#### Den on the demise of Elizabeth Jacocks v. Moses Gilliam.

From Bertie.

A parish register of marriages, births and deaths, kept pursuant to the act of 1715, is good evidence to prove pedigree, and that the several persons, whose pedigree is thus proved, are within the savings of the statute of limitations.

Tenant in tail aliens, and in his conveyance, “ he, for himself, his heirs,

“ executors and administrators, doth covenant and agree, the premises “ to him the said A. B. his heirs and assigns, against the lawful claims sc or demands of any person or persons whatsoever, for ever hereafter " to warrant, secure and defend.” He then dies, and real assets descend to the issue in tail, of greater value than the lands aliened. A-discontinuance of the estate tail is not worked; for the covenant is not a covenant real annexed to the lands, whereby the alienor and his heirs are bound either on a voucher or judgment in a warranted charter to yield other lands of equal value in case of eviction of the tenant by better title. But it is a personal covenant to defend the possession, a covenant for quiet enjoyment, the breach of which is to be repaired, not in land, but in damages, and these must be primarily paid out of the personal fund.

The disuse of real actions has, from necessity, given to the warrantee a right to bring an action of covenant, in which he recovers damages according to the value of the land at the time the warranty was entered into. If he could not bring this action, he would be without remedy; ■ but the same remedy does not exist for rebutting the heir; for if the ancestor hath left real or personal assets, the purchaser may be recompensed.

This action of ejectment was tried in Bertie Superior Court at October term, 1816, and a verdict was found, under the charge of the Court, for the Plaintiff. A rule to show cause why a new trial should not be granted was obtained, and ordered to be sent to this Court for the opinion of the Judges upon the following case:

The land for which the action was brought, was granted to John Hardy in the year 1717 ; and by his will, date.d in 1719, duly executed to pass lands, was devised to his daughter Elizabeth Hardy in tail. The lessor of the plaintiff, to prove that she was the issue in tail, called one *48Hardy as a witness, who produced a book in manuscript, which, he said, was the parish register; and he turned to the following entries made therein, to wit:

“ Nathaniel Hill and Elizabeth Hardy married by the Reverend Mr, Newmans.” The date omitted.

“ Michael Hill, son of Nathaniel and Elizabeth Hill, born October 2ft, 1726.”

Hardy Hill,, son of Michael Hill and Elizabeth Hill, born February 21^ 1756.”

“ Elizabeth Hill, daughter of Hardy Hill and Jennett Hill, bom January 18, 1776.”

“ Hardy Hill died Sept. 5, 1777.”

“ Jonathan Jacoclcs and Elizabeth Hill married March 17,1791.”

The witness deposed, that the first and second entries were made in a hand-writing unknown to him •, the third he believed to be in the hand-writing of Edward Raynor, deceased, former clerk. The other entries were made by himself. He further deposed that Jonathan Jacocks died in the year 1810. The lessor of the Plaintiff relied on these entries to prove her pedigree, and that she was the-issue in tail; and, also, that the several tenants were within the savings of the statute of limitations. The Defendant contended that this book was not admissible in evidence, and, if admissible, that it was insufficient to prove the pedigree, or that the tenants were within the savings of the statute.

It appeared in evidence that Michael Hill, on the 5th. day of May, 1748, conveyed in fee the land in question to John Hill for a valuable consideration; and the Defendant deduced title regularly from John Hill to himself. It was admitted that real assets descended from Michael Hill to his issue in tail, Hardy Hill, father of the lessor of the Plaintiff, of greater value than the land in question. And it was contended that the warranty in the deed from Michael Hill to John Hill, and the real assets descended to the issue in tail of Michael Hill, worked a discontinuance of the estate tail. The deed contained a covenant of seisin, and the clause of warranty was in the following *49words: “ Furthermore, I, the said Michael Hill, for “ myself, my heirs, executors and administrators, do cove- “ nant and engage the above demised premises to him the “ said John Hill, his heirs and assigns, against the lawful ie claims or demands of any person or persons whatsoever “ forever hereafter to warrant, secure and defend.”

Gaston, for the lessor of the Plaintiff. — Under the feudal law an intimate connexion existed between the lord and his tenants. In war they were his soldiers', in peace his farmers: they fought his battles, supplied his table, upheld his splendor, did him homage, and owed to him allegiance. Their children were his wards; they could not marry, nor he received into the succession of the feud, without his assent. They were his subjects, and he their little sovereign. These duties were by reason of the lands which they held, and which were originally of his donation. He owed to them protection, and by his whole force ensured to them the enjoyment of their feuds ; and if they were evicted of them by reason of his inability to protect their enjoyment, he owed to them other feuds of equal value.

