them to it; it shews that it cannot be an incident annexed to land, that the owner and occupier should for purposes wholly unconnected with the land, and merely because he is owner and occupier, have a right of road over other land; that a grant of such a privilege or easement can no more be annexed so as to pass with the land than a covenant for any collateral matter. It might be a question to which class of cases would belong a covenant not to erect an edifice on a street, highway or common, owned by the grantor, in front of premises conveyed. It is decided in New York that such a covenant runs with the land; it is the grant of a privilege or easement which passes under the grantee's conveyance to his assignee. Trustees of Watertown v. Cowen, 4 Paige 514. 10. Of covenants of warranty or for quiet enjoyment; how these covenants run with the land, and give an assignee a right of action. At common law a warranty is a foundation of a voucher by the tenant when impleaded, and if he lost the land he might have judgment to recover of the warrantor other lands to the value. Or when he could not vouch, or feared to be impleaded, he might, while tenant of the land, sue a real action on a writ of warranty of charters, in which he might have judgment to recover his warranty, which would bind the lands of the warrantor from the date of the writ. But the demandant could not have execution for other lands in value until he had lost his land. And if they were lost in an assize, or on a writ of entry, in which damages were recovered against him, he might also have execution for other lands in value, and for damages. Also at common law, the tenant, after he had lost his land, might bring a personal action of covenant, on the covenant to warrant and defend, and recover a satisfaction in damages: but he must assign as a breach of the covenant, an ouster by a title paramount. The two former methods of recovering a recompense in value, have never been practiced in Massachusetts, but the immemorial usage has been to recover damages in a personal action of covenant on the warranty. Parsons, C. J. in Marston v. Hobbs, 2 Mass. 436. So it is also in New York, Townsend v. Morris, 6 Cow. 126; and in Virginia; the technical warranty which formerly existed has been altogether disused, if not abolished; and its place is now supplied by covenants which better suit the present condition of things. 8 Grat. 404; 4 Leigh 139. The forms of such covenants are given ante, p. 46, 7. On a covenant to warrant and defend the land to the grantee, his heirs or assigns, if that covenant be broken by eviction, there is now remedy, not in the ancient way by voucher, warrantia chartæ or rebutter, but by a personal action of covenant. Gore v. Brazier, 3 Mass. 544; Townsend v. Morris, 6 Cow. 127. Such a covenant or a covenant for quiet enjoyment, or for a further conveyance, being a covenant in futuro, runs with the land, and will pass to an assignee who becomes legally possessed of the land. Shelton v. Codman &c. 3 Cush. 320; Chapman v. Holmes, 5 Halsted 30; Van Horne v. Crain, 1 Paige 459; Lewis v. Cook, 13 Iredell 193. It will so pass although the covenant be in terms only with the grantee and not with him and his assigns. Hopkins v. Lane, 9 Yerger 85. An assignee, in whose time one of these covenants is broken, may for such breach bring an action in his own name against the original covenantor. Suydam v. Jones, 10 Wend. 183. The party who has sustained damages from the breach, whether he be the original covenantee or an assignee-may recover those damages. Haffey's heirs v. Birchetts &c. 11 Leigh 90; and if the covenantor be dead they may be recovered against his executor or administrator. Chapman v. Holmes, 5 Halsted 30; Tabb v. Binford, 4 Leigh 139. 11. What estate must pass to the covenantee to make a covenant of warranty or quiet enjoyment effectual. If the grantor be in possession of the land at the time of the execution of the deed, his possession and his estate, whatever it may be, will pass to the grantee, and will support a covenant of warranty contained in the deed. Moncure, J. in Dickinson v. Hoomes's adm'r &c. 8 Grat. 396; Randolph's adm'x v. Kinney &c. 3 Rand. 396, 7. Whether the grantor gained possession by his own disseisin, or whether he was in under a disseisor, is immaterial. Marston v. Hobbs, 2 Mass. 439. It is enough that at the time of his conveyance he was in fact in possession of the land conveyed, claiming title to it. Slater &c. v. Rawson, 1 Metcalf 456; 6 Id. 439. When there is such possession in the grantee, and he conveys, the covenant passes with the land, and the assignee if evicted, (however remote he may be,) can maintain in his own name an action for the breach of that covenant. Thayer v. Clemence, 22 Pick. 494; Clarke &c. v. Swift, 3 Metcalf 395; Beddoe's ex'or v. Wadsworth, 21 Wend. 120; Fowler v. Po ling, 2 Barbour 305; 6 Id. 166. A fortiori, it is so where the grantor is not only in possession, but has a title to the land, though not such a title as is conveyed and warranted to the purchaser. Dickinson v. Hoomes's adm'r &c. 8 Grat. 401; Bally v. Wells, 3 Wils. 36. On the other hand if the grantee, though he may have had possession, has at the time of his conveyance to another, neither seisin in law nor in fact, then the covenants made with him do not pass to his assignee; and consequently such assignee can maintain no action thereon. Bartholomew v. Candee, 14 Pick. 170; Fowler v. Poling, 2 Barbour 305. 12. What eviction or ouster is necessary to sustain an action for breach of a covenant of warranty or quiet enjoyment. With respect to what is a breach of a covenant of warranty, the rules of the common law were supposed to have been departed from in South Carolina, Biggers v. Bradley, 1 McCord 500; but the subsequent case of McCaskill v. McCaskill, 3 Richardson 196, cited ante, 1 Rob. Pract. 