Bartholomew Dunn was seized of a tract of land containing 640 acres, of which he conveyed 300 to his son Thomas, by deed, dated 17th December, 1841; and 300 to his son John, by deed, bearing dated 23d of February, 1842.
It turns out that the deed to Thomas, includes 22 acres of the land described in John's deed.
John sold to the plaintiff, by deed of bargain and sale, dated 24th February, 1842, according to the description in his father's deed to him; of course including the same 22 acres covered by Thomas' deed, with the usual covenant for quiet enjoyment.
Neither party had been in possession of the lapped part until after the plaintiff entered; then Thomas took possession of the lappage, and commenced cultivating it; upon which entry this action was brought.
Upon this state of the facts, his Honor instructed the jury *Page 204 that the plaintiff was entitled to recover. Defendant excepted.
Verdict for the plaintiff. Judgment and appeal. The opinion of the Court in Coble v. Wellborn, 2 Dev. Rep. 388, is decisive of the question raised in this case. A disturbance of the possession is a breach of a covenant for quiet enjoyment, if made by a person holding the superior title. Such a covenant does not guarantee the title — that a superior one is not in another, but that if it is, he will not disturb the covenantee's possession. The case referred to, expressly states that an eviction may be with or without legal process; no matter how made, if made under a superior title, it is sufficient. In the present case, the brothers, Thomas and John Dunn, claimed title under their father, who was the owner of the whole tract, of which the portions conveyed to the brothers were component parts. Thomas' conveyance was the elder; that to John lapped over that of Thomas, covering about twenty acres. Each brother took possession of the portion conveyed to him, but neither was in the actual possession of the lappage. John conveyed to the plaintiff, with a covenant for quiet enjoyment. Subsequently, Thomas Dunn took actual possession of the part covered by both deeds. This was an eviction for which an ejectment might have been brought by the present plaintiff against Thomas Dunn. It was, therefore, a breach of the covenant of quiet enjoyment, it being an actual disturbance of the possession of the present plaintiff; and we have seen from the case of Coble that the eviction need not be under legal process. Why bring an action in which the plaintiff knows he must be defeated? Why unnecessarily increase costs? It is sufficient if, upon the trial of the action upon the covenant, he is able to show that the eviction was under a superior title. Here Thomas Dunn had the superior title.
PER CURIAM. Judgment affirmed. *Page 205