If this view of the subject be correct, the case is not within the decisions cited from Kentucky, and the elder patent of the defendants, cannot prevail over the prior equity of the complainants.

BACKUS v. McCOY.

A covenant of seizin in a deed, when the covenantor is in possession claiming title is a real cov enant running with the land.

But where the covenantor is not in possession, and the title is defective, it is broken as soon as made, and never attaches to the land, being in the nature of a personal covenant.

Seizin in fact at the time of the covenant made, is sufficient to sustain it.

The rule of damages under a covenant of seizin is the consideration of money and interest.

This cause was adjourned for decision here, by the Supreme Court, sitting in Franklin county, and came up for decision upon the cause of action, set out in the declaration.

It was an action of covenant, and the breach alleged in the declaration was that of the covenant of seizin, without alleging any eviction, or specifying any damage sustained by the intestate, in consequence of the alleged defect of

title.

The defendant pleaded in bar, that the premises in question were seized and sold in execution, on a judgment against the intestate, in his life time, and con. conveyed by the sheriff's deed to the purchaser, before any damage was sus. tained by the intestate. The replication averred, that the alienation was made without the consent of the intestate, and for a sum less than the fair value. The defendant demurred generally.

Ewing, in support of the demurrer.

Wilcox and J. R. Swan, contra.

Opinion of the Court by JUDGE SHERMAN.

This action being brought to recover damages for a breach of the covenant of seizin, in a deed from the defendant, McCoy, to the plaintiffs' intestate, the counsel have not confined themselves to the question necessarily growing out of the demurrer, but have argued the general questions of when, under what circumstances, and to what extent the grantor, in a deed, is liable under the covenant of seizin. This covenant is one of very general use in conveyances of land in this state, and it is important, that all persons should understand its nature; the liability of the grantor thereon and the security the grantee thereby acquires. This being the first time an action founded on this covenant alone, unconnected with covenants of the grantor's right to sell for quiet enjoyment, or against encumbrances, has come before the whole Court for adjudication, we have not confined ourselves to the determination of those questions alone, arising from the demurrer.

The covenant of seizin is made for the benefit of the grantee, in respect of the land. It is not understood as a contract, in which the immediate parties are alone interested, but as intended for the security of all subsequent grantees. It is usually extended in terms, to heirs and assigns, as well as executors.

If it can justly be considered as a real covenant, it will be annexed to, and run with the land, and either go to the assignee, or descend to the heir, so long as the estate, such as it may be, to which the covenant is annexed, is in pos session of the covenantee, or those claiming under him. But if the covenant of seizin, is strictly a personal covenant, as it respects the course in which it shall go to the representatives of the covanantee, and must be broken, if at all, the moment the deed is executed, it can neither go to the assignee, or descend to the heir. The right of the grantee in such case, would be a mere right of action, for the recovery of damages, and upon his death would go to his per sonal representatives.

The English authorities, though not numerous on the covenant of seizin, show that so long as the grantee, or those claiming under him, remain in possession of land, the covenant of seizin, will attend, and run with the land, and that the heir or grantee, if evicted by paramount title, can recover upon this covenant. In Coke's Entries, 111, cited 4, John. Rep. 4, a case is reported, in which it was held, that the heir might sustain an action on the covenant of seizin, or hav. ing been evicted after the death of his ancestor, who entered in his life time, and died seized. In Lucy v. Livingston, (1 Vent. 175, S. T. 2 Lev. 26,) which was an action by the executors; on the covenant, for quiet enjoyment, the breach assigned, was, that the plaintiff's testator, was evicted in his life time. It was held by the court, "that the eviction being to the testator, he cannot have an heir or assignee of this land, and so the damages belongs to the executors, for they represent the person of the testator." In the recent case of Kingdon, executor, v. Nottle, (1 Maule and Sel. Rep. 355,) the court held, that the cove. nant of seizin, was a real covenant, running with the land, and would pass with the estate, to the assignee, or devolve on their heir: and that the executor could not sustain an action, without showing an eviction, or some special damage sustained by the testator. In Kingdon v. Nottle, (4 Maule and Sel. 53,) the devisee brought his action upon the same covenant, and recovered; the court re. peating the same doctrine, that the covenant of seizin is a real covenant, and runs with the land. In King v. Jones, et. al. (5 Term, 418,) the grantor covenanted that he would make further assurance upon request of the purchaser. The ancestor of the plaintiff requested further assurance, which was refused; when he died, and his heir, the plaintiff, was afterwards evicted, by title paramount, and it was held, that the heir could sustain an action; that it was a covenant running with land, and the ultimate damage not being sustained, in the life time of the ancestor, the covenant with the land, devolved upon the heir: The decision was at rmed on error, in the Court of the King's Bench, (4 Maule and Sel. 188.) It seems to be well settled by these recent decisions, that when the heir or assignee, acquires any interest in the land, however small, by even an imperfect or defective title, he shall be entitled to the benefit of all those covenants that concern the reality, and where he has been evicted by paramount title, he is the party damnified, by the non-performance of the grantor's covenant, and for such breach, may sustain an action. This seems to be reasonable in itself, as well as in accordance with the terms of the covenant. By considering the covenant of seizin, as a real covenant, attendant upon the in. heritance, it will form a part of every grantee's security, and make that, which otherwise, must be either a dead letter, or a means of injustice, a most useful

