 65 or No. 76. An election was necessary to give a right of action. It was a condition precedent, and performance of it ought to have been averred. Goodison v. Nunn, 4 D. & E. 761; Kingston v. Preston, cited Doug. 689 ; Duke of St. Albans v. Shore, 1 H. £1. 270. The fourth point needs not any authority; and on the fifth the premises lie in Montgomery, and not in Dutchess; the action, therefore, even when transitory in its nature, if arising out' of the realty, must be where the lands are situated. 1 Com. Dig. 163; Bac. Abr. Yisne, pi. 27.
    
      G. B. Van Ness, contra.
    The question is, whether the words used in the deed, and set forth in the declaration, create, by implication, a covenant or warranty of seisin ? The cases cited against this, apply to conveyances by transmutation of the possession, and not such as operate by virtue of the statute of uses. The consideration paid on a bargain and sale, implies a warranty that the bargainer has a title to sell. As, therefore, the conveyance by bargain and sale is now substituted in lieu .of the old mode by feoffment, the words of the bargain and sale ought to have the same operative effect in creating a covenant, as the word “ dedi ” in a feoffment. This is necessary to make the analogy complete. The proceedings here are correct, because they proceed on privity of *contract. To support the position that an eviction must be shown, it would be necessary for us to first commit a trespass; for, as no title passes, in order to obtain one we must make a tortious entry. Holden v. Taylor, Hob. 12, is in point, to show that to avail of a breach of covenant in law, under words importing a warranty of seisin, entry and expulsion is not required, though, under a covenant for quiet enjoyment, it might be otherwise. It is contrary to reason to urge wé should elect, when the cause of action is that there was no estate out of which we could choose. The same observation applies to the grant being of a fee in futuro. With respect to the venue, it is sufficient to say, our suit is brought on privity of contract, not of estate; it may, therefore, be laid wherever we please. 1 Wils. 165 ; 1 Sell. 243.
    Sbsson, in reply.
    If the covenant be implied, it arises from privity of estate, and the locality of the action continues ; therefore, on the rendendum of a lease, it is local. 1 Saund. 241, (n) 5, ad fin. With respect to the distinction taken as to the applicability of the authorities cited, being only to cases not operating by the statute of uses, it is settled that conveyances taking effect by way of transmutation of use, receive the same construction as those at. common law. Tanner, ex dem. Peclcham and others, v. Mer~ hi, Willes, 180 ; Migden v. Vallier, 3 Atk. 734; Doe v. Mov gan, 3 D. & E. 765.
    
      
       A bargain and sale vests a use in the bargainee, to which the statute executes the possession. Now, as the use raised must be according to the estate out of which it arises, it follows, that a bargain and sale can convey no greater interest than the bargainer haa But a feoffment operates differently ; for, when in fee, it passes the whole estate, and vests in the feoffee ft fee, though perhaps a tortious one, and displaces other estates.
    
   Kent, Oh. J.

delivered the opinion of the court. Several objections are taken to the validity of the declaration. We shall, however, confine ourselves to the first and only important one, viz.: that here was no implied covenant of title. It is exceedingly interesting to the community that this question should be clearly settled, and well understood. We are to examine,

1. Whether a sale of an estate in fee, by the formal and apt words of conveyance, and for a valuable consideration, does of itself imply a warranty or covenant of title. The counsel for the plaintiff contended upon the argument that it did.

2. If it does not, then whether there be any particular word or words in the deed, that by settled construction, have been deemed to amount to such covenant or warranty.

