This is an action of ejectment by the appellees to recover a parcel of land, called "Horner's Fishery," situated in Harford County. A former appeal in the case is reported in 82 Md. 1.
The land in question, together with the adjoining tracts, had been owned by the Misses F.F. and M.M. Smith, who devised the same to their brother, John Jay, for life with remainders in fee to his sons, who are the plaintiffs in this case. John Jay conveyed to one Baker, under whom defendant claims a tract of land alleged by defendant to embrace Horner's Fishery — thelocus in quo — after having received from his sons, the plaintiffs here, a conveyance of their interests as remaindermen, under the wills of the Misses Smith in a farm called Mould's Success.
On the former appeal the principal question was whether these deeds conveyed plaintiffs' remainder in Horner's Fishery. It was held that the intention to convey all the real estate devised by the wills, or this particular tract of land, is not so clear and manifest as to justify the Court in determining from the face of the deeds that Horner's Fishery was conveyed by them. And the case was remanded for a new trial to determine that question as one of fact.
Upon the present appeal there are no bills of exception set forth in the record, and the only question presented for consideration is the action of the Court below in sustaining a demurrer to defendant's plea for defense on equitable grounds. But it appears from the record that the plaintiffs' first prayer and defendant's first and second prayers all of which were granted, submitted to the jury the question whether the deeds from the plaintiffs to John Jay conveyed Horner's Fishery, the tract sued for, or not, and that this question was found by them in favor of the plaintiffs. *Page 82
The conveyance of the land, now sued for, by John Jay to Baker, under whom defendant claims, was a conveyance of the fee-simple interest in land by a life-tenant, and the present action is by the remaindermen, who do not claim under the life-tenant, to recover possession of the land after the expiration of the life-estate.
The defense relied on is stated in the plea to which a demurrer was interposed. "That a certain John Jay by his deed duly executed and delivered, bearing date on the fifth day of February, 1889, and recorded among the Land Records of Harford County, in Liber A.K.J., No. 63, folio 195, c., did convey the lands in plaintiffs' said declaration mentioned, to James B. Baker in fee-simple, and the said Baker did thereafter convey the same in fee-simple to the defendant; that in said John Jay's said deed to the said Baker, the said John Jay did for himself, his heirs, personal representatives and assigns, covenant that he and they would forever warrant and defend the said Baker, his heirs and assigns against all persons whomsoever setting up any claim to said lands, by, through or under him, and especially against the said plaintiffs; that in or about the year 1892, said John Jay departed this life, and the said plaintiffs are heirs at law of said John Jay; that said John Jay left a last will and testament, duly executed, to pass real estate, whereby he devised certain real estate to said plaintiffs; that whether as devisees or heirs at law as aforesaid, sufficient real assets belonging to their said ancestor at the date of his death passed to the plaintiffs, to satisfy the said covenant."
The appellant in his brief says: "The contention of the defendant is, that real estate of the value of the property in controversy having passed from John Jay to his two sons, the plaintiffs, barred the plaintiffs from recovering in ejectment, because of the warranty contained in the deed from John Jay to James B. Baker."
We think the defendant's plea in this case, is manifestly bad. The plea does not state nor allege that the title *Page 83 under which plaintiffs claim, was older and better than the title of the covenantor, John Jay, or that it was in existence at the date or before John Jay made the covenant. In Crisfield et al. v. Storr, 36 Md. 148, it is distinctly held that in an action for breach of covenant, the narr. must allege that the title under which plaintiff is evicted was better than that of the covenantor, or that it was in existence at the date and before the covenant was made. We quote from the opinion: "We think that this objection is well taken, and that the Court erred in not sustaining the demurrer. It is well settled that, in actions on covenant of warranty, it is necessary to prove that the eviction of the plaintiff was had under a title paramount, and existing at the date of the covenant, and this being so, it is equally necessary that the narr. should so allege. The reason assigned for the necessity for such an averment is, that it will be contended that the title of the person evicting is derived from the plaintiff, unless such an averment is contained in thenarr. The necessity for such an averment is even greater where there have been several intermediate conveyances, as in the latter case it would be intended, if the narr. did not aver that the title of the party evicting was older and better, and existing at the date of the covenant, that he had derived it from some one of the intermediate grantees. In such a case the title of the party evicting might well be older and better than that of the defendant in the ejectment, and yet not older and better than that of the covenantor, and if it was not older and better than the latter there would be no breach of the covenant." Fenwick v. Forrest, 5 H. J. 416, and cases there cited.
In the case at bar, the plaintiffs might claim under James B. Baker, or some other title which would not make a breach of John Jay's covenant. But apart from these considerations the demurrer to the demurrer to the defendant's plea was properly sustained. The plea should not have been filed as one for defense upon equitable grounds because the defense sought to be made by it, if valid at all, could have *Page 84 been availed of under the general issue plea. Bates v.Norcross, 17 Pick. 14.
For these reasons the judgment will be affirmed with costs.
Judgment affirmed with costs.
(Decided March 23rd, 1900.)