Herrin v. McEntyre.
From Burke.
A covenant of general warranty is subject to the same construction that a covenant for quiet enjoyment is; and when the habendum in a deed is to a man and his heirs forever, he may recover for an eviction, on such general warranty, though the clause of warranty should not mention to whose benefit it enures; for it shall be intended for the benefit of the person to whom the conveyance was made.
A. purchases a tract of land, and sells it to B : B. is evicted by a bet-' ter title. As soon as this fact is satisfactorily ascertained by A, he may immediately make compensation to B, and sue his own vendor, .without any recovery at law by B. against him.
This was an action brought upon a general covenant of warranty in a deed ; and the Plaintiff assigned as a breach, an eviction by paramount legal title.
The Plaintiff, on the trial below, produced tlie deed of the Defendant, dated 30th of June 1808, conveying to the Plaintiff a tract of land, “ to have and to hold to the said Abraham Herrin, his heirs and assigns forever; and the said Thomas L. M’Entyre doth, for himself, his heirs, executors, administrators, and assigns, warrant and forever defend the said land and premises from all manner of persons whatever, laying claim thereto.'" Plaintiff then shewed that he had conveyed a part of the land to one Nance, and the residue to one Thompson, and that a recovery in ejectment had been obtained against them by one Carson and another, and they had been turned out of possession by a title superior to that made by the Defendant to the Plaintiff. Plaintiff then proved that he had made compensation to Nance & Thompson., for t)ie injury they had sustained. The Defendant contended that the deed contained no covenant for quiet en joyment to the Plaintiff 5 and that if it did, Plaintiff could not recover thereon, until Nance and Thompson liad recovered of him on his warranty to them. The Court informed the Jury, that' the deed did contain a *411covenant for quiet enjoyment by the Defendant to the Plaintiff, and also that the pleadings in the cause did not raise the other legal objection made by the Defendant; but if the pleadings had been proper to raise the question, it would not have availed the Defendant, for the Plaintiff had a right to commence his action as soon as those claiming under him had been evicted by title paramount. Yerdict for Plaintiff, new trial refused, judgment, and appeal.
Wilson,
to shew that the warranty, though it did not mention to whom it was made, enured to the feoffee, cited €o. Lit. S83 5. 384 a — 7 Bac. 228 — Dyer 42.
Tateok, Chief-Justice,
delivered the opinion of the Court:
This action is founded upon a covenant of general warranty, which is subject to the same construction with a covenant for quiet enjoyment $ and it is essential, in this action, that the Plaintiff assign as a breach, an ouster or eviction, by a paramount legal title. It is stated in the declaration, that Nance and Thompson, tenants in possession, under the Plaintiff, were legally ejected, j and the case more particularly specifies, that the Plaintiff had conveyed the land to those persons, who defended the ejectment on the strength of his title. Two objections are made to the Plaintiff’s recovery $ the first, that the deed from the Defendant contained no covenant for warranty or quiet enjoyment to the Plaintiff: secondly, that if it did, the Plaintiff could not recover until Nance and Thompson had recovered from him. The premises of the deed declare, that the Defendant has sold to the Plaintiff a fee simple estate ¿ and the habendum limits the said estate to the Plaintiff, his heirs, executors, administrators and assigns for ever; but the clause of warranty does not express to whom it shall enure. The ordinary rules of construction woqld seem sufficient to *412remove this difficulty; as it is the nature of a warranty ^0 run with the estate; but Coke states the case, “ though in the clause of the warranty it be not mentioned to w|lomy^c. yej- s])ajj be intended to the feoffee.”—(Co. Litt. 384.) The objection, therefore, cannot prevail. There is nothing conclusive in the recovery of the land by ejectment, as against the Defendant. He was still at liberty to controvert the title of Carson and the other Plaintiff in the ejectment, and shew, if'he could, that their title was not superior to the one he sold. It cannot make any difference to him, therefore, whether Her-ían chuses to stand a suit or not. .The only consequence would be, an increase of costs, which he must ultimately pay. The Plaintiff had a clear right to pay the money, as soon as the eviction by a better title was ascertained to his satisfaction, and to bring this suit immediately afterwards. A new trial is refused on both grounds.