The opinion of the Court, at a subsequent term, was delivered by
Mellen C. J.The action on the covenant of freedom from incumbrances was prematurely brought, and nothing but nominal damages were recovered; still it is admitted that the judgment in that action would be a good bar to a second action on the same covenant, for the same breach. But it is contended that it is no bar to the present action, founded on the covenant of warranty, or covenant for quiet enjoyment. This action was not commenced until after the recovery by Esther Thompson of her dower and damages against the present plaintiff. But her dower was not actually assigned, because it was prevented by a compromise between the parties, by which the plaintiff extinguished her title by paying her one hundred and five dollars. The question for decision is, whether the present action is barred by the former judgment. It is very clear that the two covenants are different in their character. The covenant in the first action is a covenant in presentí. That in the present case is a covenant in futuro, which runs with the land. The counsel for the defendant has contended that there is another marked distinction, and one of importance as applicable in the case before us ; namely, that the covenant of freedom *175from incumbrances extends merely to those claims which others have on the lands, which lessen its value to the purchaser, but are not inconsistent with his legal title; as an easement, • a mortgage, an outstanding lease, a right of dower, «fee. «fee., but that the covenant of warranty extends to the whole title, and that no action can be maintained upon this covenant except in those cases where the plaintiff has lost his land, by eviction or ouster by elder and better title. Such a warranty was at common law the foundation of a voucher by the tenant when impleaded, and if he lost the land he might have judgment to recover of the warrantor, other lands of equal value; but this course of proceeding is unknown with us. In support of his position the counsel has cited several cases. In Marston v. Hobbs, certain general principles are laid down, not immediately bearing on the point. In Bearce v. Jackson, the Chief Justice observes, that to entitle a plaintiff to recover on the covenant of warranty, he must shew an actual eviction or ouster by a paramount title. In Twambley v. Henley, the same principle is stated, in nearly the same words ; but in neither expressing, in terms, what was intended by a paramount title. In Prescott v. Trueman, the declaration was upon the covenant of freedom from incumbrances ; at least the question before the Court arose upon a demurrer to a count upon that covenant; and the breach alleged was that the paramount title was in another person, at the time of Trueman’s conveyance to the plaintiff. Parsons C. J. in delivering the opinion of the Court, after observing that an easement, a mortgage or a claim of dower is an incumbrance, observes, “ And for the same reason, a paramount right which “ may wholly defeat the plaintiff’s title is an incumbrance. It “ is a weight on his land which must lessen the value of it. If “ it should appear to the jury who may inquire of the damages, “ that the plaintiff has, at a just and reasonable price extin- “ guished this title, so that it can never afterwards prejudice the “ grantor, they will consider this price as the measure of dama,- “ ges.” Now this last case only decides that in an action founded on the covenant of freedom from incumbrances, the plaintiff may recover damages for the loss of the land; or what amounts to the same thing, a sum of money equal to the value *176of the land which he would have lost forever, had he not paid the sum to extinguish the paramount title : yet an action on the warranty, we apprehend, would also be proper in such case for the recovery of damages, as was decided in the case of Hamilton v. Cutts, cited by the counsel for the plaintiff. There no actual eviction by process of law had taken place, nor any ouster, because the dispossession was by consent of the plaintiff while he was tenant in possession; but in that case he submitted to a paramount title; and the Court observed, that there was no necessity for him to involve himself in a lawsuit to defend himself against a title which he was satisfied must prevail. There seems to be no difference in principle between yielding up the possession to him who owns the paramount title, and fairly purchasing that title, so far as respects the right to recover damages on the warranty.
In the two preceding cases, above cited, viz. Bearce v. Jackson, and Twambly v. Henley, it was stated that an action could not be sustained on the covenant of warranty, unless there had been an eviction or ouster by a paramount title; but still the general position thus stated is to be considered as qualified by the doctrine previously established in Hamilton v. Cutts.
Thus it is seen that none of the cases* cited by the counsel for the defendant, go the length of proving the principle to be correct, that an action on the covenant of warranty can in no case be maintained, except where there is a loss of the land warranted, by an elder and better title. A different principle is established in the case of Sprague v. Baker, 17 Mass. 586. It was an action of covenant broken, upon a deed, containing the usual covenants against incumbrances, of warranty, &c. White and wife mortgaged the premises to Morse and Bachelder, and afterwards conveyed the same to Baker, the defendant; he conveyed the same to Hitchings with warranty and the usual covenants of seizin, of good right to convey, and against incumbrances; and Hitchings conveyed the same to Sprague, the plaintiff, with similar covenants. It was objected that the plaintiff being an assignee of Hitchings, could maintain no action against Baker, on the covenant against incumbrances, made by him ; as that covenant was broken as soon as it was made; *177and was one which did not pass with the land to the plaintiff. The Court gave no definite opinion as to the soundness of the above objection ; the Chief Justice saying, “ as we have no “ doubt that the plaintiff is entitled to judgment upon the other “ covenant,” (the covenant of warranty.) — “ The words of the ££ covenant are, to warrant and defend (the premises) against “£ the lawful claims of all persons,’ and it is agreed that before, "and at the time of the grant to Hitchings, there was a claim ££ on the land by way of mortgage ; that after the assignment, ££ the mortgagee demanded possession of the plaintiff, or the ££ payment of the debt due on the mortgage, and that he, to “ avoid a suit, with which he was threatened, and against which ££ he could not defend himself, paid the sum due on the mort- “ gage. Against this claim, therefore, Baker has not defended ££ him, according to the express words of the covenant. If the “ plaintiff had formally yielded possession, and immediately “ after, had extinguished or purchased in the mortgage, he might have recovered against the defendant, on the authority of Hamilton v. Cutts & al. There is nothing to distinguish the two cases but a point of form which does not affect the merits of the question.” — And we may add that the case before us differs only in a point of form from Hamilton v. Cutts, and Sprague v. Baker. This last case appears to have been decided by a full bench, and it is, in our judgment, a decisive authority in favour of the plaintiff'. The language of the covenant in Baker’s deed to Hitchings is the same as in the deed of Thompson to the plaintiff. Such being our opinion on the main question, the objection made to the admission of certain parol evidence on the part of the defendant, becomes of no importance to the plaintiff, as we do not consider the facts thus proved, of such a character as to influence the Court in their decision. The widow’s judgment for her dower, is not to" be impeached or affected by her declarations or any of the facts proved by parol. We are all of opinion that the action is well maintained on the covenant of warranty; and, according to the agreement of the parties, judgment must be entered for the plaintiff for $105,00 damages, 11,50 costs of reference and costs of Court.