The lessees of the plaintiff were evicted and ousted from the possession of the premises, in an action of ejectment against them after notice of the pendency of the action, and a request to defend, made to the original grantor of the land then in suit. Ryerss, the intestate, conveyed with covenants of warranty and for quiet enjoyment, and his grantee conveyed to the plaintiff with like covenants. If, therefore, the plaintiff has been legally damnified by the ouster of his tenants or assignees, he may maintain the action. But before he can maintain it he must make satisfaction upon his own covenant to the person evicted. For no person can maintain an action to recover damages who has sustained none. (Withy v. Mumford, 5 Cowen, 187. 4 Kent, 472, n. b, and cases there cited.)
*282Assuming for the present that the plaintiff’s covenant to his lessees has been broken, it seems clear that when he had rested his case he had made out a complete cause of action. The record was conclusive as to the eviction, and he proved the payment of the costs of the suit. Prima facie, therefore, he was entitled to recover back the purchase money paid, interest upon it for six years, and the costs of the suit. This was the measure, and the only measure of the damages.
The defendant then on his part proved that by a subsequent suit the land had been recovered from the plaintiffs in the first suit, and restored to the plaintiff here, who had ever since possessed and enjoyed the same under his original title. The defendant’s counsel contends that this is a complete and perfect defense to the action. That the plaintiff having recovered possession under the Ryerss title, and continuing to hold under that, is estopped from treating the title as having in any manner failed, and is barred of his right of action upon the covenants in his deed. But this consequence I apprehend would scarcely follow. Notwithstanding the Ryerss title was* ultimately vindicated and established as the paramount title, in another suit in which Ryerss and the plaintiff were plaintiffs, it is nevertheless true that the plaintiffs’ lessees were in a former action against them legally evicted, and a title hostile to the Ryerss title established as the paramount title. The covenants in the deed were then broken and the right of action accrued. That judgment must be regarded as conclusive as to the breach of the covenants.
Did the ultimate establishment of the Ryerss title, and the restoration of the possession to the plaintiff, work a complete satisfaction? I think not. The plaintiff could no longer recover the purchase money, because the land granted was restored, and he was holding under the grant. But that did not satisfy the costs of the suit, .nor the interest upon the purchase money for the time the plaintiff, or those to whom he was compelled to restore, was deprived of the enjoyment of the land by the judgment ; which would have been part of the recovery in case there had been no restoration of the land. I think in such a case the *283restoration goes in mitigation of the damages merely, and does not work a complete satisfaction.
But-the damages which the law gives, in addition to the purchase money, are the costs of the suit and interest upon the purchase money for a limited time. In no event, unless there he a special covenant to that effect, can the annual value of the land, or the mesne profits recovered against the party, be resorted to, to fix the measure of damages. The party is still confined to the same species of damages as though the recovery were for the whole purchase money.
It was well said by Sutherland, justice, in Kinney v. Watts, (14 Wend. 211,) that “ if a purchaser takes the general covenants of warranty and quiet enjoyment, he has no right to complain that the law does not afford him full compensation for the loss and injury which he has sustained by eviction. If he resorts to an action upon this covenant he must take the rule of damages which the law has established for the breach of it.” It follows, in any view of the case, that the recovery here was wrong.
From the report of the referee it appears that he allowed to the plaintiff $150 per year as the annual value of the premises with interest thereon, as I infer from the’amount, for the whole time from the eviction to the restoration. The plaintiff if he was entitled to recover at all, could only recover the costs of the suit by which he was evicted, and the interest upon the purchase money mentioned in Ryerss’ deed to Wilber, for six years. The interest is the legal countervail to the claim for mesne profits. The law has fixed that as the measure of damages, beyond the purchase money and costs, in all actions of this character.
But there is still a more serious, and perhaps more difficult, question to dispose of, which goes to the foundation of the action. Has the plaintiff been legally damnified? Was he under any obligation to make satisfaction to the persons evicted ? If he was not, no matter what sums he may have paid, or what recompense he may have made to his tenants, the law affords him no redress in this action. He will be regarded as a mere *284volunteer in the matter, paying gratuitously. The plaintiff not being the party actually evicted, his right of action depended entirely upon the question of his liability to respond to the persons evicted. It is shown that he paid the costs of the suit against them and also the amount recovered as mesne profits. But this is nothing, unless he was under a legal liability to pay. The lease from the plaintiff, under which the persons evicted held, at the time of such eviction, was a lease or agreement for five years, in writing, not under seal. There is no express covenant in it; nor does it contain either the term grant or demise. At common law these terms grant and demise, in a lease for years, imported a general covenant of warranty of title in the lessor, or the right'to make a valid lease’, and for quiet enjoyment. (Grannis v. Clark, 8 Cowen, 36.) But since the revised statutes no covenant can be implied, in any conveyance of real estate. (1 R. S. 738, § 140.) This has been held to apply to leases for years. (Kinney v. Watts, 14 Wend. 38.) Chancellor Walworth in Tone v. Brace, (8 Paige, 597,) remarks that but for the authority of Kinney v. Watts he should have been of opinion that the statute did not apply to leases for years, which were mere chattel interests. But I am of opinion that the supreme court were clearly right; and that leases of this description are directly within the letter and spirit of section 140. By 1 R. S. 762, § 36, the term real estate is declared to embrace all chattels real except leases for a term not exceeding three years. And by 2 R. S. 186, § 6, no estate or interest in lands, other than leases for a term not exceeding one year, can be created unless by act or operation of law, or by deed, or conveyance in writing subscribed by the party creating the same. The conveyance in this section mentioned need not be under seal. It is sufficient that it is in writing and subscribed by the party creating the estate. The statute therefore applies to all leases in writing for a term exceeding three years, whether under seal or not.
‘ But independent of the statute there are no words in this lease which have ever been held to import a covenant. It was never held that a mere sale or lease imported a warranty of title in the *285grantor or lessor of real estate, as in the case of personal property. But certain words in the grant or lease at common law were held to amount to covenants, and to constitute a general undertaking to warrant. In the lease before us there is no covenant that the plaintiff had any right to lease, or that the lessee "should quietly hold and enjoy. And I think none would have been implied, at common law. I do not see therefore why the plaintiff does not stand precisely in the same situation that he would, had he conveyed the entire estate by a mere quit-claim or deed of bargain and sale, so far as this action upon the covenants in the deed is concerned. In such a case it could not be pretended that the plaintiff could maintain this action. Hot being liable in any way to his grantee, he would be in no wise injured by his eviction, in contemplation of law. Voluntarily stepping in, and paying the recovery would give him no claim whatever. So here, the plaintiff was under no legal obligation to respond to his lessees, and it is only upon a breach of his covenant to them, and payment of damages consequent thereon, that he has the right to go back and maintain this action of covenant upon any covenant in a prior conveyance running with the land.
[Cayuga General Term, June 7, 1852.Selden, T. R. Strong and Johnson, Justices.]
Whether the lessees of the plaintiff, who were evicted, were assignees of the covenant of warranty and quiet enjoyment in Ryerss’ deed, so as to have enabled them to maintain an action for their breach, and if so what damages they would be entitled to recover, are questions which need not now be considered. It is sufficient here that there was no covenant to be broken between the plaintiff and his lessees, and that he was in no way-accountable to them by reason of the eviction; consequently the law gives him no right of action upon the covenant in Ryerss’ deed.
The report of the referee must therefore be set aside.