Opinion
(July Term, 1817.)
1. In an action of covenant for quiet enjoyment, a recovery of damages in trespass quare clausum fregit is sufficient to amount to a breach.
2. The judgment in such action is evidence to show the eviction, but is not conclusive against the warrantor as to the title of the land.
THE defendant sold to the plaintiff a tract of land, for which he executed a deed containing this warranty: "And the said John Shaw, for himself, his heirs, and executors, will forever warrant and defend the said land against the lawful claim or claims of all persons whatsoever." The land being unoccupied, the plaintiff cut down some timber and carried it away; on which an action of trespass quare clausum fregit was instituted against him by one McKethan, of which suit due notice was given to the defendant. The plaintiff resisted the claim of McKethan, for whom a verdict was found under the direction of the presiding judge; and soon afterwards this action of covenant was brought on the preceding warranty. The declaration stated the suit and judgment of McKethan and his title paramount. To this declaration there was a general demurrer.
McMillan in support of the demurrer.
Henry, contra.
It is a general rule that a covenant for quiet enjoyment is not broken without an eviction by better title; but it is wholly immaterial whether the eviction is effected by legal process or by private disturbance and molestation. This point was made in one of the cases cited for the plaintiff, but afterwards abandoned as untenable. But if a legal recovery were necessary, I should not hesitate in considering the judgment in an action of trespass quare clasum fregit, as effectual for that purpose; because it is, in this State, a common and convenient mode of trying the title to land, of which there is no actual possession, and because enough appears in the averments of the declaration and the statement of facts to satisfy me that the title was put in issue in that very suit. It would be a strange method of warranting a title to land to leave the purchaser exposed forever to a legal claim of damages whenever he exercised the least act of ownership over it.
With respect to McKethan's judgment, it must be proper evidence to a certain degree in order to show the eviction; but I think it has been decided by this Court in the case of Shober that it is not conclusive upon the seller so as to prevent him from showing, in an action upon the warranty, that he has in fact a better title than the recoverer.
It is contended in support of the demurrer that the covenant contained in the deed is nothing more than a covenant for quiet enjoyment, and as there is no allegation in the declaration (632) of an entry and eviction under a lawful title, by legal process, the plaintiff is not entitled to maintain his action. It is a well settled rule that under a covenant of warranty the plaintiff must show a lawful eviction in order to maintain his action. 2 Johns., 4; 3 Johns., 473; 7 Johns., 258; 11 Johns, 122. And the plain reason is this, if the eviction is not lawful, by some person having a better right to the possession, the covenantee would always be able, through the medium of the courts of justice, to maintain his possession and recover damages for the interruption; but if the eviction is lawful; the convenantee has no other remedy but on his covenant for quiet enjoyment. Ib., 34, 35; Cro. Eliz., 914; Cro. Jac., 425. If the parties had inserted a covenant of seisin in the deed, and a breach had been assigned on that covenant, the case would have been very clear. We are now called on to say whether there does not appear sufficient in this case to authorize the plaintiff to recover on the covenant contained in the deed, under the circumstances attending it; or, in other words, whether it was necessary for the plaintiff to allege and prove that he had been evicted by a legal title in an action of ejectment. It appears by the case that the plaintiff, by virtue of the deed, entered upon the land and had some timber cut and carried away; and the declaration states that McKethan, by a better title, entered and held him out of possession. On an examination of the British authorities, it does not appear to be necessary for the plaintiff to show an eviction, in consequence of an action brought against him, and a recovery; it is sufficient that he state in his declaration that he was turned out of possession by one who had the legal title. 4 Term, 617, 620; 2 Wms. Saunders, 181, note 10. In the present case the title was fairly tried, the defendant (I. Shaw) had notice to defend; whether he did or does not appear from the case. The land being woodland, and no actual possession, the possession then followed the title, and that the court and jury said was in McKethan. This is equivalent to an eviction under legal process.
RUFFIN, J. I am of opinion that the recovery in the action of trespass against the plaintiff, as set forth in the declaration, is such a disturbance of his possession as will form a breach of the (633) defendant's covenant for quiet possession. In that respect it is tantamount to an actual eviction. But, like an eviction, it must be upon prior and paramount title to enable the plaintiff to recover. Here such a title is stated in the declaration and admitted by the demurrer. Wherefore I think the demurrer must be overruled.
NOTE. — Upon the first point, see Grist v. Hodges, 14 N.C. 198; Cowan v. Silliman, 15 N.C. 46; Clapp v. Coble, 21 N.C. 177. Upon the second point, see contra Wright v. Walker, 3 N.C. 16 , and Garland v. Goodloe, ibid., 351, which are, however, overruled by Saunders v. Hamilton, 3 N.C. 282; Pearse v. Templeton, ibid., 379; Shober v. Robinson, 6 N.C. 33.
Cited: Coble v. Wellborn, 13 N.C. 390; Martin v. Cowles, 19 N.C. 102.