against a wrongful entry; and, therefore, if a purchaser be disturbed in his possession by a person having no title, he has a remedy at law against the wrong doer; and if he be legally evicted, he may recover against the vendor, in an action on the covenant. Lord C. J. Vaughan (f) adduces the four following reasons why the covenants should not extend to tortious evictions: 1, It is unreasonable, as the vendor cannot prevent the entry; 2, the vendee has his remedy against the wrong-doer, and therefore ought not to charge an innocent person; 3, the vendee would have a double remedy for the same injury; 4, it might open a door to fraud, for the purchaser might secretly procure a stranger to make a tortious entry, that he might charge the covenantor with an action (1). And there is a case in the Year Books, in the reign of Hen. 8, where the question was, whether a general covenant in a lease should extend to an eviction by one who had no right. Englefield said, that he should not have a writ of covenant against his lessor when he is ousted by tort, for there is no mischief, because he may have a writ of trespass, or an ejectione firma against the person who ousted him; but if he was ousted by one who had a title paramount against whom he could have no relief, then he *may have a writ of covenant against his lessor, Quod fuit concessum per plusieurs (g) (2). 6. But where a vendor covenants to indemnify a purchaser (f) Vaugh. 122. (9) T. 26 H. 8, pl. 11. tion. Fowler v. Poling, 6 Barbour Sup. Ct. Rep. 165; Hamilton v. Cutts, 1 Mass. 349; Stone v. Hooker, 9 Cowen, 154; Greenvault v. Davis, 4 Hill, 6447 Sterling . Peet, 14 Conn. 245; Loomis v. Bedel, 11 N. Hamp. 74; Pitkin v. Leavitt, 13 Vermont, 379; Smith v. Shephard, 15 Pick. 149; Sprague v. Baker, 6 Mass. 586; Mitchell v. Warner, 5 Conn. 521; Booth v. Starr, 5 Day, 282; Biggus v. Bradley, 1 M'Cord, 500; 2 Greenl. Ev. §244. But in case the grantee surrenders, or suffers the possession to pass from him without a legal contest, he takes upon himself the burthen of showing, that the person who entered, had a legal title paramount to that of his grantor. Fowler v. Poling, and the other cases above cited. Edmonds, J. in the above case of Fowler v. Poling, notes a difference between an eviction under a covenant for quiet enjoyment, and one under a covenant of warranty, holding, that the former covenant relates only to the possession, and the eviction is merely required to be of lawful right, while the latter relates to the title, and the eviction must be not only by lawful right, but by paramount title. 6 Barbour Sup. Ct. Rep. 170, 171. See Waldron v. M'Carty, 3 John. 471; Kortz v. Carpenter, 5 John. 120; Whitbeck r. Cook, 15 John. 483; Webb v. Alexander, 7 Wendell, 281; Grist v. Hodges, 3 Dev. 200; 2 Greenl. Ev. §213. (1) See Davis v. Smith, 5 Geo. 274. (2) See cases cited in note (1) above. But the covenant of warranty is not broken by the fact that a third person is in possession of the land at the time of making the deed, and has afterwards acquired a title to the land by force of the statute of limitations; the covenantee having suffered it by his own laches, in not sooner recovering possession from said third person. Phelps v. Sawyer, 1 Aiken, 150. against a particular person by name, there the covenant shall extend to an entry by that person, be it by droit or tort, for it is to be presumed that such person had an interest (h). 7. And where the covenantor himself does any act asserting a title, it will be a breach of the covenant, although he covenanted against lawful disturbances only, and the act done by him was tortious, and might be the subject of an action of trespass (i), (1), and if the covenant extends to his heirs or executors, the rule equally applies to them (k). The contrary, however, was formerly holden (1). It must, nevertheless, be an act asserting a title; therefore, if the seller went on the estate to sport, the purchaser could not maintain covenant (m); nor would an entry for the purpose of personally assaulting the purchaser be a breach of covenant (n). 8. So a covenant against all claiming or pretending to claim any right extends to a tortious eviction (o) (2). 9. And where a general covenant is made a limited one by an exception, the exception will be strictly construed; as where the exception in a covenant for quiet enjoyment was of the Queen (who had the reversion in fee), her heirs and successors, existentibus regibus vel reginis Angliæ, an eviction by her patentee was held to be a breach of the covenant and not within the exception (p). 