503, shews that in that state there must be an eviction or ouster under lawful authority, to give a right of action on such a covenant. In Ohio it was considered an evil that if the title was defective, and the person who had better title chose to lie still, the grantee could do nothing for his future protection. To remedy this mischief, a statute was passed providing in respect to a deed of bargain and sale for lands, containing the common covenant of warranty, that the grantee may maintain an action on such covenant in the same manner that he might have done had the deed contained also a covenant of seisin. The statute is construed not to apply where the deed contains a covenant of seisin as well as a covenant of warranty. In such case, to maintain an action on the latter covenant, it is still necessary to allege an eviction under a superior or better title. Innes v. Agnew, 1 Hammond 387. In Pennsylvania, a judgment in ejectment without more, is not an eviction which will sustain an action on the covenant of warranty. There must be a change of possession. Paul v. Wilman, 3 W. & S. 410. How that change of possession may be effected, has been already stated. 1 Rob. Pract. 503. What is necessary to constitute a breach of a covenant for quiet enjoyment, has been lately considered in England, in Young v. Raincock, 7 Man. Gr. & Scott 339; 62 Eng. Com. Law Rep. 339. The action on such covenant is not maintainable where, as in Dyer 30a, the party disturbing had title of entry by the act of the covenantee himself; it is maintain able where the party disturbing enters under lawful title not derived from the covenantee. 7 Man. Gr. & Scott 339. In North Carolina it has been held upon such a covenant, that an adverse possession under the better title was the same as eviction, although the bargainee was never in possession under his deed, and so was not actually evicted. Grist v. Hodges, 3 Dev. 198; 2 Iredell 445. A distinction has been taken between a covenant for quiet possession and the covenant of warranty. Hall v. Dean, 13 Johns. 105. "The former," says Edmonds, J., "relates only to the possession, and the eviction is merely required to be of lawful right, while the latter relates to the title, and the eviction must be not only by lawful right, but by paramount title." 6 Barbour 170. But these covenants are generally the same in effect. 8 Grat. 396. To constitute a breach of either, it has often been laid down there must be a lawful eviction, or a disturbance of the possession. Such is clearly the rule in New Jersey. Stewart &c. v. Drake, 4 Halsted 140. The New York cases hold that the covenant for quiet enjoyment is not broken by any other acts than an entry or eviction, or a disturbance of the possession, Waldron v. McCarty, 3 Johns. 473; and a covenant to warrant and defend the premises, in the quiet and peaceable possession of the grantee, is not distinguished from the covenant for quiet enjoyment. Kortz v. Carpenter, 5 Id. 120. Though there was judgment against the covenantee, and nothing wanting but the execution of a writ of possession, it was held the covenantee must not stop short of an actual ouster if he would rely on his covenant; that he had no right to make any compromise until an actual breach had been shewn. Kerr v. Shaw &c. 13 Johns. 238; Webb & wife v. Alexander, 7 Wend. 286; Hall v. Dean, 13 Johns. 105; Whitbeck v. Cook, 15 Johns. 490. The Massachusetts doctrine, as laid down in 4 Mass. 349, has since influenced the New York decisions. Stone v. Hooker, 9 Cow. 157. Where, premises being unoccupied, the legal seisin follows the title, so that the covenantee, when he receives the deed, has constructive possession, a change of that constructive possession by a foreclosure and sale under a mortgage which was paramount, will authorize an action against a covenantor. St. John v. Palmer, 5 Hill 601. It is not now indispensable that the eviction should be by legal process. Greenvault v. Davis, 4 Hill 643. Upon examination of the authorities, Edmonds, J. has stated the rule in New York to be that there must be an actual disturbance of the possession; and that where the covenantee is actually out of possession, either by due process of law or by an entry of the rightful owner, or by a surrender to one having a paramount title, there is an eviction, the covenant is broken and an action will lie. Fowling v. Poling, 6 Barbour 171. In this case there was a surrender to one having a superior title, and that under due process of law in a suit to which the covenantor was a party, and in which she had full opportunity to resist and impeach the claim set up as paramount to hers. To that extent it was considered there was a breach of the covenant. In Massachusetts, while there may be an eviction by judgment on a mortgage, Thayer v. Clemence, 22 Pick. 494, or by an entry by the mortgagee for condition broken, Tufts v. Adams, 8 Pick. 547, it is considered there may be other acts equivalent to an eviction. Where a party having a paramount title threatened to enter and expel the covenantee, and the covenantee yielded to the claim, against which he could not defend himself, it was considered a breach of the covenant of warranty. Hamilton v. Cutts, 4 Mass. 349; Sprague v. Baker, 17 Id. 586; White v. Whitney, 3 Metcalf 81; Whitney v. Dinsmore, 6 Cush. 128. There is this difference between an eviction under a judgment and what is termed an ouster in pais, that in a suit on the covenant the plaintiff must in the one case prove the validity of the title to which he yielded, while in the other the judgment would be conclusive evidence of title, if he had vouched his covenantor to defend. Shaw, C. J., 3 Metcalf 88; 3 W. & S. 409. The Massachusetts doctrine, that there is no necessity for the covenantee to involve himself in a law suit to defend himself against a title which he is satisfied must ultimately prevail, was referred to in Virginia with approbation, by Tucker, P., in Haffey's heirs v. Birchetts &c. 11 Leigh 88. Subsequently the position in 4 Kent's Com. 471, that an actual ouster or eviction is necessary to constitute a breach of the covenant of warranty, or covenant for quiet enjoyment, received support. Findlay v. Toncray, 2 Rob. 379. Two judges (Baldwin and Allen) held that a purchaser at a sale under a deed of trust, conveying land with general warranty, could not apply part of the purchase money to extinguish a dower right in the property existing at the time of the warranty, and to pay taxes assessed on the property before the sale was made; for supposing the purchaser as assignee of the trustee, to be entitled to the benefit of the warranty, he could have no right of action on it until eviction. S. C. 379, 380. In a yet more recent case, it is laid down by Moncure, J. that the covenant of warranty and the covenant for |