#### WILLIAM WILDER v. JOHN IRELAND.

Where one (devised, 'in 1828, to a trustee, to the use and benefit of a woman, for her life, remainder to the use of all her children, it was Held that by force -of'the statute of uses, the legal estate for life, was executed in the woman, and that it made no difference that chattel property was conveyed to the trustee by the same wilL

Held juriher.; .that the legal estate in the remainder, by force of the same statute, passed to the children she had at the time of the devise, subject to the participation of such as she might thereafter have.

Where a vendee brought an action against an intruder, and failed to recover, but not on account of a defect of the vendor’s title, (which was sufficient to sustain the action) it was Held, in an action on his covenant for quiet enjoyment, that this-did not amount to a.breach of the covenant.

A covenant of quiet enjoyment in a d.eed, conveying afee, is not broken if the covenantor had title to a life-estate, though his title failed as to the remainder.

Held further, that withholding of his title-deed on the •occasion of the trial, by the covenantor, (it not having been registered) was no breach of the covenant.

1Vote the alteration -of the phraseology of the statute of uses in Rev. Statutes, chap. 43, sec. 4, and in Rev. Oode, chap. 43, see. 6, and quere as to its effect

Action of covenant, tried before Saunders, Judge, at the Spring Term, 1860, of Franklin Superior Court.

*86The plaintiff declared for a breach of the following covenant, contained in a deed, from the defendant to him, dated 16th day of February, 1858, conveying to the plaintiff and his heirs the land in question : “ And for the better security, I do agree to warrant and defend the same, both in law and equity.”

The plaintiff was put into possession of the premises, and after he had remained thereon for about four months, one Perry entered and ousted plaintiff and retained the possession. The plaintiff brought an action of ejectment against Perry to regain possession, of which he gave notice to the defendant. The defendant, in reply, said he had a deed for the land, in question, from Benjamin Cook and Elizabeth his wife, but no such deed was produced on the trial of this action of ejectment, and none such had, at that time, been registered in Franklin county, and from a supposed defect of the plaintiff’s title, a verdict and judgment were rendered for the said Perry. The record of this suit is filed as part of the case.

The defendant, at the time of his conveyance, did have a deed of bargain and sale from Benjamin Cook and Elizabeth Cook his wife, dated 16th February, 1858, purporting to convey the land, in question, to him, the defendant, for the consideration of $555, which it was admitted was paid to said Cook. After the commencement of the present action, to wit, in 1860, Cook and his wife acknowledged the deed to defendant, in due form of law, before a Judge of the Superior Court, who certified it with privy examination of the wife, and ordered it to be registered, which was immediately done.

Cook and his wife claimed title to the land in question, under the will of John Perry, which was executed on the 27th of November, 1828, and was proved at March County Court of Franklin, 1829. The following is the clause of the will bearing on the point: “I will and bequeath unto- my worthy friend, Matthew Strickland, his heirs and assigns, the following property, on trust, for the use and benefit of my daughter, Elizabeth, the tract of land whereon she now lives, one *87negro woman, named Clarissa, her three children, to wit, Toney, Adam, Berget and their future increase; after the death of my daughter, Elizabeth, it is my wish and desire, that the above property be equally divided between all my daughter’s children, except John P. Cook.”

The foregoing is the substance of the facts agreed on by the counsel on both sides and submitted to his Honor, with an agreement, that if he should be of opinion with the plaintiff, that a judgment should be rendered for $555, with interest and the costs of the action of ejectment.

There was a further agreement for the recovery of a lesser sum, as damages, according as his Honor might decide as to certain other points submitted in the case agreed, but the statement, as to this matter, is made immaterial by the view taken of the case in this Court.

His Honor, in the Court below, being of opinion with defendant, a j udgment was entered accordingly, from which the plaintiff appealed.

J. J. JDmis and B. F. Moore, for the plaintiff.

Miller, for the defendant.