10. And whatever opinion may anciently have been entertained (q), it is now clear, that a suit in equity, by which the purchaser is disturbed, is within a covenant for quiet enjoyment against disturbances generally (r) (3). It is, however, customary to expressly extend covenants for title to equitable charges, disturbances, &c. (h) Foster v. Mapes, Cro. Eliz. 212; Hob. 35; 1 Ro. Abr. 430, pl. 13. See Hayes . Bickerstaff, Vaugh. 118; Nash v. Palmer, 5 Mau. & Selw. 374. Fowle v. Welsh, 1 Barn. & Cress. 29; 2 Dowl. & Ryl. 133. (i) Lloyd v. Tomkies, 1 Term Rep. 671; Cross v. Young, 2 Show. 425; S. C. MS. (k) Forte v. Vine, 2 Ro. Rep. 19 (2d number). (1) Davie v. Sacheverell, 1 Ro. Abr. 429, pl. 7. (m) See Seddon v. Senate, 13 East, 72. (n) Penn v. Glover, Cro. Eliz. 421. (0) Chaplain v. Southgate, 10 Mod. 384; Com. 230; Perry v. Edwards, 1 Str. 400. (p) Woodroff v. Greenwood, Cro. Eliz. 517. (2) Selby v. Chute, Mo. 859; 1 Brownl. 23; Winch, 116; 1 Ro. Abr. 430, p. 15; and see 3 Leo. 71, pl. 109. (r) Calthorp v. Hayton, 2 Mod. 54; Hunt v. Danvers, T. Raym. 370. (1) Sedgwick v. Hollenback, 7 John. 376; Dyett v. Pendleton, 8 Cowen, 727; S. C. 4 Cowen, 581. (2) See 2 Cruise Dig. by Mr. Greenleaf, Vol. 4, Tit. 32, ch. 26, §56, §57. (3) Martin v. Martin, 1 Dev. 413. 11. In a case where the seller covenanted generally that he was seised in fee, without any condition, &c. or any other estate, *matter, cause, restraint, or thing whatsoever, whereby to alter, bar, change, charge, burthen, impeach, incumber, or determine the same, and had good right to convey the same; it appeared that the lady of the manor had actually demised a small part of the land sold for ninety-nine years, determinable on lives, and the lessees had entered and continued to enjoy the estates. It was held that the leases were made by mistake, and did not amount to a disseisin, and that the covenant did not extend to the leases. It was asked, what can a man be supposed to covenant against beyond the validity of the title? and most assuredly not against these surreptitious pocket leases. The action of covenant, it was added, only extended to the consequence of legal acts, and the reason is to be found in the case of Hayes v. Bickerstaff, that the law shall never judge that a man covenants against the wrongful acts of strangers (8). 12. It will be observed, that the leases were accompanied with actual possession by the lessees, who had expended money on the property. They were therefore within the covenants, and unless the covenants were held to extend to them, general covenants for title would be waste paper.-They are always intended to guard against a title adverse to the covenantor's, although it may not be a lawful title. Clearly the leases were a charge on the property at the time of the conveyance, and an ejectment at all events was necessary to dispossess the lessees. They therefore were an incumbrance within the covenant. It is not like the case of interruptions, subsequently to the conveyance, by persons not claiming lawfully. The case was argued upon much higher grounds, and this probably led the Court not to give due weight to the above simple view of it. 13. A covenant for right to convey extends not only to the title of the covenantor, but also to his capacity to grant the estate (1). (s) Jerritt v. Weare, 3 Price, 575. (1), See 2 Cruise Dig. by Mr. Greenleaf, Vol. 4, Tit. 32, ch. 26, §48, §49, §50; ante, 709, in note. A seisin in fact, though obtained tortiously, is sufficient to satisfy the covenant of scisin. Marston . Hobbs, 2 Mass. 439; Twambly . Henley, 4 Mass. 441; Bearce v. Jackson, 4 Mass. 408; Griffin e. Fairbrother, 1 Fairf. 95; Boothbay v. Hathaway, 20 Maine, 251; Willard v. Twitchell, 1 N. Hamp. 177. This position is, however, questioned, in Richardson v. Dorr. 5 Vermont, 21, and in Lockwood v. Sturdevant, 6 Conn. 385. It is held, in Vermont, that a covenant in a deed of land, that the grantor "is well seised in fee simple, and has good right to bargain and sell the premises," imports a covenant of title. TO WHOSE ACTS LIMITED COVENANTS FOR TITLE EXTEND. 203 Therefore, where, upon a conveyance by a man and his wife, the husband covenanted that they had good right to convey the lands, and the wife was under age, the covenant was adjudged to be broken (t) (1). 