delivered the opinion of the court.
Objections have been made to the plaintiff’s right of recovery for any sum. First, it is contended, that by the conveyances to Ketchum, Marshall, Ransom, and Wood, and to Thomas Morris, the plaintiff has devested himself of all right to maintain any action on the covenant for quiet enjoyment. It has been decided in this court, in Greenby and Kellogg v. Wilcox, (2 Johns. Rep. 4.) that a covenant of seisin, broken the instant it was made, could not be assigned. It is a general rule, that where covenants run with the land, if the land is assigned or conveyed, before the covenants are broken, and afterwards they are broken, the assignee or grantee can alone bring the action of covenant to recover damages ; but if the grantor or assignor is bound to indemnify the assignee or grantee, against such breach of covenant, there the assignor or grantor must bring the action. (2 Mass. Rep. 460.) Here the covenant being broken after the conveyance by the plaintiff, his grantees would be entitled to bring the action, were it not for the consideration that he conveyed to the first four named persons by deeds with warranty.
A second objection is taken, that the plaintiff has shown no eviction. It would, no doubt, have been incumbent on the plaintiff to have shown an eviction, if the state of the pleadings had required it, or put it in issue. The plea of non est factum dispenses with the proof of the averments in a declaration founded on a deed. It puts in issue the execution only of the instrument declared on. Under the notice accompanying the plea, the eviction of Ketchum, Marshall, Ransom, and Wood, is not questioned, but the notice denies that William D. Paddock, Charles H. Toll, David Paddock, or Nehemiah Hand, were evicted by any title paramount, or that they, or either of them, had any title to any part of lot 64. There is no evidence that they were, or were not evicted. As the proof of this fact was not thrown on the plaintiff by the form of the pleadings, and as the defendant assumed the proof that they were not evicted, he was bound to give evidence from which that fact could be legally inferred, and I perceive no evidence from which we can draw the inference.
Objections are made to the proof of the facts set up in the *94notice : first, on the score of variance, and, secondly, that the facts thus given notice of could not be pleaded in bar, and, therefore, could not avail the defendant under a notice.
It is true, that the proof does vary from the facts stated in the notice. The notice sets up that the plaintiff conveyed, before the commencement of this suit, all his right and title to lot 64, in Uamillus, to Ketchum, Marshall, Ransom, Wood, and Wil* liam D. Paddock; the proof is, that he conveyed to the four former four hundred acres, one hundred acres to each, and the residue to Thomas Morris. Here, then, is a variance, and a notice must state truly the facts intended to be given in evidence; but I perceive nothing material in this.
The only remaining points are, whether the plaintiff, on the proof given, was entitle'd to recover any damages, and if any, to what amount. There is no evidence that the plaintiff has been subjected to the payment of any of the damages or costs recovered in the ejectment suits. The foundation of the suit is, that the defendant has broken his covenant for quiet enjoyment, and the plaintiff is thereby deprived of his remedy on the bonds and mortgages taken from the purchasers, and is subject to the payment of the costs recovered against his grantees.
If the plaintiff’s grantees have been evicted by title paramount, as to one moiety, and if the right to recover damages therefor did not pass to the grantees, in consequence of the plaintiff’s warranty to them, then, with respect to the consideration money and interest, I do not see that there can exist any solid objection to the plaintiff’s recovery to that amount. The right to recover the costs, in aggravation of the damages, is very questionable, putting out of view the payment of them in favour of the suits, by the defendant, to the persons immediately affected, and who were solely liable for them to the plaintiff in the ejectment suits.
The deed to Morris, for 200 acres of the lot, is a quit claim $ and this deed being before the breach of the defendant’s covenant, the right to recover damages, pro tanto, was vested in Morris, and as to that portion of the lot the plaintiff cannot recover. An assignee of part of the estate can maintain the action of covenant pro tanto. (3 Com. Dig. 262. 1 Leo. 250. 1 Lev. 109. Th. Raym. 80. Co. Lit. 385. a. Shepard’s Touchst. 199.) To atfoid circuity of action, a release from the plaintiff’s grantees to the defendant, might have been available, but for the *95mortgages given by Ransom, Marsha.!l~ Ketchum, and Wood. These mortgages re~invested the plaintiff with the seisin of the lands conveyed to them; and, con~equentIy, they could riot release the defendant's warranty, because, in judgment of law, they ceased to be assignees, upon the execution of the mortgages~
The defendant has shown, (and this he might do under the general issue, when the inquiry became a mere question as to the extent of the damages,) that he has paid the costs to the in the ejectment suits, and, therefore, the plaintiff cannot be subjected to them; and as to the costs in the other suits, the plaintiff not having shown that he has paid them, I am of that he cannot, recover them. It appears to me that to al-low the plaintiff to recover one sixth part of the consideration money, and six years’ interest, consists with perfect equity. The plaintiff has paid the defendant for the lot; the four have not paid any thing, as it appears they gave which are not stated to be satisfied. To suffer the defend-ant to acquire their releases, for the purpose of defeating the plaintiff’s recovery, might be to defraud the plaintiff out of the money he has advanced. The court are of, opinion that must be given for the plaintiff accordingly, for one sixth part of the consideration expressed in the deed, with six years’ interest.
Judgment for the plaintiff.