Shattuck v. Lamb.

David B. Prosser, for appellant. The covenants in the deed from Lamb to plaintiff were general, and extended to any and every lawful disturbance of plaintiff in the possession of said premises or any part thereof. Rickert v. Snyder, 9 Wend. 416; Fowler v. Poling, 6 Barb. 165; Webb v. Alexander, 7 Wend. 281. Possession by Campbell at the time of the conveyance by Lamb to Shattuck under a paramount title was of itself an eviction by paramount title, and constituted a breach of the covenant for quiet enjoyment and warranty in the deed from Lamb to plaintiff. Grist v. Hodges, 3 Dev. (N. C.) 200; Rawle on Cov. for Title, 152-172, and notes (4th ed.); Duval v. Craig, 2 Wheat. 62; Noonan v. Lee, 2 Black (U. S.), 507; Curtis v. Deering, 12 Me. 501; Blanchard v. Blanchard, 48 id. 174; Phelps v. Sawyer, 1 Aik. (Vt.) 158; Park v. Bates, 12 Vt. 381; University of Vt. v. Joslyn, 21 id. 52; Clark v. Conroe, 38 id. 475; Russ v. Steele, 40 id. 315; Loomis v. Bedell, 11 N. H. 74; Miller v. Halsey, 2 Green (N. J.), 59; Gardner v. Keteltas, 3 Hill, 330; Small v. Reeves, 14 Ind. 164; Wilder v. Ireland, 8 Jones' L. R. (N. C.) 87; Randolph v. Meeks, Mart. & Y. 58; Cadwell v. Kirkpatrick, 6 Ala. 60; Banks v. Whitehead, 7 id. 83; Dennis v. Heath, 11 Smed. & M. (Miss.) 206; Witty v. Hightower, 12 id. 478; Cummins v. Kennedy, 3 Littell (Ky.), 123; Barnett v. Montgomery, 6 Monr. (Ky.) 328; Playter v. Cunningham, 21 Cal. 229; Moore v. Vail, 17 Ill. 185; Murphy v. Price, 48 Mo. 250; Rea v. Minkler, 5 Lans. 196; Platt on Cov. 327; Ludwell v. Newman, 6 T. R. 458; Waldron v. McCarty, 3 Johns. 471; Kortz v. Carpenter, 5 id. 120; Kerr v. Shaw, 13 id. 236; St. John v. Palmer, 5 Hill, 599; Winslow v. McCall, 32 Barb. 241; Hunt v. Amidon, 4 Hill, 345; Cowdrey v. Coit, 44 N. Y. 382; Duval v. Craig, 2 Wheat. 45.

Charles G. Judd, for respondent. The covenant for quiet enjoyment could only be broken by an actual eviction or actual ouster after possession had been taken by the covenantee. Rindskopf v. F. L. and T. Co., 58 Barb. 36, 49; Kerr v. Shaw, 13 Johns. 236; Waldron v. McCarty, 3 id. 471; Kortz v. Carpenter, 5 id. 120 : Webb v. Alexander, 7 Wend. 281, 284; St. John v. Palmer, 5 Hil, 599; Beddoe v. Wadsworth, 21 Wend. 125; Kelly v. D. Ch. Schenectady, 2 Hill, 111; Fowler v. Poling, 6 Barb. 165, 170, 172; Blydenburgh v. Cotheal, 1 Duer, 176, 195; Winslow v. McCall, 32 Barb. 241; Frisbee v. Hoffnagle, 11 Johns. 50; Vandekarr v. VanVOL. XXII. — 83

Shattuck v. Lamb.

dekarr, id. 122; Jackson v. Rice, 3 Wend. 182; Rickert v. Snyder, 9 id. 422.