and beneficial covenant. A dead letter, when an intermediate conveyance has taken place, between the making of the covenant, and the discovery of the defect of title, and the covenantee refuses to bring suit. A means of injustice, when after the covenantee has sold and conveyed without covenants, he brings and sustains an action, on the ground that the covenant was broken, the mo ment it was entered into, and could not, thereafter, be assigned. When lands are granted in fee, by such a conveyance as will pass a fee, and the grantor covenants, that he is seized in fee, we can perceive no objection, legal or equitable to this covenant, as well as the covenant of warranty, passing with the land, so long as the purchaser, and the successive grantees under him, remain in the undisturbed possession and enjoyment of the land.

We are aware, that the Supreme Court of New York, have taken somewhat of a different view of this covenant; but highly as we respect the decisions of that court, and much as we now regret to differ from them, in opinion, we feel bound to express the result of our own judgments, in every case submitted to our consideration.

The Supreme Court of Massachusetts, (2 Mass. Rep. 433,) have held, that a seizin, in fact, of the gantor, at the time the deed was executed, was a suffi. cient compliance with the covenant of seizin in the deed. This determination, appears to us, to be founded on sound and correct principles. If the grantor is in the exclusive possession of the land, at the time of the conveyance, claiming a fee adverse to the owner, although he was in by his own disseisin, his covenant of seizin is not broken, until the purchaser, or those claiming under him, are evicted, by title paramount. He has a seizin in deed, as contradistinguished from a seizin in law, sufficient to protect him from liability, under his covenant, so long as those claiming under him may continue so seized. Actual disseisin, or the actual adverse possession of the lands of another is the commencement of a right, which, by lapse of time, may ripen into a perfect title, in the disseisor or possessor: and during the time that the grantee of such disseisor, remains in the undisturbed possession, of the lands, by reason of the conveyance of such disseisor, he cannot maintain an action, upon the covenant of seizin. No breach of such covenant will have taken place, if the grantor was seized in deed at the time of the conveyance, however that seizin may have been acquired. If the grantor, at the time of executing this conveyance, was in possession of the land, either as disseisor, or under color of title, it can. not be said, that he was not seized of an estate in the premises. When the grantor is not seized, either in deed or in law, at the time of conveying, the covenant of seizin must be broken, at the moment of executing the deed contain. ing it; and becomes thereby, a mere chose in action, and no longer annexed to, or passing with the land. This is the case, when the grounds are vacant, and the grantee has no title. But when the grantor is, at the time of the conveyance, in possession, under color of title, claiming a fee, the covenant of seizin, is a real covenant annexed to the land, and passes with it to the heir or assignee, until he who has the paramount title, may assert it, and evict the person in possession, when it becomes a mere claim to damages, to be enforced by him who has been evicted, and like any other, when in action, no longer assignable at common law.

The rule of damages, under a covenant of seizin, where a breach has been shown, is the consideration money and interest. It is the value of the land, as ascertained by the parties, and the money comes in lieu of the land, lost by the non-performance of the covenant. Damages cannot be awarded, either for the increased value of the land, or the improvements made. In the latter, the legislature have provided an ample remedy, in favor of the occupying claimant: and awarding the former, would in many cases, inflict a severe penalty on grantors, in good faith, having perfect confidence in their title to the lands they conveyed. If the grantor has practised any fraud, in the sale, the grantee may have his remedy, by an action on the case, in the nature of a writ of deceit. It is not unfrequently the case, that in conveying large tracts of land, especially in the Virginia military district, the grantor is seized, in the manner he covenants, of part only of the lands sold, and by means of interfering claims, defective entries, or other causes, he has no valid title to the residue. The measure of damages in such a case, is the same proportion of the consideration money and interest, as the value of the lands of which the grantor was not seized, is to the value of the whole; the consideration money being considered the value of the whole premises.

