Opinion
(June Term, 1830.)
1. An actual eviction is indispensable to sustain an action upon a covenant of quiet enjoyment. Therefore, where there had been a recovery in ejectment, upon title paramount, and before the issuing of a writ of possession, or any actual disturbance of his possession, the defendant in the ejectment purchased from the plaintiff — held, that there was no breach of the covenant for quiet enjoyment.
2. But a recovery in trespass quare clausum fregit is tantamount to an eviction — as judgment in that action implies that the plaintiff is in possession, and the entry of the defendant a trespass, which the law compels no man to commit.
3. Semble, that a recital in a deed purporting to convey a fee, from which it appears that the vendor has but an estate for life — but which was intended only to describe the land conveyed, does not qualify a covenant of quiet enjoyment, so as to confine it to the life of the vendor.
COVENANT for the breach of a covenant of quiet enjoyment contained in a deed executed by the defendant's testator to the plaintiff, the material parts of which are as follows: "Have granted, bargained, etc., unto D.C., his heirs, etc., all that tract of land, situate, etc., the same being a tract purchased by John McGee from Hugh Smith, and by the said McGee willed to his daughter Jane, and by her husband, John Wellborn, conveyed to me, the said W. B.; and I, the said W. B., do hereby covenant, promise, and agree to, etc., with the said D.C., his heirs, assigns, to warrant and forever defend the said granted premises against me, my heirs, and against the lawful claims of any other person, etc."
Nash Badger, for the defendant.
Gaston, for the plaintiff.
FROM GUILFORD.
After the death of John Wellborn, and before the commencement of this action, Jane Wellborn, his widow, the person mentioned in the deed as Jane, the daughter of John McGee, brought an ejectment against the plaintiff and obtained a verdict and judgment for the premises conveyed by the deed above recited. After this recovery the (389) plaintiff purchased the land from Jane Wellborn, who never sued out a writ of possession; neither was the plaintiff ever evicted, unless the said recovery was an eviction.
For the defendant it was objected that these facts did not in law amount to an eviction.
NORWOOD, J., reserved the point, and a verdict was taken for the plaintiff. Upon which judgment for the plaintiff was afterwards entered, and the defendant appealed.
The want of an eviction of the plaintiff is decisive of the case against him, and makes it useless to consider the other points debated. I strongly incline, indeed, to the opinion that there is a general warranty in the deed. For the history of the deeds and devises does not relate to the title, but to the identity of the land, as it appears to me from the words, "the same being a tract purchased," etc. They are words of more perfect description.
But the plaintiff cannot recover without showing an eviction. Our warranty is construed to be a covenant for quiet possession, and not of seisin. Nothing but a disturbance of the possession is a breach of it. It is not a covenant that another has no right, but that if he hath, he will not use it to disturb the bargainee's possession. The eviction may be with or without legal process; but there must be an (390) eviction in one way or the other, and upon paramount title. The mere judgment in ejectment only establishes the title, which existed before. For anything we know, the warrantor may, after such recovery, satisfy the true owner, and so the vendee may never be disturbed in his possession. This point was directly ruled in Kerr v. Shaw (13 Johns., 236), and the difference between a covenant for quiet possession and one for title or against encumbrances, is strongly exemplified by that and another case in the same book. ( Hall v. Dean, Ib., 105.)
Williams v. Shaw, 4 N.C. 630, has been cited for the plaintiff. But that differs from this. There was a recovery of real damages in an action of trespass quare clausum fregit; which is evidence of a disturbance in itself, since that action implies that the plaintiff is in possession, and the recovery implies that the defendant's entry was a trespass on the possession, and that he cannot re-enter without committing another trespass. No man is compelled to be a trespasser, and therefore when it has been judicially ascertained that another is in better title, it follows that he is kept out; which is equal to being turned out. The whole turns on the nature of this covenant, technically considered.
PER CURIAM. Judgment of the Court below reversed, and judgment of nonsuit entered.
Cited: Grist v. Hodges, 14 N.C. 200; Carson v. Smith, 46 N.C. 107; Parker v. Dunn, 47 N.C. 204; Jackson v. Hanna, 53 N.C. 190; Hodges v. Wilkinson, 111 N.C. 61; Britton v. Ruffin, 123 N.C. 69.
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