EARL, C. The action was to recover damages for an alleged breach of the usual covenant of warranty for quiet enjoyment contained in a deed, made by defendant to plaintiff, of land situate in Yates county. At the time of the execution of the deed, a portion of the land was in the actual possession of one Campbell, under paramount title, and the plaintiff was not able to obtain possession of such part. He once entered upon the land and Campbell sued him for trespass and recovered on the strength of his title. During the pendency of that suit, plaintiff sued Campbell in ejectment and was defeated by his superior title. Plaintiff gave defendant notice of both actions, and requested his assistance in prosecuting the one and defending the other. A verdict having been taken for plaintiff at the Circuit, he was defeated and judgment given to the defendant at the General Term, upon the sole ground that plaintiff, never having been in possession of the land, had not been evicted therefrom, and hence that there was no breach of the covenant.

The sole question, therefore, for our consideration is, whether the covenant for quiet enjoyment in a deed of land is broken, so as to enable the covenantee to maintain an action thereon, where the land at the time of the execution of the deed was in the possession of a third person under paramount title, and thus the covenantee was unable to obtain possession. This question is not free from doubt under the decisions of the courts of this State. The language of the covenant is broad enough to cover a case like this, as well as one where the covenantee has obtained possession and has then been evicted by one having a superior title. There is just as much reason for applying it to one case as the other, and both cases seem to be equally within the presumed intention of the parties. The rule that there must be an eviction before there can be a recovery upon such a covenant has its foundation in the reason that the covenantee who has obtained possession should not be permitted to recover for breach of covenant for a mere failure or defect of title, so long as he is left in possession, as he may never be disturbed, and thus may never suffer damage; and the rule had its origin and was first announced at a time when conveyances of land were made by livery of seizin, and possession always accompanied the transfer of title. It is not applicable to a case where

Shattuck v. Lamb.

the covenantee has not been able to obtain possession for the reason that another was in possession under paramount title. There must doubtless be in every case, what is equivalent to an eviction. The covenantee must be either kept out or put out of possession, In the former case there is a quasi or constructive eviction suffi cient to give effect to the covenant.

The only case which I have been able to find decided, either in England or this country, which is nearly, if not quite in point for the defendant, is that of Kortz v. Carpenter, 5 Johns. 120. That was an action for breach of a covenant for quiet enjoyment, and the declaration alleged a breach of this covenant, "and that the premises described, etc., at the time of executing the deed, and a long time before, etc., to wit, time out of mind, were adversely, by lawful title and right, held, possessed and enjoyed by the proprietors and claimants of the great or Hardenbergh patent, etc., and so the plaintiff says," etc. The defendant demurred to the declaration, because the plaintiff alleged "no eviction, nor any disturbance to or interruption of the plaintiff in the enjoyment of the premises, nor any act alleged to have been done in relation to the premises since the deed was executed." There was joinder in the demurrer, and the case was disposed of by a per curiam opinion, as follows: "This case cannot be distinguished from that of Waldron v. McCarty, 3 Johns. 471. The covenant for quiet enjoyment goes to the possession and not to the title. It appears to be a technical rule that nothing amounts to a breach of this covenant but an actual eviction or disturbance of the possession of the covenantees. 8 Co. 89 b; Comyn's Rep., Anon, 228. The defendant is, therefore, entitled to judgment." That case seems to have been summarily disposed of, and for the broad doctrine laid down there was little or no authority. In the case of Waldron v. McCarty, the covenantee obtained possession of the premises, and was in the possession, when he sued for breach of the covenant, never having been evicted, and hence that case was entirely unlike the latter one for which it was cited as authority. The case of Kortz v. Carpenter was unlike the one now under consideration in this, that in that case there was no allegation that the covenantee had made any efforts or taken any legal proceedings to obtain possession; and that consideration may have influenced the decision, for at that time it was supposed that there must have been an eviction by process of law before suit could be maintained upon such a

Shattuck v. Lamb.