14. In respect to the persons against whose acts limited covenants will extend, it seems that a covenant for quiet enjoyment against A and any other person by his means, title or procurement, is broken by the entry of a person in whose name A purchased jointly with his own name (u) (2). *15. In this case Mr. Justice Doddridge put many cases. If a tenant in tail to whom the estate-tail was made, makes an estate and covenants as before, and the issue ousts the covenantee, the covenant is broken, because, being his purchase, the descent to his issue is by his means, although not by his title. But if the issue make an estate and covenant, and the issue of the issue enter, it is not broken, because they are not in by his means, but by descent. But if there be a lessee for life, remainder over, and the lessee make an estate and covenant, and die, and he in remainder enter, it is not broken, because he is in by the feoffor, not by the lessee. But if a man enfeoff upon condition to be enfeoffed for life, remainder over, there it shall be otherwise, because by his procurement and means; et sic de similibus. 16. So if A covenant for quiet enjoyment against all claiming by, from or under him, a claim of dower by his wife is within the covenant (3); but otherwise, if the mother of A claim her dower, because she does not claim by, from or under him (x). 17. But, it has been held that the word acts imports something done by the person against whose acts the covenant is made; and the word means has a similar import, something proceeding from () Nash o. Ashton, Sir Tho. Jones, 195. (u) Butler v. Swinnerton, Palm. 339; Cro. Jac. 657; See Williams v. Burrell, Catline. Hurlburt, 3 Vermont, 407; Pierce v. Jackson, 4 Vermont, 253. So of a covenant that he "is seised of an indefeasible estate in fee simple." Garfield v. Williams, 2 Vermont, 327. (1) See Lockwood v. Sturdevant, 6 Conn. 373; Beckwith v. Marryman, 2 Da na, 371. (2) 2 Cruise Dig. by Mr. Greenleaf, Vol. 4, Tit. 32, ch. 26, §78, §79. (3) An inchoate right of dower is an existing incumbrance on land, and not a mere possibility or contingency; Porter v. Noyes, 2 Greenl. 22; and it is a breach of the covenant against incumbrances; Shearer v. Ranger, 22 Pick. 417; Barnett e. Gaines, 8 Alabama, 373. the person covenanting; therefore, where a man holding under a lease which contained a power of re-entry in case a particular act should be done, made an under-lease, in which he covenanted for quiet enjoyment without any interruption by him, or by or through his acts or means, and this lessee, in alleged ignorance of the terms of the original lease, underlet the estate, and the under-lessee committed the act which gave to the original lessor a right of entry, which he accordingly exercised, the eviction was held not to be within the covenant, for it was not produced by anything proceeding from the covenator, but from the person in possession of the premises (y). 18. A covenant for quiet enjoyment against A, or any person claiming under him, extends to a person deriving title under an appointment made by A, by virtue of a power, in the creation of which he concurred, although the estate did not move from A, and the estate of the appointee is, according to the general rule, considered as limited to him by the deed creating the power. 19. This was settled in the case of Hurd v. Fletcher (z). Sir John Astley and his wife levied a fine of her estate to the use of Sir John for life, with power of leasing; remainders over, with a *joint power of revocation to Sir John and Lady Astley. They exercised this power, and, subject to the husband's life-estate, and power of leasing and other uses, which afterwards determined, limited the estate to Lord Tankerville in tail. Sir John afterwards granted a lease not warranted by the power, and covenanted for quiet enjoyment by the lessee, without any interruption by him, or any person or persons claiming, or to claim by, from or under him. Lord Tankerville's remainder in tail having fallen into possession, he evicted the lessee on account of the defective execution of the power, whereupon the lessee brought an action against Sir John's executors; and it was holden, that Sir John was a necessary party to the second declaration of uses; and, therefore, Lord Tankerville claimed under him, and the eviction was within the covenant. 20. It may be proper to mention, that the case of Butler v. Swinnerton, which (to borrow an expression of Lord Kenyon's) is the magna charta of the liberal construction of covenants for title, is also stated in Shep. Touch. 171, which goes on to state, "and so it is also, if A purchase land of B, to have and to hold to A for life, the remainder to C the son of A in tail, and after A doth make (y) Spencer v. Marriott, 1 Barn. & Cress. 457; 2 Dowl. & Ry. 665. () Dougl. 43; see Evans r. Vaughan, 4 Barn. & Cress. 261; 6 Dowl. & Ryl. 349. |