June, 1830.

#### David Coble v. Wm. Wellborn, ex'r of Wm. Bell,

From Guilford.

An actual eviction is indispensable to sustain an action upon a covenant of quiet enjoyment. Therefore, where there had been a reco very in ejectment, upon title paramount, and before the issuing of a writ of possession, or any actual disturbance of his possession; the Defendant in the ejectment purchased from the Plaintiff— held that there was no breach of the covenant for quiet enjoyment.

But a recovery m trespass quare clausmn freg-it is tantamount to an eviction — as a judgment in that action implies that the Plaintiff is in possession, and the entry of the Defendant a trespass, which the law compels no man to commit.

The case of Williams v. Sham ("N. 0. Term Sep. 197) approved by Ritein, Judge.

It seems that a recital in a deed purporting to convey a fee, from which it appears that the vendor has but an estate for life — but which was intended only to describe the land conveyed, does not qualify a covenant of quiet enjoyment, so as to confine it to the life of the vendor.

This was an action of Covenant for* the breach of a covenant of quiet enjoyment, contained in a deed executed by the Defendant’s testator to the Plaintiff, the material parts of which are as follows: " Have granted, J‘ bargained, &c. unto D. C. his heirs, &c. all that tract “ of land, situate, &o. the same being a tract purchased “ by John M* Gee from Hugh Smith, and by the said “ M’Gee willed to his daughter Jane, and by her bus-<f band John Wellborn, conveyed to me the said W. B. — - (t and I the said W. B. do hereby covenant, promise and “ agree to, &c. with the said D. C. bis heirs and assigns, “ to warrant and forever defend the said granted pre-t( mises, against me, my heirs, and against the lawful “ claims of any other person, &c.”

After the death of John Wellborn, and before the com-¡mepcement of this action, Jane Wellborn, his widow, the person mentioned in the deed as Jane, the daughter of John M’Gee, brought an ejectment against the Plaintiff, *389and obtained a verdict and judgment for the premises conveyed by the deed above recited. — After this recovery, the Plaintiff purchased tiie land from Jane Wellborn, who never sued out a writ of possession — neither was the Plaintiff ever evicted, unless the .said recovery was an eviction.

For the Defendant, it was objected, that these facts did not, in law, amount to an eviction.

His Honor Judge Norwood reserved the point, and a verdict was taken for the Plaintiff. Upon which, judgment for the Plaintiff was afterwards entered, and the Defendant appealed.

Nash & Badger, for the Defendant, insisted,

1st.- That the covenant did not extend to any thing but the life-estate conveyed by John Wellborn to the Defendant’s testator, and by him to the Plaintiff.

2d. That no breach of the covenant could be. inMfred from the facts stated in the case, as there was no eviction.

Gaston, for the Plaintiff,

cited Williams v. Shaw, (N. C. Term Hep. 197.)

Ruffin, Judge.

The want of an eviction of the Plaintiff is decisive of the case against him, and makes it useless to consider the other points debated. 1 strongly incline, indeed, to the opinion, that there is a general warranty in the deed. For the history of the deeds and devises does not relate to the title, but to the identity of-the land, as it appears to me from the words, “ the same, being a tract purchased,” &c. They are words'' of more perfect description.

But the Plaintiff cannot recover without showing au eviction. Our warranty is construed to be a covenant for quiet possession, and not of seisin. Nothing but a disturbance of the possession is a bread! of it. It is not a covenant, that another has no right, but that if he hath, he will not use it to disturb the bargainee’s possession.. *390qpije eviction may be with, or without legal process j but there must be an eviction in one wav or the other, and upon paramount title. The mere judgment in eject-menj 0(1¡y establishes the title, which existed before. For any thing we know, the warrantor may, after such recovery, satisfy the true owner, and so the vendee may never be disturbed in his possession. This point was directly ruled in Kerr v. Shaw, (13 Johns. 236.) and the difference between a covenant for quiet possession, and one for title or against encumbrances, is strongly exemplified by that and another case in the same book. (Hall v. Dean, id. 105.)

The case of Williams v. Shaw, (N. C. T. R. 197,) has been cited for the Plaintiff. But- that differs from this. There was a recovery of real damages in an action of trespass quare clausum fregil; which is evidence of a disturbance in itself; since that action implies, that the Plaiiitiff is in possession, and the recovery implies, that the Defendant’s entry was a trespass on the possession, and that he cannot re-enter without committing another trespass. No man is compelled to be a trespasser, and therefore when it has been judicially ascertained that another is in by better title, it follows that he is kept out; •which is equal to being turned out. The whole terms on the nature of this covenant, technically considered.

Per Curiam. — Let the judgment of the Court below be reversed, and judgment of nonsuit entered.