This is the general rule in England and the United States. An exception to it has prevailed in Massachusetts. In that state it is considered that seisin in fact of a grantor claiming right to the premises will authorize covenants, both of seisin and right to convey, 1 Metcalf 455; that a seisin in fact is sufficient, whether he gained it by his own disseisin, or was in under a disseisor; that if at the time he executed the deed he had the exclusive possession of the premises, claiming the same in fee simple, by a title adverse to the owner, he was seized in fee, and had a right to convey. Marston v. Hobbs, 2 Mass. 439; Twambly v. Hendley, 4 Id. 442; Prescott v. Trueman, Id. 631.

The fact that in English deeds there is sometimes inserted a covenant that the grantor has good right to convey an indefeasible estate in fee, is alluded to in the Massachusetts cases; it seems, that such a covenant is not usually introduced into their deeds of conveyance. 4 Mass. 631. The covenant in Marston v. Hobbs was, that the grantor was "lawfully seized in fee, and had a good right to convey;" between which and the covenant alluded to as in the English deeds, the Massachusetts judges take a distinction.

The decisions of the English courts, in Bradshaw's case, 9 Rep. 60b; Muscot v. Ballet, Cro. Jac. 639, and Glenister v. Audley, Sir T. Raym. 14, were considered by the supreme court of New York to give the rule that must govern in an action on a covenant that the grantors were "seized of an indefeasible estate of inheritance in fee simple," &c. Abbott v. Allen, 11 Johns. 252. The same rule is established in Vermont. Though a defendant may be seized in fact at the time of executing the deed, yet if he was not seized of an indefeasible title according to his covenant an action may be maintained for the breach thereof. Garfield v. Williams, 2 Vermont 328.

In Connecticut, also, it is adjudged that an actual seisin or possession will not satisfy a covenant that the grantor is seized of an estate in fee simple, if the legal fee and freehold are in another person. The true construction of the covenant is considered to be that he is legally seized; if he is not, but has merely a naked possession, the contract is not kept because it is untrue. Mitchell v. Hazen, 4 Conn. 513.

2. Of covenant by grantor that he is true owner; or that he has good right to convey.

Within the same principle falls a covenant by the grantor that he is true owner, Chapman v. Holmes, 5 Halsted 29;

or that he has good right to convey. Bickford v. Page, 2 Mass. 455; Mitchell v. Hazen, 4 Conn. 511. When the action is on a covenant of good right to convey an indefeasible title, it cannot be said, even with plausibility, that the defendant's having had a naked possession would confer on him a right to make such conveyance. S. C.

3. Of the covenant against incumbrances.

A covenant, by a grantor, that at the time of the sealing and delivery of the deed the premises conveyed are not incumbered by any mortgage or by any incumbrance whatsoever, is broken as soon as it is made and before eviction or disturbance, if, at the time of the execution of the deed, the premises were incumbered by an existing unsatisfied mortgage or judgment. To maintain an action on such covenant, it is not necessary that the grantee should wait until eviction or disturbance, or until he has paid off the mortgage or judgment, or has been impleaded, prosecuted or put to costs, trouble or expense. Garrison v. Sandford, 7 Halsted 263. The measure of damages will be different under different circumstances. Prescott v. Truman, 4 Mass. 630; Wyman v. Ballard, 12 Id. 304; Mitchell v. Hazen, 4 Conn. 512. If the grantee sue before he is evicted, or has incurred any expense, he will in general be entitled to nominal damages only. Delavergne v. Morris, 7 Johns. 358. If he pay off the incumbrance, or be otherwise disturbed, his claim will be enhanced. Funk v. Voneida &c. 11 S. & R. 112; Hall v. Dean, 13 Johns. 105. But whether he pay the debt or not-whether he be evicted or not-there is a right of action if there was in fact such a mortgage or incumbrance as was covenanted against. S. C.; Garrison v. Sandford, 7 Halsted 263; Stewart &c. v. Drake, 4 Id. 140. And it is no defence to such action that both parties, when the covenant was made, knew of the outstanding mortgage; the construction will be that the grantor took that upon himself, and to save himself he must extinguish the incumbrance. 22 Pick. 493.

The supreme court of Massachusetts holding (as stated ante, p. 105) that to be no breach of a covenant of seisin or of right to convey, which is a breach elsewhere, has endeavoured to remedy the mischief by giving a large construction to the covenant against incumbrances. When a seisin in fee has been acquired by a conveyance from one who was in by disseisin, if the person who has so acquired such seisin grant the same in fee, and covenant that the lands are free from all incumbrances, it considers that the paramount right in the dis

seisee or his heirs is an incumbrance within such covenant. The court holds, on general principles, that every right to, or interest in the land granted, to the diminution of the value of the land, but consistent with the passing of the fee of it by the conveyance, is an incumbrance. In its opinion a right to an easement of any kind in the land is an incumbrance; so is a mortgage; so also is a claim of dower, which may partially defeat the title, by taking a freehold in one third out of it. And for the same reason, a paramount right which may wholly defeat the title is considered by it an incumbrance. It is a weight on the land which must lessen the value of it. cott v. Truman, 4 Mass. 629, 30; Chapel v. Bull, 17 Id. 220.

Pres

4. On covenants broken before the covenantee assigned, the right of action is generally limited to him or his personal representative.

