Curia, per
Woodworth, J.It is contended that the action cannot be sustained upon the warranty; it being a covenant real, and not binding on the personal representatives of the testator.
Í am not aware that this question has been expressly decided in our courts. Actions have been sustained on the covenant of warranty; but this point seems not to have been raised, or noticed by the court or counsel. The causes were disposed of on other grounds.
*126Thus, in Kent v. Welch, (7 John. 258,) the plaintiff de« dared on a deed, whereby the defendant gave, granted, bargained and sold a tract of land; and engaged to warrant and defend; it was held that no action could be maintained, either on the implied or express covenant, without alleging and proving an eviction; and that the express warranty qualified and restrained any implied covenant of seisin, arising from the word give. From this ease, it may be inferred, that the form of action was not considered objectionable ; or it would have been suggested, inasmuch as the evidence there required, would, under any form of pleading, have been unavailing, if the objection now taken is well founded. So also in Withy v. Mumford, (5 Cowen, 137,) the action was covenant for breach of a warranty. The defendant demurred, on the ground that his grantee conveyed to the plaintiff with warranty. It seems to have been taken for granted, that a personal action was sustainable; for the point was not even discussed^
As this is a fit occasion, I will briefly state iny views'on the question.
At common law, a warranty was the foundation of a voucher, by the tenant, when impleaded ; and if he lost the land, he might have judgment to recover of the war-rantor other lands to the value. It is of feudal origin. According to 2 Bl. Com. 301, warranties were introduced in order to evade the strictness of the feudal doctrine of non-alienation without the consent of the heir. Butler, in his note 315 to Co Lit. 365, a., observes of the doctrine of warranty, that “ the effect and operation of warranties having, by repeated acts of the legislature, been reduced to a very narrow compass, it is become in most respects a matter of speculation, rather than of use.” The use of this covenant is superseded by the introduction of other personal covenants. In many, if not in most cases, there is no occasion for resorting to the covenant of warrant}'. In some, however, it is the only express covenant inserted. With us the remedy by warrantia charlaor voucher. may be considered obsolete. No case of the kind has *127been reported in this state, if any ever existed. The reasons upon which it is founded in England, do not apply here; our tenures being allodial, not feudal. The term warrant, as applied to real estate in that country, having obtained a technical and legal signification derived from feudal principles ; I do not perceive the necessity, so far as regards the remedy or form of action, of understanding the term in the same sense, when used here. If effect is given to such a covenant by action to recover damages, as on a warranty of things personal, I apprehend no principle of law will be violated. Such a construction will, no doubt, correspond with the intention of the parties; while the ancient remedy is inconsistent with what must be supposed to be the intent. That remedy may frequently become' illusory, as where the proceeding is against the heir : the obligation to yield other lands is only on condition that he had other sufficient lands by descent from the warranting ancestor. (2 Bl. Com. 302.) As the right to bring a personal action seems never to have been made a question in our courts ; from the inadequacy of the remedy by war-rantia charla ; from the fact that the covenant of warranty singly, has been generally deemed suff cient, and as giving a remedy by personal action ; and more especially as the reason of the doctrine is foreign to our institutions and laws, I think it may safely be concluded that an action of covenant is sustainable on a deed with warranty.
In Massachusetts, the law has been so considered. In Gore v. Brazier, (3 Mass. Rep. 544,) chief justice Parsons, jn commenting on this subject, observed, that “ the remedy to recover a recompense in other lands, to the value, existed very anciently, when the principal consideration received on the alienation, rvas the services to be performed by the tenant. But when lands were aliened for money, and when the alienor might have no other lands to render a recompense in value, it became expedient that another remedy for the purchaser on eviction, should be allowed.” He further adds, “ It is certain, that before the emigration of our ancestors, the tenant on being lawfully ousted by a title paramount, might maintain a personal ac*128tion of covenant broken, on a real covenant of warranty.” 1 Brownl. 21, and 2 Brownl. 164, 165, are cited, (a) The same doctrine is laid down in Marston v. Hobbs, (2 Mass. Rep. 488.) If this position be correct, then even accords ing to the English law, this action may be maintained ; the grantees having been expelled by lawful right and title.
It follow's that if the covenant is personal, the represen» tatives are liable ; and the grant being to two, who were evicted in their life time, the action is well brought by the survivor.
Judgment must be rendered for the plaintiff; with leave to the defendants to amend.
Judgment for the plaintiff.
Waters v. The Dean and Chapter of Norwich, 9 & 10 Jac. in a per - sonal action of covenant ; on a covenant in a lease by the defendants to the-; plaintiff for three lives. The covenant was to acquit and save the lessee harmless, during the term, against any previous lease by the lessors, or their predecessors, (Vid. 2 Brownlow, 158.) The main question was, whether the covenant was binding, the lease being voidable ; and held that it wtis and'judgment for the plaintiff