After the statute of quia eniptores, when alienations were permitted to be held of the chief lord of the fee, this relation did not exist between grantor and grantee; but the grantor might stipulate that this obligation of protection should rest on him and his heirs. Such a stipulation was an engagement to perform the same duties of a feudal chief as if the lands were holden of him. This was a warranty; it was a covenant real, annexed to the lands, whereby the warrantor and his heirs were bound, either on a voucher or judgment in a warrantia chart», to yield other lands of equal value in case of eviction of the tenant by better title.* Its ordinary form was “ Ego el Heredes mei, illi ei Heredibus et assignatis suis warranti aabimusJ’ † It induced a quasi feudal relation between the wai’rantor *50and bis heirs, on one side, and the grantee and his heirs an<* assi§>Ils’ on the other. It could only be enforced by warrantia cliarice, by voucher, (or aid prayer,) or by re-butter. This last was a mere consequence of its being enforceable by warrantia charlee, or by voucher, to prevent the circuity which would have arisen from the heir recovering the land, and then by warrantia chartoc or voucher, yielding other lands of the same value.

Wherever such a warranty existed, these were the only remedies. The personal writ of covenant broken, for damages, could not be brought.* Ancient feudal covenants, « warranties” have long since ceased, and are substituted by covenants to defend the possession, the remedy for breach of which, is in damages, and by the personal action of covenant.†

Is the covenant here the old obsolete warranty, or the modern ordinary covenant for quiet enjoyment ? In the first place, it is altogether improbable that the parties had any design to induce a feudal relation and a feudal duty, obsolete in England, and never known in our country, and that the grantee was willing to accept a warranty, the performance of which was to be enforced by a resort to remedies never practised here. In the next place, the words of this deed seem to show clearly that the parties intended to express by them the ordinary covenant for quiet enjoyment, for the breach of which the grantee was to he compensated in damages: The words are, “ I the said Michael Hill, for myself, my heirs, executors and administrators, do covenant and engage to warrant and defend.”. — The remedy is for damages, not for land ; and they must be primarily paid out of the personal fund. We must reject part of the deed as utterly insensible, to make it a warranty ', and this the Court will refu.se to do where it is possi*51ble to give a sensible interpretation to every part of tbe deed. *,†

At this Term, the Court gave judgment upon the points submitted in this case. They agreed upon the first point, that the parish register was properly admitted in evidence, and if the jury believed the evidence of Hardy, this regis*52ter, with '¡is testimony, proved tlie pedigree of the lessor of the piuint-.ÍF, and that she was the issue in tail; and also th at the sev eral ten ants were within the savings of the statute °f limitations. On the second point, the Court were divided in opinion; the Chief-J ustioe and Judge Hall being of opinion that the covenant in tue deed from Michael Hill to John Hill was a covenant for quiet enjoyment only; and Judge Daniel, that the covenant ivas a covenant real, annexed to the land, and by reason of the real assets of greater value than the land in question, descended to the issue in tail, had worked a discontinuance of the estate tail.

*

Gilbert’s Tenures, 134, Co. Lit. 365, a.

†

2 Bl. Com. Appendix.

*

Bacon, Covenant C. Brown 19. Keble 821, Hob. 4. Noy 131. 4 John. 11. Law of Cov'ts 13, 197.

†

4 Dall. 442. 4 John, 11. 2 Bl. Com. 304.

*

Williams v. Codrington, 1 Ves. 512, 514.

†

The Deed from Michael Hill to John Hill was in the following words:

> « NO RTH-C AROLIN A.

> t£ To all People to whom these presents shall come - Greeting :