Pearson, C. J.

Ve eoncnr in the conclusion of his Hon- or, that upon the facts agreed, the plaintiff was not entitled to recover.

To maintain the action, it was necessary for the plaintiff to show that the deed of the defendant contained a covenant of quiet enjoyment, and that he was evicted by reason of a title paramount.

Let it be assumed that the deed contains a general warrantj or covenant of quiet enjoyment.

Let it be also assumed that the failure of the plaintiff to recover in the action of ejectment brought against Perry, amounted to an eviction; for this, see Alexander v. Torrence, 6 Jones, 260; Grist v. Hodges, 3 Dev. 200.

The case is thus narrowed to this: was the eviction, by reason of a title paramount ? in other words, was there a de*88feet in the title of the defendant, in consequence of which, the plaintiff was unable to regain possession of the land ? It is settled, that where a vendee is sued in ejectment, and a recovery is effected, in his action against the vendor on the covenant of quiet enjoyment, the judgment in ejectment is no evidence of a defect in the title of the vendor, and it is necessary for the plaintiff to establish that fact by distinct proof; Martin v. Cowles, 2 Dev. and Bat. 102. Such being the law, where a recovery in ejectment has been effected against the vendee, and he has been put out of possession, as a matter of course, it is likewise so where the vendee fails to maintain an action of ejectment, and relies on such failure, to establish his allegation of an eviction. Indeed, in Grist v. Hodges sup., it is assumed as a matter beyond question, where the vendee had failed in maintaining an action of ejectment, “ the event ■of that suit, proves nothing in the action on the covenant.”

Our case, therefore, turns upon the construction of the will of John Perry: did the devise to his daughter, Elizabeth, vest in her a mere trust estate, or did the legal title pass to her by force of the statute of rises, 27 Hen. 8 ? We think it is clear, that the limitation of the use came within the operation of the statute. By force of the devise, Matthew Strickland was seized in fee simple, to the use of the said Elizabeth for life, and then in remainder to the use of all of her children (except John P. Cook,) in fee. Where one person is seized to the use of another, the statnte carries the legal estate to the person having the use. But three classes of casses are made exceptions to its operation, i. e.: Where a use is limited on a use. 2. Where the trustee is not seized, but only possessed of a chattel interest; and 3rd. Where the purposes of the trust-make it necessary for the legal estate, and the use to remain separate; as in the case of land conveyed in trust for the sepa/rate use and mcdntenazice of a married woman. This is familiar learning; see Black. Com.

By the will, under consideration, the testator gives to Strickland and his heirs “ the following property, in trust, for the use and benefit of my daughter, Elizabeth, the tract of land where*89on she now lives, and a negro woman and her children, and, after the death of my daughter, Elizabeth, the above property to be equally divided between all her children, except John ,P. Cook.” This is the limitation of an ordinary use. There is no trust for the “separate use” and maintenance of a married woman. Indeed, it does not appear by the will, that the testator’s daughter, Elizabeth, was at that time under coverture, and we should have been at a loss to conceive of a reason why it had been supposed that the case did not fall within the operation of the statute, except for the suggestions made on the argument.

It was suggested that the statute did not operate, because a negro woman and her children were embraced in the same clause, in respect to which property, the trustee was not seized, but only possessed, and as the statute did not apply to the slaves, it was argued that it could not apply to the land. We are unable to perceive the force of this reasoning. It is certain that the trustee was seized of the land for the use of the daughter: So, the case is within the words of the statute, and it does not fall under either of the excepted cases, and no authority was cited to sustain the idea of a fourth exception, that is, when chattel property is conveyed to the trustee by the same deed or will! In fact, it is certain that the books do not recognize this ufou/rth exception.”