1. It seems upon the first impression to be highly reason .able and just that every person, who, for a valuable con-Bideration, conveys land as bis own, should be held to warrant the title he so undertakes to convey, or that he should render back the *money upon failure of the title. This was the rule of the civil law in respect to the sale of both- real and personal property, concerning which that system scarcely made a distinction, an adequate price implying a warranty. Cod. lib. 8, tit. 45, c. 6; Dig. lib. 19, tit. 1, c. 11, s. 2; Lib. 21, tit. 2; 1 Domat, 79, 82, 83 ; 1 Ersk. Inst. 203. In the early ages of the feudal law, it seems also to have been considered as an obligation upon the lord to give his tenant an equivalent in case of eviction. This appears clearly from the book of feuds, which gives the report of a cáse of an action by the tenant against the lord, for investing him with a feud belonging to another, and from which he was evicted. The lord was there held to restore him another fee of equal value, or the price of it in money. Feud. lib. 2, tit. 85, and 80. But, although the feudal writers speak generally of the lord’s obligation to give the tenant an equivalent in case of eviction, Craig, and after him Sir Martin Wright, thinks this obligation never could havé applied to pure feuds which were gratuitous donations for uncertain military services, without price or stipulated render; and that it could only have applied to improper feuds, where it was reasonable it should apply, as in those cases a price was given, or an equivalent contracted for. Inst, to the Law of Tenures, 27, 32, 39, 40. This very question, whether investiture alone, without any express promise, entitled the tenant on eviction to an equivalent, has, it is said, been much discussed by the foreign Civilians; that it is the prevailing opinion among them, that the seller, without any promise, is bound to give an equivalent, if the fief was originally granted for services done, or in the way of remuneration. Butler’s note 315, to Co. Litt.

But whatever may be our opinions on the point, as an abstract question, or whatever may be the decisions of the civil law, or the feudal and municipal law of other countries, we must decide this question by the common, law of England. It was decided in the case of Seixas and Wood, (Ante, 48,) that, upon a sale of goods without warranty and without deceit, the purchaser took the soundness and quality of them at his peril. We think it is evident that caveat emptor has been always recognized in our law books as a fixed maxim, applicable equally to the transfer of lands and chattels.

It is a settled position that an estate in fee may be created by the usual and solemn forms of convey-anee, without any '^warranty express or implied, and that a conveyance in fee does not ipso facia imply a warranty. If it does, our books would be inconsistent and unintelligible on this subject. “If a man,” says Lord Coke, (1 Inst. 6a, and also say the judges in Buchhurst's case, 1 Co. 1,) “ maketh a feoffment in fee, without warranty, the purchaser is entitled to all the charters and evidences incident to the lands, to the end that he may defend himself; for, as the feoffor is not bound to warrant the lands, he cannot be vouched to warranty and to render in value, but the feoffee is to defend the lands at his peril.” In the case of Boswell and Vaughan, (2 Cro. 196,) in the exchequer, Tanfield, the chief baron, said, “ that if one should sell lands wherein another is in possession, or a horse whereof another is possessed, without covenant or warranty for the enjoyment, it is at the peril of him who buys, and not reason he should have an action by the law, where he did not provide for himself.” So, in the case of Medina and Stoughton, (1 Salk. 211,) Lord Holt observed, “ that if the seller of goods have not the possession, it be-hoves the purchaser to take care, caveat emptor, to hare an express warranty, or a good title; and so it is in the case of land, whether the seller be in or out of possession, for the seller cannot have them without a title, and the buyer is at his peril to see it.” In a much more recent case of Bree and Holbech, (Doug. 654,) the action was brought to recover back money paid for the purchase of a mortgage deed, which afterwards turned out to be a forgery. Lord Mansfield, and the court of king’s bench, ruled for the defendant on this ground, that the assignment contained no covenant for the goodness of the title, except only against the acts of the assignor, and that it was incumbent on the purchaser to look to the goodness of it. This case was afterwards cited and sanctioned by Lord •Kenyon, (6 D. & E. 606,) who said that he did not wish to disturb the rule of caveat em/ptor adopted in that case, and in other cases, where a regular conveyance was made, to which other covenants were not to be added.

