Opinion
June Term, 1823.
A covenant "to warrant and defend the right, title, and property to land against the lawful Claim or claims of any person or persons whatsoever" is not a covenant for seisin. Held, therefore, that an action will not lie for want of title in the covenantor to the land when he conveyed it until some claim has been made or the covenantor otherwise disturbed in his possession.
COVENANT on a deed, tried before Nash, J., at HERTFORD. The deed purported to be a conveyance by the defendant to the plaintiff of a lot of ground in Murfreesboro, and contained this clause: "And I, the said Henry Ramsay, do further bind myself, my heirs, executors, and administrators, to warrant and defend the right, title, and property of said lot unto him, the said Lewis Woodard, his heirs and assigns forever, against the lawful claim or claims of any person or persons whatsoever."
The alleged breach of this clause was that the defendant had no title to the premises at the time he executed the deed. The plaintiff admitted that he had never been in possession, nor had he brought any suit to obtain possession, and he rested his right to recover on the defendant's want of title and offered to show a good title in fee simple in another at the time of the conveyance by the grantor. The court ruled that the covenant contained in the deed was for quiet enjoyment only, not of seisin, and that it was not material whether the grantor had title; that the plaintiff, to recover, must show either an eviction or that he was kept out of possession on an action brought. The plaintiff was nonsuited and moved for a new trial. The motion was refused, and from the judgment plaintiff appealed.
The case was submitted without argument.
I think in the present case the plaintiff cannot recover. The defendant has not entered into a covenant for seisin, in which case an action no doubt would lie in case the defendant had no title in the land when he conveyed it or attempted to convey it. The present action is brought upon a covenant "to warrant and defend the right, title, and property against the claim of any person or persons whatsoever." It is not alleged that any claim has been made or that the plaintiff has been in any respect disturbed in his possession. I therefore think that the rule for a new trial should be discharged.
The other judges concurred.
PER CURIAM. Affirmed.
Cited: Midgett v. Brooks, 34 N.C. 147.