By the Court,
Savage, Ch. J.The rule as to the assignment of breaches on the various covenants in a deed is briefly and correctly stated by Chancellor Kent. 4 Kent's Comm. 479, 2d ed. In the covenant of seisin it is sufficient to allege the breach, by negativing the words of the covenant. The same rule must also apply to the covenant that the covenantor has good right to convey. This has been called synonymous with the covenant of seisin ; it certainly follows, as a necessary consequence, that a person who is seized has a right to *422convey the estate of which he is so seized. But the covenant for quiet enjoyment and of general warranty require the assignment of a breach by a specific ouster, or eviction by paramount legal title. It is not necessary to state all the facts which in evidence constitute an eviction ; but a declaration stating the facts specially would certainly be good.
It is objected to the declaration in this case, that the breach of the covenant of warranty in the second and third counts is not well assigned. Had the assignment been made in general terms, that Kline, having superior title at the time of the execution of the deed, entered by virtue of due process of law and evicted the plaintiff, there could have been no objection to it. Is it not sufficient then, in point of form, to state specially that legal proceedings were instituted by a person having paramount title to the possession, and that by virtue of those proceedings, the plaintiff was evicted and turned out of the possession ? I am inclined to think it is. There are in these counts many bad breaches, and most of the special breaches are wanting in technical precision; but I think those objected to are sufficient. If they are not, there is a good breach under the covenants of quiet enjoyment and warranty in the fourth count, and the evidence is applicable to it. Judgment, therefore, should not be arrested.
But the principal question raised and discussed on the motion in arrest, is whether the proceeding set forth is one constituting an eviction within the meaning of the covenant. It is argued that the defendant is not to be answerable for trespasses committed by the plaintiff. That is true ; but the fair construction of the whole breach is, that the plaintiff was lawfully turned out of the possession which had been lawfully taken by him under the deed from the defendant. The covenant of warranty extends as well to the possession as to the title, and if a grantee loses possession of the premises granted, he surely has a remedy under this covenant. It is true that the proceedings for a forcible entry and detainer do not involve the question of title, but only the possession; and there can be no doubt that a person entitled to the possession, a lessee for instance, may recover the possession in this manner *423from the person owning the fee. I am of opinion, therefore, that judgment should not be arrested.
As to the motion for a new trial on the bill of exceptions, the first question is, whether the record of conviction was properly received in evidence 1 That record stated that Kline had been lawfully possessed of a certain lot for a term of years, and so continued until the plaintiff Rickert forcibly entered and put him out. On the trial of that indictment the defendant was found guilty of forcible detainer. The record proved that Kline was tenant for years of certain premises ; that the plaintiff obtained possession peaceably, and forcibly retained that possession ; the judgment of the court was that the possession should be restored, and it was restored. This was proper evidence; not to prove a breach of the covenant of seisin, but to shew a disturbance in the possession, an ouster of the plaintiff from part of the premises conveyed, and as the defendant had warranted to the plaintiff the quiet and peaceable possession, a loss of that possession under legal process was a breach of the warranty.
Several questions were raised upon the items of the plaintiff’s damages. The taxed costs included in the record were certainly proper, if the record itself was properly admitted. The costs of the defence and of counsel fees were also proper, if the plaintiff’s declaration was sufficient to admit them. The plaintiff in his declaration claims damages generally, and surely should be permitted to prove those damages which were necessarily consequent upon a prosecution against him, and his defence against that prosecution.
The plaintiff was permitted to recover the whole value of the land ; this was wrong. The record did not shew that Kline was seized of the premises which he recovered, but on the contrary, that he was possessed of a term ; the extent of that term, and the annual value or the interest of the purchase money should have been the rule of damages. The plaintiff’s counsel justifies the decision of the circuit judge, on the ground that a breach of the covenant of seisin had been proved. In that case the rule of damages assumed would have been correct; but the evidence went to the possession, not to the right *424of property. The evidence of the extent of Kline’s term which was rejected ought therefore to have been received. The defendant then offered to shew by parol that the plaintiff both before and after the execution of the deed to him had recognized the existence of Kline’s term in the 3 acres, 2 roods and 38 perches. This the judge rejected. It is well established that parol declarations cannot be received to control or vary the terms of a written instrument. It Would have been improper, therefore^ to have shewn by parol that the deed was not intended to cover those three acres, or that they were to have been excepted out of the deed ; but the evidence to shew by parol the recognition of an interest in lands created by parol, ought to have been received. At that time a parol lease for three years was good. If there is any well founded objection to this evidence before the execution of the deed, there is none after it. When the deed was executed I will suppose it conveyed to the grantee absolutely the land in dispute ; it was competent then to prove that he had leased it to Kline by parol for three years, and such evidence must be by parol. If the lease is by parol, it follows that the proof of it must be by parol. It was decided in the case of Kline against the present plaintiff, 8 Cowen, 226, that an absolute conveyance transfers the interest of the grantor only; and when a parol lease existed anterior to such conveyance, such lease was good, as against the grantor and his assigns. It was a legal estate, and a parol recognition of such estate is binding upon the plaintiff. A new trial should be granted, costs to abide the event.