The case in Douglas may perhaps be thought to have the less weight as there was a covenant against the grantor’s own acts, and it is a rule that an express covenant will do away the effect of all implied ones. 4 Co. 80, 86; Vaugh. 126; Cro. Eliz. 674, 675; Butler’s notes on Co. Litt. 832; 2 Bos. & Pull. 26 ; 2 Cha. Cas. 19. But the court do not intimate that *they proceeded upon that ground. This they would have done had they relied upon the extinguishment of the implied covenant by means of the express one. They adopted the old rule, that if there'be no covenant of title in a deed, the purchaser takes, at his own risk, the goodness of the title.

After this rule has been so long understood and practised upon, it would be of the most mischievous consequence to establish a contrary doctrine. The parties to deeds know that a covenant is requisite to hold the seller to warrant the title, and they regulate their contracts accordingly. If there be any fraud in the sale the purchaser has his remedy. If one sell land, affirming he had a good title, when he knew he had no title, an action on the case for a deceit will lie. Com. Dig. tit. Action on the Case for a Deceit, A. 8. 1 Fonb. 366.

2. We are next to examine whether there be any particular words in the granting clause of the deed which im ply a covenant.

Grlanville, lib. 7, c. 2, says, generally, that the beirs of donors are beld to warrant their gifts, “ donationss ;” and Braclon, lib. 5, fol. 388, b. 389, a, says to tbe same effect, that “ warranty belongs to all charters of simple donation, and that the donors and their heirs were held to warranty unless the deed expressed the contrary.- But a charter of' confirmation did not include a warranty, unless it contained a gift, and if the grantor say, do et confirmo, or the charter uses the words dare, vendere, &c. such a deed contained a warranty. So if homage was imposed, a warranty was implied.” It is a little singular that the old writers make the gift (donatio) the reason and ground of the warranty. It is the gift by the operative words do or dedi that creates the warranty. Accordingly, Lord Coke, 2 Inst. 276, says, that although dedi and concessi be coupled together, as in the statute de bigamis, yet these words rations donigorogori do appropriate the warranty to dedi only.

It is our duty to acquiesce in the law as we find it, but we are very naturally tempted to agree with Sir M. Wright, that warranty, instead of being attached to a fee, which was a pure gift, ought more justly to have accompanied a fee, which was created for a valuable consideration.

The statute de bigamis, 4 Edw. 1, c. 6, is very material to ascertain the ancient law on the subject, since it was only declaratory of the common law. 2 Inst. 274. It says “ that *in deeds wherein is contained dedi and concessi without homage, or without a clause of warranty, and to be holden of the givers and their heirs, by certain services, it is agreed that the givers and their heirs shall be bound to warranty. And where is contained dedi and concessi, &c. to be holden of the chief lord of the fee, and not of the feoffors or their heirs, reserving no services without homage, or without the aforesaid clause, their hoirs shall not be bound to warranty, notwithstanding the feoffor during his own life by force of his own gift shall be bound to warrant.”

By this statute, then, dedi is declared to amount to a Warranty for the life of the feoffor; 4 Oo. 81, a, and this is the word that Coke considers, (2 Inst. 275, b,) as the real operative word to create a warranty in law, and it hath this effect whether the conveyance in which it is found operate as a feoffment, release, or confirmation.

The statute of quia emptores, 18 Edw. 1, which followed soon after, prohibited all subinfeudations, and put an end to homage, which was, in those days, parcel of the tenure reserved to the feoffor, by declaring that it should be lawful for every freeman to sell his own lands, and that the feoffee should hold the lands of the chief lord of the fee by the same services that the feoffor was bound to before. This statute accordingly changed, in a great degree, the operation of the word dedi, by confining the implied covenant it contained to the life of the feoffor, according to the directions of the statute de bigamis, except in cases of gifts in tail and leases for life. 2 Inst. 275. Since that time it has been well understood and declared through all the books, that the word dedi, in a deed in fee, amounted to a warranty in law to the feoffee and his heirs only during the life of the feoffer. Co. Litt. 334, a; Touch. 180, 182; F. N. B. 134, H; 2 Bl. Com. 300.