It was also suggested that the statute could not execute the life-estate in the daughter, because it could not execute the remainder in the children, inasmuch as the intention was to give the use in the remainder to all of theohildrren — those that might afterwards he born, as well as those then in esse. If it were admitted that the use in the remainder was not executed, it would by no means follow, that the use in the life-estate was not executed. But, in truth, the use in the remainder was executed. It is the familiar instance of a springing, or shifting use, which is fed by a scintilla jv/ris left in the trustee, according to the doctrine in GhudleigNs case, Coke Reports. The effect of the statute was to vest the legal estate in Mrs. Cook, for life, and to vest the legal estate in remainder in her *90children, then living, except John, leaving a scintilla juris' in the trustee in the event of her having any child or children born afterwards.

This disposes of the case ; for as Mrs. Cook had the legal estate, for life, which passed to the plaintiff, it follows there is no defect in the title, by reason of which he could not recover the possession. So, the covenant for quiet enjoyment has not been broken, and the eviction was not by reason of a title paramount, but was simply tortious.

It is true, there is a defect of title in respect to the remainder j but that does not amount to a breach of the covenant of quiet enjoyment, which is the only covenant which the plaintiff had the precaution to take for his-protection. It is his misfortune that he did hot have the deed drawn by a lawyer, who would also have inserted a “ covenant of seizin,”' i. e., that the defendant had a title in fee simple, and could convey in fee. Such a covenant is broken whenever there is a defect in the title, and its office is to provide for a case like ours, where the defect is in respect to the remainder or reversion.

It was stated at the bar, and in fact, it is manifest from the case agreed, that the position that Mrs. Cook had the legal estate, for life, was not taken in the Court below. Howevei’,. that may be, the point is presented by :i the facts agreed,” and is decisive-of the case ; it is, consequently, unnecessary to notice the several phases which are stated, bearing on the question as to- the amount of damages.

The position, that supposing the title to be good for the life of Mrs. Cook, still the plaintiff was entitled to recover the costs-of the action of ejectment, is untenable-; for certainly, the fact, that the vendor did not furnish, the deed from Cbok and wife at the trial, and that the deed had not been registered,. was.no breach of the covenant of quiet, enjoyment, which* must depend on a defect in the title and right of possession.

Per Curiam,

Judgment affirmed.*

*

Note. — After the opinion was filed, our attention was called to the fact,, that in the Rev. Stat. chag. 43, see. 4, and. the Rev.. Code ch., 43, sec.. 6,. the-*91general words used in 27 Hen. 8 chap. 10, i. e, “ When one person or per-, sons stand, or be seized, or at any time hereafter shall happen to be seized of land, &c., to the use of any other person, persons or body politic, by reason of any bargain, sale, feofment, &c., or otherwise, by any manner or means whatosever it be, the persons, &c., having the use, shall have the legal, estate, &c.” are omitted, and the provision is simply “ By deed of bargain and sale, lease and release and covenant to stand seized, the possession shall, be-transferred to the bargainee, releasee, covenantee, &c.” This may. hav.e a very important effect on. the title to land in many cases, but our case is not affected by it, because the will of John Perry was executed, in, 1828, and was proved in 1829.

After the statute of wills, 32 Hen. 8, a question, was.made, whether 27 Hen. 8, applied where one was seized to the use of another by force of a devise. The question, however, has long been at rest.. Mr. Blackstone, in his learned commentaries, classifies the exceptions to the operation of the statute under three heads, and does not allude to the fact, tihat the question referred to, had ever been started, but passes, it over as one of “ the refinements and niceties suggested by the ingenuity of the times,” 2 Black. 336. See also Broughton v. Langley, Salk 679, where Lord Holt treats the question as settled. The curious reader will find the subject treated of in Powell on Devises, 211-13-14.

It is conceded, on all hands, that the statute of Uses, 27 Hen. 8, chap. 10,. was in force and in use, in this State, up to the passage of the Revised Statutes (1836). Indeed, all of the conveyances of land; adopted and used in this-. State, are based on, and take effect by, the operation of that statute.