The pleadings in this case having terminated in a demurrer to the plaintiff's replication, has made it necessary to look into those pleadings, with reference to the principles governing the covenant of seizin, and the breaches assigned.

The replication is clearly bad, and is not attempted to be supported. The plea is equally bad: it neither denies nor confesses, and avoids the want of seizin of the defendant, of the lands, at the time of the conveyance, the breach assigned in the declaration; but avers, that, before any actual damages had been sustained, the lands were sold and conveyed by the sheriff, upon execution, as the property of Backus, the intestate. The declaration avers, generally, a want of seizin by McCoy, and this averment being unanswered by the plea, it must be taken, that McCoy, at the time of executing the conveyance, was neither seized in law or deed, of the premises conveyed, and of course, the coven. ant was broken, the moment it was entered into, and could not thereafter be assigned by the sheriff's deed, nor descend to the heirs of Backus, but must, with all other choses in action, pass to the personal representatives. The plea and replication, both being insufficient, there must be judgment for the plaintiff.

CASS v. ADAMS, ET AL.

That goods are taken in execution and are undisposed of is a good plea in bar to an action on an appeal bond.

The Court in Bank after intimating an opinion upon a general demurrer will permit it to be withdrawn and the pleadings amended.

This was an action of debt upon a bond given to perfect an appeal from the court of Common Pleas, to the Supreme Court. The declaration recited the condition of the bond, and set out, that upon the appeal, in the original case, judgment was rendered for the appellee, for a specific sum, which remained unpaid.

The defendants pleaded, that after the judgment rendered, in the case appealed, and before the commencement of this suit, the plaintiff sued out a writ of fi. fa. and put it into the hands of the sheriff, who levied it upon the goods of the judgment debtor, to a large amount, and returned such levy upon the writ of execution. To this plea the plaintiff demurred. The court of Common Pleas overruled the demurrer, and gave judgment for the defendants, and the plaintiff appealed to the Supreme Court. The decision of the cause, was adjourned here from Muskingum county.

Goddard, for the defendants. Silliman, contra.

By the COURT.

The appeal bond is given expressly to secure the payment of the sum that may be recovered upon the appeal, and we incline to the opinion, that whatever can be deemed a legal satisfaction of the judgment, is a bar to an action on the bond, although the money is not actually paid. The arrest of the defendant upon a ca. sa. is a satisfaction, though no money be paid. So is the levy of an execution upon goods, or land, whilst the levy is in force, and undisposed of. These principles are well settled. And the circumstances of our peculiar law, when the levy was made, does not vary the case, because the debtor could only avail himself of the benefit of that law, by giving security, which is substituted for the goods in the sheriff's hands, and leaves the principle the same, where such bond is not given, as though the law did not exist. If the bond had been given and the goods restored, that might be an answer to the plea, as might any other legal disposition of the levy, leaving the judgment unsatisfied. But the demurrer admits the levy to be in force and effect, and consequently admits the judgment satisfied.

This opinion being suggested, at the request of the plaintiff's counsel, leave was given, to withdraw the demurrer, and reply to the plea.

TREASURER OF PICKAWAY v. HALL.

The heir cannot sustain an action against the security on an administrators bond until the administrators accounts are settled with the court, or the plaintiff's right established by a judgment against the administrator.

A person who sues as heir must show himself such in h's declaration.

This was an action of debt, upon an administration bond. The plaintiffs set out in their declaration, all the proper facts, showing the granting of letters of administration and executing the bond, by the defendant's testator, as security for the administration. They then set out the bond and condition, and assigned as breaches, that the administratrix, generally, did not perform the duties required by law: that she did not return a true inventory; did not return an accurate statement of sales, and of monies received and paid out: that she had not presented her account for settlement, nor paid to the parties entitled, the moneys due to them, but had wasted the goods, &c. that came to her hands. And also that the administratrix had neglected and refused, though often reques