covenant. Greenby v. Wilcocks, 2 Johns. 1; Lansing v. Van Alstyne, 2 Wend. 564. It has, however, since been settled in this State that there need be no eviction by process of law, but that a covenantee may voluntarily surrender possession to one having paramount title, and then maintain his action for breach of cove nant. Greenvault v. Davis, 4 Hill, 643; St. John v. Palmer, 5 id. 600; Fowler v. Poling, 6 Barb. 165. That case has never been followed in this State in any reported cases where the precise question was involved, but it has received some countenance in the dicta of learned judges. In Beddoe's Executor v. Wadsworth, 21 Wend. 120, COWEN, J., says: "No possession ever having been taken under the deed, there could be no actual eviction, which is said to be essential to a recovery upon a covenant of warranty.” In St. John v. Palmer, supra, BRONSON, J., says: "If the covenantee never had the possession, or if he had the possession and retains it still, it is impossible that there should have been an eviction, and no action will lie, however hard the case may seem to be." In the case of Rindskopf v. Farmers' Loan and Trust Company, 58 Barb. 36, there was a general covenant to warrant and defend the premises conveyed against all lawful claims, and it was held that this included the covenant for quiet enjoyment. In that case, the deed containing the covenant was executed in 1852, when third parties were in the adverse possession of the premises conveyed. No actions were commenced to recover the possession until 1867, when the parties in possession succeeded upon their adverse possession. JOHNSON, J., writing the opinion, after saying, that as there had been no possession under the conveyance, there could have been no eviction, says: "The plaintiff, and others claiming under or through Friselle (defendant's grantee), have not lost their land by a title paramount existing at the time the covenant in question was made by the defendant, but by their own laches in suffering an imperfect and inferior claim of title to become a legal title paramount to theirs."

On the contrary, in Withers v. Powers, 2 Sandf. Ch. 350, note, it was held, that "an eviction is established by proof, that at the time of the purchase the lands sold were actually occupied under a valid hostile title, so that the purchaser could not obtain possession of the same, and whereby he never did obtain actual possession." That was not an action upon any covenant, and is valuable only as some authority defining what may constitute a legal evic

Shattuck v. Lamb.

tion. In Gardner v. Keteltas, 3 Hill, 330, NELSON, Ch. J., says: "The covenant of quiet enjoyment means to insure to the lessee a legal right to enter and enjoy the premises, and if he is prevented from entering into the possession by a person already in, under a paramount title, the action may be sustained. That was decided in Ludwell v. Newman, 6 T. R. 458. In such a case no ouster or expulsion is necessary on which to predicate a suit, as the lessee is not bound to enter and commit a trespass." In Winslow v. McCall, 32 Barb. 241, the action was for breach of covenant of warranty and quiet enjoyment, and the premises conveyed were, at the time of the conveyance, in the possession of a third person, and the covenantee was never actually in the possession, yet it was held that he could recover.

It will thus be seen that the rule to be applied to such a case as this is not thoroughly settled in this State; at least not so thoroughly settled as to forbid further consideration. The claim that an action for breach of covenant for quiet enjoyment cannot be maintained when, at the time of the conveyance, the premises were actually in the possession of a third person under a paramount title, and the covenantee has not been able to obtain possession, has received but little countenance outside of this State. The rule is otherwise in England as was admitted by Judge COWEN, in Beddoe's Executor v. Wadsworth, 21 Wend. 126. In Clarke v. Harper, found in 6 Vin. 427, the action was upon an express covenant for quiet enjoyment. The plaintiff set forth in his declaration that the lands belonged to the king, who had conveyed them to J. S. The defendant demurred because the plaintiff did not allege an entry by himself, and so could not be disturbed. The court held the declaration good for having set forth a title in the patentee of the king, that the plaintiff should not be enforced to enter by a tortious act, and rendered judgment for plaintiff. This same principle was recognized in Hacket v. Glover, 10 Mod. 143; and in Ludwell v. Newman, 6 T. R. 458, it was decided that a covenant for quiet enjoyment in a lease meant a legal entry and enjoyment, and was broken by a prior lease to another who had taken possession. In 5 Wentworth's Pl. 53, a work published in the latter part of the last century, there is a form of declaration in an action of covenant where the breach assigned is that the plaintiff was hindered and prevented from entering and was kept out of possession. In Platt on Cov. 327, it is said that to qualify a party to support