#### PAUL HAGLER vs. DAVID SIMPSON.

In a deed of bargain and sale, the bargainor covenanted that “he was signed of a good, &c. estate,” &c.: — Held that the Court could not by construction, substitute seised for signed, so as to make the sentence intelligible and op dative as a covenant of seisin.

The bargainee having been sued in ejectment, and a recovery had against him, voluntarily left the possession, and it not appearing that possession had been taken under the recoveryHeld, that there was no eviction to sustain an action on a covenant for quiet enjoyment.

This was an action of COVENANT, brought upon the deed of bargain and sale, executed by the defendant in 1834, conveying to the plaintiff a tract of land. Pleas — covenants performed, and not broken. The deed contains the following : — “ And the said David Simpson now, at the time of selling and delivering these presents, is signed of a good) pure, perfect rite, free and clear from all incumbrance whatever, to the said Paul Hagler or assigns forever, and that the said David Simpson doth oblige himself at all times, his heirs, Executors &c., power to warrant and defend the said land and premises from any lawful claim of any person or persons whatever, but to the said Paul Hagler his heirs,” &c.

*385Upon the trial, before bis Honor Judge Manly, at Union, on the last Spring Circuit, the plaintiff offered in evidence a grant from the State to one Samuel Smith, dated 30th Sept. 1829, embracing the greater part of the tract of land conveyed by the said deed of the defendant. The plaintiff further showed a deed from said Smith to one Brandon, and the record of a suit in ejectment against the plaintiff on the demise of said Brandon, and a verdict and judgment for the plaintiff’s lessor therein, at September Term, 1840. It appeared that Hagler, soon after this recovery, voluntarily abandoned the premises — no writ of possession eyer having been issued.

His Honor, the presiding Judge, was of opinion that the words of the deed did not express a covenant of seisin, and could not be so construed ; and that there was no eviction to warrant a recovery upon the covenant for quiet enjoyment. Instructions to this effect, having been given to the jury, the defendant had a verdict, and from the judgment rendered thereon, the plaintiff appealed.

Wilson, for the plaintiff.

Osborne and Hutchinson, for the defendant.

Peaeson, J.

The defendant, in consideration of one hundred and seventy-five dollars, executed a deed of bargain and sale to the plaintiff for a certain tract of land in fee simple. The deed has these words : — “ And the said David Simpson now, at “ the lime of selling and delivering of these presents is signed of “ a good, pure perfect rite free and clear from all incumbrance “whatever;” and then follows a covenant of quiet enjoyment (or warranty,) expressed in intelligible terms. Under this deed, the plaintiff entered. Afterwards, one Brandon recovered of the plaintiff, in ejectment, upon a paramount title; and thereupon the plaintiff abandoned the possession and brought this action. It is not stated that Brandon had entered into possession before the commencement of this action.

The question is, does the deed contain a covenant of seisin? This depends upon whether “signed ” can be made to be or to mean “ seised.”

*386We have a strong impression that “ signed ” was written instead of £C seised,” jnst as “selling” was written instead of “ sealing,” by reason of the ignorance of the draftsman who was copying from some old deed ; and possibly the plaintiff can have relief in another forum, which “ acts upon the person and applies itself to the conscience,” and does not permit advantage to be taken of mistake or accident. But this Court has no power to change one word of known and definite meaning into another. There are no statutes of “ jeofail and amendments ” in regard to deeds, and we must take them as they were made by the parties.

Wrong spelling does not vitiate, when there is idem sonans, and the letters used do not make some other word of known signification. But the difficulty here cannot be removed on the idea of bad spelling ; for there is not the idem sonans, and the letters (which are written in a plain hand,) make the word “signed.”

It is hue, when a deed cannot take effect in the mode it purports to have been intended to operate, but can take effect as air-other mode of conveyance, the Court will so construe it, wl res majis valeat; but this rule does not bear on the present case. So the conjunction “ or ” will be read “ and,” and vice versa, when the construction of the sentence and the obvious meaning shows thát the intention was to connect and not to put apart the words or sentences.

In the case before us, no aid can be derived from the construction of the sentence, and there is no legitimate mode of ascertaining the meaning except from the words used — so it is the dry and naked question, has this Court power to change the word “ signed ” into “seised,” when it is called on to construe a deed?

There is no authority, and we can see no ground upon which such a power can be maintained.

The plaintiff further insisted that there was a breach of the covenant of quiet enjoyment. We think there was no evidence of an eviction. It is not necessary that the party should be turned out by a writ of possession : it is sufficient if the lessor of the plaintiff, after the judgment, takes possession. There is in this case no evidence that the lessor of the plaintiff took possession after his recovery ; and although the plaintiff in this action left the premises soon after the recovery against him in the ejectment, *387 non constat, that he would have been disturbed in his possession, had he remained upon the premises.

Pee CtjRIAm. Judgment affirmed.