> “ Know ye, that I Michael Hill, of the County of Bertie, in the Province aforesaid, for and in consideration of the sum of sixty pounds current money of Virginia, to me in hand paid by John Hill, of the province and County aforesaid, the receipt whereof I do hereby acknowledge, and myself therewith fully satisfied and contented thereof, and of every part and parcel thereof do exonerate, acquit and discharge the said John Hill, his heirs, executors and administrators, forever, by these presents, have given, granted, bargained, aliened, conveyed and confirmed, and by these presents do freely, fully, and absolutely give, grant, bargain, sell, alien, convey and confirm unto him the said John Hill, his heirs and assigns forever, one messuage or tract of land, situate, lying and being in the province and county aforesaid, containing by estimation, four hundred and twenty-four acres, lying on the east side of Rocquis Pocoson, and bounded, &c.: To have and to hold the said granted and bargained premises, with all appurtenances and privileges and commodities to the same belonging or in any wise appertaining, to him the said John Hill, his heirs and assigns forever, to his and their only proper use, benefit andbehoof forever: and the said ■Michael Hill, for me, my heirs, executor's and administrators do covenant, promise and grant to and with tire said John Hill, Iris heirs and assigns that before tire ensealing hereof, I am the true, sole and lawful owner of tire above bargained premises, and I am lawfully seised and possessed of tire same in mine own proper right, as a good, perfect and absolute estate of inheritance in fee simple, and have in myself a good right, full power and lawful authority to grant, bargain, sell, convey, and confirm tire said bargained premises in manner as above said; and that tire said John Hill, his heirs and assigns, shall and may from time to time, and at all times forever hereafter, by force and virtue of these presents, lawfully, peaceably and quietly have, hold, use, occupy, possess" and enjoy the said demised and bargained premises, with the appurtenances, free and clear and freely and clearly acquitted, exonerated and discharged, of and from all manner of former or other gifts, grants, bargains, sales, leases, mortgages, entails, jointures, dowries, judgments, executions, incumbrances and extents. Purthermore, I the said Michael Hill, for myself, my heirs, executors and *52administrator, do 'covenant and engage the above demised premises to him the said John Hill, his heirs and assigns, against tlie lawful claims or demands of any person or persons whatsoever, forever hereafter to warrant, secure and defend. In witness whereof, I have set my hand and seal this fifth day of Ma>, one thousand seven hundred and forty-eight.

> MICHAEL HILL. (Seal.)

> Signed, sealed and delivered in presence of

> Robert Hunter,

> Moses Hunter,

> Michael Mamng,

> At May Term, 1748, of Bertie Court, this deed was acknowledged in open Court, and registered.

Tatior, Chief-Justice,

delivered the opinion of a majority of the Court:

The two questions presented hy the record are, as to the admissibility of the book in evidence; and, whether the deed from Michael to John Hill operated a discontinuance of the estate tail.

1. The registry of births, marriages and burials, is directed to be kept by tlie register of the precinct, where there is no clerk, by the act of 1715 : and as the hook produced was proved to he tlie original one which had been thus kept, it affords legal evidence of the marriages and births, at least on a question of pedigree. A book kept by public authority, is necessarily evidence of the facts recorded in it, for the convenience of the public.* And the law *53will guard tlie, purity of such a memorial by making it indictable, to insert a false entry.* It is very possible to prove a marriage or pedigree by general reputation ; but where precision is required in dates, it is extremely d fficult to arrive at it, more especially in a country and climate, where, from various causes, the population undergoes frequent changes.

The registry book, confirmed as it was in this case, by proof of its authenticity, aflore!ed to the jury a simple and satisfactory method of tracing the pedigree for nearly a century ; and excluded all that doubt, confusion and uncertainty, which usually hang over such investigations, when depending upon the memory of witnesses. It would tend greatly to the public advantage, if the directions of the act of 1715, on this subject, were more generally observed.

2. The other question is not free from difficulty ,• but after mature reflection upon it, the decided preponderance of our judgment is, that the covenant contained in the deed of Michael Hill did not discontinue the estate of the. heir in tail. The. law has made a clear distinction between a covenant real and a covenant personal; and to a warranty alone, in the original and proper sense of the term, has it imparted the effect of intercepting the descent to the heir ; because he and not the.executor is bound to warrant and secure the land to the covenantee and his heirs. The use and adoption of the form in which the ancient warranty is expressed, would indicate the intention of. the parties to avail themselves of such remedies as appertain to the warranty only and the change of that form will justify the reasonable inference that they designed to abide by the security which is afforded by a covenant. A general warranty extends to all mankind: the usual covenant is only for the acts of the grantor and his ancestors: but a covenant will bin'd the persona) assets, which makes such security better than a warranty.† The various covenants contained in this deed further shew that the parties meant to *54re]y upon the modern covenants ; for ail are contained in except that for further assurance, which there were no means of the tenant in tail giving. It is then right that the purchaser should have the full benefit of the remedies which the deed furnishes ; but we can find no authority for the Court to superadd to a covenant which is clearly personal, the remedy by rebutter, which exclusively belongs to that real covenant which is called a warranty. The words which bind the executors and administrators of Michael Ilill, must bo rejected, before this can be done, or the clause he construed as a warranty. That would be altering the contract of the parties, and, as it appears to us, frustrating their intention.

