There is no reservation of the fence or rails in question in the deed. It purports to convey the entire premises; every thing that usually passes with the land and as part of it as well as the land itself. The covenant alleged to have been broken is as broad as the grant, and by it the grantor covenanted with his grantee that he was lawfully seized of an estate of *Page 575 inheritance in and had good right to convey every thing which the grant purported upon its face to operate upon. Prima facie the rails which were then lying in a fence upon the land were part of it and passed by the deed as land, with the seizin in fee in the vendor guarantied by the covenant.
But it is said that this fence in fact was not part of the freehold; that having been built by a tenant under an agreement that it might be removed, it was mere personal property and did not pass by the deed: and the argument assumes that if it was not a part of the realty and would not therefore pass by the deed, the covenant of seizin did not extend to it. But it is no answer to say that because the grantor had no title, and could grant none, to what upon the face of his deed he undertook to convey, the covenant of seizin does not therefore apply to it and is not broken. The same answer might be given with equal force in regard to the title to the soil itself. It is not so much a question as to whether the title to the rails did actually pass under the deed, as it is conceded that they did not: and if they had there would clearly have been no breach. But it is more properly a question what upon the face of the instrument and by its terms the grantor undertook to convey and to covenant that he was seized of. The undertaking is one thing and its effect upon the subject matter of the undertaking and the rights of the parties under it quite another. And it is precisely because the grantor undertook to convey and to be the owner of that to which he had no right, and could convey none, that the action lies if it can be sustained at all. If the covenant of seizin shall be found to apply to things of this nature in ordinary cases between grantor and grantee, it seems to me quite clear that the defendant in error must recover.
It was strenuously urged by the counsel for the plaintiff in error that the covenant of seizin does not apply to any thing in the nature of fixtures or appurtenances which may or may not belong to the freehold, according to extraneous facts or circumstances; that by it the grantor only covenanted that he was seized of a freehold estate in the premises, and that no other person had such an estate therein; and that the covenant had *Page 576 no application to any estate or interest in the premises less than a freehold. Before we adopt this doctrine as applicable to such things as usually pass by a conveyance as part of the realty, we must be careful to see the consequences to which it might lead. It has been well held that a highway regularly laid out running across land at the time of the grant was no breach of the covenant of seizin, because notwithstanding the easement the grantor was well seized of the title to the land and had good right to convey. (Whitbeck v. Cook, 15 John. 483.) But that is not this case. The want of seizin, of a right to convey, (which did not exist in that case,) is the very cause here alleged. It must be quite obvious, I think, that if a party under the circumstances of this case has no remedy under his covenant of seizin he must remain entirely remediless as regards his deed, because no other covenant is at all applicable. Under the covenants of warranty and for quiet enjoyment there must first be an eviction; and I think no one will seriously contend that the covenant against incumbrances has an application in any sense. Even conceding — which I do not — that the existence of a public highway or other easement is an incumbrance, it would not affect this case. Were the rule contended for the true one, it might and doubtless often would happen that a party holding premises under a deed with full covenants would have his premises stripped of buildings, fences, and every thing valuable belonging to the estate, and yet have no remedy against his grantor upon any covenant in the conveyance.
No one, I believe, has ever yet thought it necessary to require the grantor to insert a special covenant in his conveyance that he was seized and had good right to convey the buildings, fences, standing trees and growing grass upon the premises covered by the grant, and for the obvious reason that the covenant of seizin has hitherto been regarded as a sufficient protection against a want of title in the grantor, to any of these essential and often by far the most valuable portions of the premises purchased. The novelty of such a special covenant in a deed at this day would be a strong argument against its necessity. These personal covenants in our conveyances of real estate *Page 577 have been framed with great care and proved by long experience; and it can hardly be conceived that they have hitherto failed to protect parties or to give them a sufficient remedy in case of the loss of such valuable interests.
The ordinary covenant that the grantor is seized in his own right and has power to convey the premises granted must, it seems to me, be construed to extend to every thing attached to the soil that usually passes by deed as real estate, as fully as though the specific thing were named, or a covenant framed for it by itself; and such, I think, has been the general understanding of courts and conveyancers.
WRIGHT, J. and GRAY, J. were also for affirming the judgment.