Where the owner of an estate in fee, which was subject to a lease for life, had acknowledged a statute and afterwards granted the reversion, covenanting with the grantee and his assigns that it should be discharged within two years of all statutes and incumbrances except the estate for life, an action on this covenant, brought by the assignee of such grantee for a breach which took place before the assignment to the plaintiff, was held not to be maintainable; for it was then a thing in action, and could not be transferred over. Lewes v. Ridge, Cro. Eliz. 863; 8 Taunt. 227; 4 Eng. Com. Law Rep. 82, 3.

And where a covenant with a grantee, his heirs or assigns, for his and their enjoyment was broken by his being evicted, and he afterwards died, it was resolved, in the time of Charles the 2d, that the eviction being to the testator he cannot have an heir or assignee of this land, and that his executor representing his person, though not named in the covenant, should have an action for the breach thereof. Lucy v. Levington, 2 Lev. 26; 1 Ventr. 175, 6.

In the United States, the courts of several of the states, following these decisions, have held that covenants broken the instant they are made, are not to be distinguished from ordinary choses in action, which, at common law, are incapable of assignment; that though one of the covenants be a covenant by the grantor that he is seized in fee, yet if he was not so seized, the covenant could not run with the land, for in such case there is no land that the covenantor could alien; but the covenant is a naked one, uncoupled with the right to the soil, and therefore incapable at common law

of being so transferred as to entitle the assignee to maintain an action for the breach of it. Greenby &c. v. Wilcocks, 2 Johns. Rep. 4; Fowling v. Poling, 2 Barbour 303; Marston v. Hobbs, 2 Mass. 439; Bartholomew v. Candee, 14 Pick. 171; Thayer v. Clemence, 22 Id. 494; Slater &c. v. Rawson, 1 Metcalf 456; Chapman v. Holmes, 5 Halsted 29; Garrison v. Sandford, 7 Id. 264.

Consequently, when the grantee brings an action on a covenant in the deed to him, alleging a breach of it at the moment that the deed was made to him, it is no answer to such action that the grantee has parted with his interest in the land by conveying it to another; for the covenant is a mere chose in action, which could not pass to the plaintiff's assignee, and the right to maintain such action must, notwithstanding the conveyance from the plaintiff, remain in him. Bickford v. Page, 2 Mass. 460; Wyman v. Ballard, 12 Id. 304. The deed from the covenantee may be to the covenantor; it may be a release of all right and title to the land, but that will not operate to release or extinguish the covenant of seisin before made with the covenantee. Bennett v. Irwin, 3 Johns. 365; 2 Mass. 460.

No estate passing by the deed to the covenantee, none will, at his death, descend to his heirs; the covenant cannot be connected with the estate, so as to run with it to the heirs, any more than to an assignee: the right of the covenantee, when a mere right of action to recover damages for breach of covenant in his lifetime, passes at his death, not to his heirs but to his personal representative. Off. of Ex. (Doddridge's) 65; Com. Dig., tit. Administration, B. 13; Bull. N. P. 158; Hamilton &c. v. Wilson, 4 Johns. 72; Randolph's adm'x v. Kinney &c. 3 Rand. 397.

5. Attempt in Maine to give by statute a remedy to an assignee on a covenant of seisin, or covenant against incumbrances.

The Revised Statutes of Maine, c. 115, § 16, 17, provide that "where real estate has been or may be absolutely conveyed to any person, his heirs or assigns, with a covenant that the grantor was seized of the same, and that it was free of all incumbrances at the time of such conveyance, the said estate then being under mortgage or other incumbrance, or the grantor not being then seized of the same, the assignee of such grantee, his executors or administrators, after having been evicted of the said estate by the elder and better title of the mortgagee, his heirs or assigns, may maintain an action of

covenant broken against the first grantor," &c. Notwithstanding this statute, it is still held that where the grantor, at the time of his conveyance, had neither seisin nor title, so that there was a breach of his covenant, and a right of action in his covenantee, a conveyance from that covenantee will not enable his assignee to maintain an action of covenant against the original grantor; for it is considered that such assignee has had no seisin, and cannot have been evicted. Ballard v. Child, 34 Maine 356.

6. Whether at common law, if there be seisin in fact passing from the covenantor to the covenantee, and then to his heir or assignee, the circumstance of the covenant being broken before the covenantee's death or assignment, will prevent the heir or assignee from maintaining an action for damage in his time. On this question the courts of England and Ohio on one side; those of Connecticut, Vermont and Massachusetts on the other.

In South Carolina a distinction has been taken between a case like Lewes v. Ridge, Cro. Eliz. 863, where the land was actually extended before the assignment, and the case of a covenant against incumbrances, where, subsequent to the assignment, dower was demanded and recovered, though by virtue of a right which existed at the time of the assignment. From the cases in New York and Massachusetts, in which there being a total want of title, the land did not pass, the court distinguishes a case in which some title passed, though it was incumbered. It holds that in this case an action will lie for the assignee at common law. McCrady's ex'ors ads. Brisbane, 1 N. & M. 104.

In New York, in the case of such a covenant to pay assessments, as is mentioned ante, p. 102, it is considered that the covenant is in substance a covenant to indemnify the lessor, and until performance, there is a continual breach, and therefore the assignee is liable, though the first breach happened before the assignment. Astor v. Hoyt, 5 Wend. 618.

These decisions in South Carolina and New York are entitled to be considered upon a question on which the court of king's bench has made a decision, which has been approved in Ohio, and disapproved in Connecticut, Vermont and Massachusetts.

In England, though the personal representative could maintain an action if the decedent was evicted in his lifetime, yet if he died seized, and the eviction was of the heir after the ancestor's death, the action of the heir seems to have been