delivered the opinion of the court. It is well settled, as a general rule, that in actions of covenant, breaches may be assigned by negativing, generally, the words of the covenant. There can be no doubt that the breach in this case is Well assigned in the declaration. The plea, in averring seisin and lawful right in the defendants generally, was good; although the defendants might have set forth in their plea the source and chain of their title, if they had been desirous of presenting on the record any question of law which might be involved in it.
It remains then to be considered, whether the replication, which in general terms reiterates the breach assigned in the declaration, is liable to just exception.
In the case of Marslon v. Hobbs, (2 Mass. Rep. 433.,) Ch. J. Parsons, in laying down some abstract propositions- on this branch of the law, says, “ the defendant, in his bar, should regularly maintain bis seisin ; and then the plaintiff, in his replication, should aver who, in fact, was seised.”
That case, however, presented a question of evidence merely, and not a question oí pleading. There was no replication; and the reporter says, that “ issues, in fact, were joined on two several pleas in. bar; and on each issue the question was, whether the defendant was seised of the premises in fee simple, at the time of executing the deed declared on.”
It is worthy of remark, too, that the covenant in that case was, that the grantor “was lawfully seised in fee, and had a good right to convey.” In the case now before us, the grantors covenanted that they were “ seised of an indefeasible estate of inheritance in fee simple,” &c.: and Ch. J. Parsons, in that case, lays much stress on the distinction between the two cases.
The decisions in Bradshaw’s case, (9 Co. Rep. 60. b.) and in Ihe cases of Muscot v. Ballet, (Cro. Jac. 369.) and Glinister v. *253Audley, (Sir Thos. Raym. 14.,) appear to me to give the rule which must govern this case.
The case of Glinister v. Audley was like this in every essential feature. It was an action of. debt on a bond for performance of covenants; the defendant craved oyer, by which it appeared that he had covenanted that he was seised of an indefeasible estate in fee simple; and he pleaded performance of that covenant. The plaintiff replied, that the defendant was not seised of an indefeasible estate in fee simple; to which replication the defendant demurred; and it was resolved, that the breach was well assigned, and judgment was given for the plaintiff. (2 Saund. 181. a. n. 19.)
The marked distinction between a covenant of seisin, andA those for quiet enjoyment and general warranty, consists in this, / that the covenant of seisin, if broken at all, must be so at the \ very instant it is made; whereas, * in the latter covenants, the breach depends upon the subsequent disturbance and eviction, I# which must be affirmatively alleged, and proved, by the party / complaining of the breach.
A grantor, who gives either of those covenants, is not bound to deliver to his grantee the prior deeds and evidences of his title. Here the defendants covenanted that they had a good title. The legal presumption, therefore,.is, that they retain, or can produce, the evidence of that title, if any. The grantee relied on that covenant; and until the grantors disclose their title, he holds the negative merely, and is not bound to aver or prove any fact in regard to an outstanding title. Prima facie, the grantee is to be presumed ignorant of the real state of the title. The grantors are not bound, unless by suit, to explain their title. It is enough that the grantee suspects the grantor’s title to be defective : he is not bound to wait in suspense until by possibility he can find out in whom the title really is.
The grantors have asserted in their deed, that the title was in them. If that be true, they can show it: if it be untrue, then the covenant is broken; and it is perfectly immaterial whether the real title happens to be in one stranger or another. The grantors have no right to shift the responsibility from their own shoulders, by imposing it on the grantee, to aver and prove, at 'his peril, any particular outstanding title.
All that is incumbent on the plaintiff is to negate the title of the defendants, who plead, affirmatively and generally, that they *254had a good title; and the general replication in this case is sufficient. '
This differs from the class of cases where the plea avers a general performance of the covenant; and then the plaintiff is required in his replication to specify wherein the breach has been committed: for instance, in an action of covenant for not repairing a leased messuage, the declaration may assign the breach generally, that the covenantor did not repair, &c;; the defendant may then plead generally a performance of his covenant; and the plaintiff then is required, in his replication* to specify wherein the repairs have been omitted, in order that the defendant may be apprised, with reasonable certainty, what is the object of the suit. The reasons for requiring such a special replication are, 1st. That the subject to which the covenant relates, is perfectly known to the party complaining of the breach ; and, 2dly. The suit has a more general aspect; and the subject of the breach is multifarious. Therefore, the law in such case, most reasonably requires the replication to specify that a chimney has fallen down; that the windows are broken; that the barn is unroofed; or that the fences are prostrate, &c. In this case, the point in controversy is single and abstract. The question is, merely, whether the defendants had an indefeasible title? and the only evidence in relation to that title may be exclusively in the power of the defendants.
To say, that in such a case the grantee must wait until he is evicted, and thereby incur the hazard of the insolvency of his grantor, would, in many cases, consign an honest purchaser to ruin. It must be understood that we decide the question of pleading only, without expressing a definite opinion as to the evidence .which may be requisite to maintain the defendant’s plea of seisin, &c. There may, perhaps, be ground for a solid distinction between a case where the covenant of seisin is accompanied by a transfer of actual possession, and a case where the premises are, in fact, vacant. The plaintiff is entitled to judgment on the demurrer.
Judgment for the plain tiff (a)
In tlie case of the administrators of Sebeer v. Kimball, the same questions arose ojd de=- • tourrer, and judgment was given for the plaintiffs.