Éy the Court,
Savage, Ch. J.The defendant contends that the plaintiffs are not entitled to recover, in the first place, because the declaration is defective, and secondly, because the facts do not warrant a recovery, even if the declaration was sufficient.
In the case of Foster v. Pierson, 4 T. R. 617, the declaration was for a breach of the covenant of quiet enjoyment. The breach was, that J. B. Pierson, at the time of the conveyance, had lawful right and title to the premises, and having such lawful right, entered and expelled the plaintiff from the possession. The defendant demurred to this declaration, and shewed for cause, 1st. That it did not appear that J. B. P. had establishlished or shewn his right to the premises; and 2d. That it did not appear that the entry of J. B. P. was under legal process. Lord Kenyon held the declaration good, because certain to a common intent,- for it stated, that at the time of the conveyance, and of the eviction, J. B. P. had .lawful right, and having such lawful right, entered; which was equivalent to saying, that having lawful right, he entered; the other objection was waived, The other judges agreed that it was equivalent to saying that he entered by lawful title. In Greenby & Kellogg v. Wilcocks, 2 Johns. R. 1, it was objected to the declaration, that the plaintiffs omitted to state the manner of expulsion, whether by laioful title or not; and the whole court agreed that the manner of stating the eviction was bad. Spencer, justice, says : “ The eviction stated in the declaration does not appear, nor is it averred to have taken place by process of law nor that the ouster was committed by any person having right or superior title.”
In Waldron v. M’Carty, 3 Johns. R. 471, which was an action for a breach of the covenant for quiet enjoyment, the allegation in the declaration was, that there had been a foreclosure in chancery upon a mortgage older than the conveyance to the *plaintiflj and the plaintiff was obliged to purchase the premises, to prevent being ousted. . Spence?-, justice, said; “ After a *285full examination of the cases, we do not find one where an actionof covenant has'been brought on a covenant for quiet enjoyment, in which it is not expressly alleged that there was an entry and expulsion from the premises ; it is not enough to allege a lawful title superior to the one conveyed,” and the conclusion was, that the covenant for quiet enjoyment is not broken by any other acts than an entry and eviction, or a disturbance of the possession itself. In Kortz v. Carpenter, 5 Johns. R. 120, the breach of the covenant was, that at the date of the deed to the plaintiff, and long before, the premises were adversely, by lawful title, possessed and enjoyed by the proprietors of the Hardenburgh patent. On demurrer, the court said: “ It appears to be a technical rule, that nothing amounts to a breach of this covenant but an'actual eviction, or disturbance of the possession of the covenantee.” In Kent v. Welch, 7 Johns. R. 258, the court said: “ That before there can be any remedy upon either covenant, (an implied warranty, or an express warranty,) there must be a lawful eviction averred and shewn.” In Vanderkarr v. Vanderkarr, 11 Johns. R. 122, the court say : “ It is a well settled rule, that under a covenant of warranty the plaintiff must shew a lawful eviction, in order to maintain his action.
In the case of Kerr v. Shaw, 13 Johns. R. 236, the action was assumpsit, upon an agreement that the plaintiff should hold peaceable possession of a certain farm. The court consider it equivalent to a covenant for quiet enjoyment, provided a consideration had been stated in the written agreement, and say, “ this covenant is broken only by an eviction or actual ouster; and after referring to the cases of Waldron v. M’Carty and Kortz v. Carpenter, it is added: “In the case before us there is to be seen a judgment against the plaintiff, and nothing wanting but a writ of possession to constitute a breach of the promise. But this being a technical rule, applicable to this covenant, the covenantee ought not to stop short of an actual ouster, if he means to rely upon his covenant; he has no right to make any compromise until an actual breach has been shewn.” These cases have recently been adverted to as, establishing the rule on this point. Lansing v. Van Alstyne, 2 Wendell, 565.
*286From this review of the cases, it is clear that the first count jn tjje declaration is altogether defective. It states a mere trespass, and contains no averment that Lawyer had title, or entered under pretence of title. The second count is also defective: it states, indeed, that on the 27th of April, 1823, Lawyer, lawfully claiming 47 acres, commenced an action, but it does not state that at the date of the conveyance, to wit, the 23d of April, Lawyer had any .claim, and non constat but he derived title from the plaintiffs; it states a suit and recovery in the common pleas, in an action of trespass against the plaintiff and notice of such suit to the defendant, but an eviction in terms is not stated. According to the preceding cases, the plaintiffs should have averred 'that Lawyer, before, or at the. date of the covenant, had lawful title, and by virtue of that title entered and ousted the plaintiffs ; or, if they chose to state the facts specially, they should have stated all that would be necessary in evidence to constitute an ouster. And according to the case of Kerr v. Shaw, even a judgment in ejectment would not be sufficient, without likewise shewing the execution of a writ of possession under it. Both counts of the deduration are therefore bad.
The Court, however, gave leave to the plaintiffs to qmend their declaration, upon payment of the costs of such amendment; and on the case made, ordered a new trial, with costs to abide the event, holding that the judge at the circuit erred in not requiring the written proceedings before the justice to be produced ; that the record of the recovery in the common pleas ought not to have been received, because variant from that set forth in the declaration ; and that the declarations of the agent of the defendant, not acting within the scope of his authority, were inadmissible, inasmuch as he was a competent witness, and ought to have been called; and in answer to an objection, that the jury erred in allowing, in their estimate of damages, the one half of the consideration money, when it appeared that the plaintiffs were disturbed in ’ the possession of but 31 out of 147 acres of land, the court were of opinion that the jury did right, inasmuch as it appeared that the 31 acres were equal in value to the residue of *287the land conveyed, and as the increased price obtained by the plaintiffs on the sale of their interest in the land might have been owing to a rise in the value of the property, or to the fact of improvements made by the plaintiffs.