This word do or dedi, which is the apt word of feoffment, as that conveyance was anciently called a donatio, is not, however, the word used in the deed before us. The only word, in the present case, that can be considered as implying a covenant, is grant; (concedo ;) Co. Litt. 9, a, b, and that word is carefully to be distinguished from the other; for it is well settled that concessi, in a feoffment, or estate of inheritance, implieth no warranty. It only creates a covenant in a lease for years. Co. Litt. 384. a; Bac. Abr. tit, Covenant, B; 5 Co. 17, a; 2 Roll. Rep. 399; Palm. 388; Carth. 98; Pincombe and Rudge, Hob. 3; Yelv. 139; Cro. Eliz. 674. Sir Geoffry Palmer’s opinion, Butler’s *note 332, and 2 Col. Jur. 437; 3 Keb. 188, 617. Brown v. Haywood, Hoy, 131; Saunders' on Uses, 406, 407, note.

We are not able to assign a very solid reason for this distinction between the force and effect of the words “give," and “ grant." It arose from artificial reasons derived from the feudal law. The distinction is now become merely technical, but it is sufficient that it clearly exists, and we are certainly not at liberty to confound the words, or change their established operation.

The other words in the deed, “ bargain, sell, alien and confirm,” have never been considered as implying any covenant whatever in any case. The only dictum that appears to oppose the law as now laid down, is that of Lord Eldon, in the case of Browning and Wright, 2 Bos. & Pull 21. He there says that the words grant, bargain, sell, enfeoff and confirm, import a covenant in law. Wo admit and have shown that the word grant imports such a covenant in an estate for years, and so also does the word enfeoff. But in the case referred to they were used in a deed in fee; and if he means (as it would seem that he did) that they there also imported a covenant, we cannot agree to that opinion, however respectable it may be, as it is opposed to the whole stream of the book authorities. We accordingly conclude that in the present case the motion in arrest of judgment ought to be granted.

Livingston, J.

Though I concur in the opinion delivered, yet as some further reasons influence my own, I shall beg leave to state them. The principal question, and on which I shall decide this cause is, whether the term grant, in a modern deed or conveyance, implies a covenant of warranty or seisin, so as to entitle the grantee to his action of covenant for damages against the grantor, in case the latter, at the time of its delivery, were not seised of the premises, or had no estate or title therein?

The attempt to recover damages for a breach of covenant on a deed containing nothing more than the granting words common to almost every instrument of this kind, and in which no express covenant was to be found, struck me aa novel, and in its consequences highly important. In prac» tice, every purchaser of land, who intends to have recourse in case of eviction against the former proprietor, takes care to have inserted in the instrument of conveyance the necessary covenants for that purpose, thereby ascertaining the precise extent of his liability. When purchases are made upon an understanding *that the same are tobe at the risk of the grantees, who are to have no remedy in case of defect of title, (which cases are very common,) these express covenants ara omitted, and deeds of the present form are used; with a full knowledge of this practice, it could not escape me, that to imply a covenant of this kind from any of the granting words of such a conveyance, would he to subject many persons to damages contrary to good faith and the understanding of all the parties to the contract. To such an interpretation, therefore, which was in my opinion to be avoided if possible, I early determined not to give my assent, unless constrained by decisions from which it would have been a dereliction of duty to depart. I could not perceive any magic in the word grant, nor why it should import a covenant any more than the other words with which it was connected. They are all inserted for the single purpose of transferring the premises to the grantee, and neither collectively nor separately convey, to professional or other minds, an idea of a particular covenant or obligation on the grantor’s part. When, in addition to the practice which has been mentioned, it is recollected that the price of land depends as much on the nature of the grantor’s title as on its intrinsic value, it is unreasonable that he should, for an eviction, make compensation in damages to a purchaser, who was apprized of the uncertainty of his estate, and for that very reason gave a smaller consideration for it, upon the express condition, perhaps, of taking a deed without any covenant whatever. If, however, the law be otherwise, the defendants must submit, however contrary to their expectations, or to the understanding of the plaintiff himself. But after a careful attention to the authorities cited, I can discern nothing in them from which the present demand can derive any support. On the contrary we shall discover that this “ famous monosyllable,” as Butler terms it, may be used without any imminent danger to a grantor, and may be frequently omitted without prejudice to a purchaser.