The words in this deed are similar to those in Williamson v. Codrington,* where it was held by Lord Hardwicke that if a person obliged himself, his heirs, executors and administrators to warrant and forever defend the lands, negroes cattle, and stock conveyed, it amounted to a covenant, and not to a warranty.†

The disuse of real actions has from necessity, given the warrantee a right to bring an action of covenant, in which he recovers damages according to the value of the land at the time the warranty was entered into. If he could not bring this action, he would be without any remedy -, but the same necessity does not exist for rebutting the heir ; because if the ancestor left real or personal assets, the purchaser may be recompensed. Our opinion consequently is, that this warranty did not descend upon the heir 5 and that John Hill had nothing more than a base fee simple, determinable on the death of Michael Hill, by the entry of his issue in tail 5 and that the Plaintiff is entitled to judgment.

Daniel, Judge.‡ It appears from the case, that the lessor of the Plaintiff is the grand-daughter and heir at *55law of Micliael Hill, who was seized in fee-tail of the land in question. Michael Hill, for a valuable consideration, conveyed the land by deed of bargain and sale to John Hill in fee simple. It is admitted that real assets descended from Michael Hill to his issue in tail of greater value than the land in dispute.

If tenant in tail release to his disseisor, and bind himself and his heirs to warranty, and die, and this warranty descend to his issue, it is a discontinuance by reason of the warranty.* Lord Coke, in his Commentary on this section of Littleton, says, “ The reason why the addition of the warranty in this case maketh a discontinuance, is that which has been said, to wit: If the issue in tail should enter, the warranty (which is so much favored in law) would be destroyedand therefore to the end if assets in fee simple do descend, he to whom the release is made may plead the same, and bar the demandant; by which means all rights and advantages are saved.† It is by virtue of the warranty, with assets descended,, that a discontinuance is effected, whether the conveyance be by bargain and sale, lease and release, or release to a disseisor.

It is said, if the clause in the deed from Michael Hill to John Hill had been in the words following, to wit: “ I, the said Michael Hill, for myself and my heirs, do warrant, Sec.” they would certainly have made a warranty; but that the clause as it. stands is not a warranty ; that there is only a covenant to warrant, which has not the operation in law to work a discontinuance. I know of no distinction, in a deed which conveys the fee, between a warranty and a covenant to warrant and defend, if the heirs he bound. What is a warranty ? Lord Coke says “ a warranty is a covenant real annexed to lands or tenements, whereby a man and his heirs are bound to warrant the same; and either upon voucher, or by judgment in a writ of warrantia charlee, to yield other lands and tenements to the value of those evicted by a former title, or *56else may be used by way of rebutter.* So “ I and my h^rs s,ia^ ’warrant,” &c. doth create a warranty.† Little-ton says “ that tliis word and verb warranlizo maketh the warranty, and is the cause of warranty, and no other word in our law.” But he has not confined us down to any particular part of this verb; he has not pointed out the mood or tense, which shall be used in the warranty clause of a deed. In the present case the words “ covenant and engage to warrant ” &c. are as clear a declaration of the intention of the parties, as the words “ I and my heirs shall warrant,” which we have seen is a warranty good in law. Lord Hardwicke labored to make the case of Williamson v. Codrington ‡ a personal covenant; but he does not intimate an opinion that it might not have well been construed a warranty. In the case of Minge v. Gilmore,§ the clause of the deed from Minge to Gilmore is very much like the one now under consideration. In this case it was held to be a warranty, which barred the tenant in tail. This was so determined in the State Courts, and also in the Federal Court. I think a new trial should be granted.

*

1 Salk, 282.

*

Sid. 71-2.

†

2. Bl. Com. 304.

*

1 Ves. 512.

†

3 Cruise 65.

‡

His honor Judge Henderson, having been of counsel in this case before his appointment to a seat in tills Court, the honorable John Joseph Daniel, Esquire, was commissioned by the Governor to sit in this and in several other cases in which Judge Henderson had been of counsel.-

*

Littleton, sec. 601.

†

Co. Lit. 328, b.

*

Co. Lit. 365, a.

†

Ibid, 384, a. Wood’s Conveyancer, 5f3.

‡

1 Ves. 512.

§

1 Law Repos. 15.