From Littleton it appears that the word warrantizare alone would create a warranty in deeds, and that neither defendere nor acquietare, although both of them more significant terms than concederé, would have that effect. His expression “ mil autre verbe en nostre ley” is very strong. Sir Edward Coke, in his commentary on this section, distinguishes between warranties annexed to an inheritance, and to a chattel real — of the former some are warranties in deed, and some in *law — á warranty in deed, or an express warranty, is created only by the word warrant, but warranties in law are created by many other words: dedi is a warranty in law to the feoffee and his heirs during the life of the feoffor; but concessi, or I have granted, in a feoffment or fine implies no warranty. The word exchange doth also imply a warranty ; this is also the case on a partition. Butler, in his note on this passage, remarks, that from what is here said, “ it most clearly appears that the word grant, when used in the conveyance of an estate of inheritance, does not imply a warranty.” This also is the opinion of Sir G-eoffry Palmer. ■“ The word grant,” says he, “ in a lease for years, is a covenant in law, or a general warranty. But in an estate of inheritance, where the fee passeth, the word grant is neither a covenant in law nor a warranty.” So also in 3 Keb. 188, the court inclined to “ think that the words concessi and feoffavi” did not make a warranty in a case of inheritance; and Sir William Blackstone, in his Commentaries, after speaking of a feoffment, informs us, that “ in other forras of alienation, gradually introduced since the statute of quia emptores, no warranty whatsoever is implied — they bearing no sort of analogy to the original feodal donation. And that, therefore, in such cases, it became necessary to add an express clause of warranty to bind the grantor and his heirs, which is a kind of covenant real, and can only be created by the word warrantizo or warrant.” The same author observes, that after warranty usually follow covenants, whereby either party may stipulate for the truth of certain facts, or may bind himself to perform something to the other. Thus the grantor may covenant that he had a right to convey, or for the grantee’s quiet enjoyment, or the like.”

The language of all these authorities, and of several others, which are not here noticed, is uniform, and too intelligible to be misapprehended. Without, therefore, in traducing a new rule of law, or considering as constructive, or implied warranties, or covenants, wrards which in deeds in fee have never yet been received in that sense, it is impossible the plaintiff can recover. Nor is there anything hard or inequitable in denying- to the word grant, and to all the others here used, a sense which, ex vi termini, no one of them imports, and which it is a hundred to one was not contemplated by either party. In conveyances of real estate, there must always be danger in implying anything that is not. stipulated *in clear and precise terms. This is the safest way of determining the extent of the grantor’s responsibility. Whether he is to defend the property against particular encumbrances, or against those who claim under him, or against all the world, ought not to depend on the equivocal or ambiguous meaning of terms used in the granting clause, but on plain and express covenants, which are now therefore uniformly inserted, where it is intended to render the grantor or his heirs liable in case of eviction or defect of title. The de^ fendant must, in my opinion, have judgmenta

Judgment arrested. 
      
       What makes a covenant, see Bull v. Follett, 5 Cow. 170; Hallett v. Wylie, 3 J. R. 44. As to express and implied covenants, see Barney v 
        Keith, 4 Wend. 502; Kinney v. Watts, 14 Wend. 381; Grannis v. Clark, 8 Cow. 30; Barnum v. Childs, 1 Sandf. 53; Cole v. Hawes, 2 J. C. 203; Vanderkan v. Vanderkan, 11 J. R. 122; Kent v. Welch, 7 J. R. 258.
     