The opinion of the court was delivered, January 9th 1872, by
Sharswood, J.We agree entirely with the zealous and able counsel for the defendant in error, who say, in their printed argument, that this case presents a single point: “ Can an action be sustained by John W. Scott against the executor of John Scott, upon the covenant of John Scott, made the 22d day of November 1849, which was broken by John Scott in his lifetime, and fully performed and kept by John W. Scott on his part ?”
The covenant referred to, that upon which this action is based, is contained in an instrument of writing, which, though in form a deed, was held by this court, in Turner v. Scott, 1 P. F. Smith 126, to be a last will and testament, and, therefore, ambulatory until the death of the testator, and revocable and actually revoked by his subsequent will, dated February 2d 1861.
How can an action be sustained on a revocable and revoked instrument ?
It is settled, indeed, by the best authority in the law, that an ex*248press warranty cannot be created without a deed, and a will in writing is no deed, and, therefore, an express warranty cannot be created by will: Coke’s Litt., 386 a. If a warranty cannot be so created, it follows that a covenant of warranty cannot; for the one necessarily follows the nature of the other. But even admitting that there was a subsisting covenant, there was no breach of it by John Scott, which would subject him to an action upon it, in his lifetime, or his executors after his death. By the very terms of the instrument he had the right of possession during his life, “it was in no way to take effect until after the death of the said John Scott.” To sustain an action upon a covenant of warranty, there must be either an actual or constructive eviction by title paramount. The learned judge below, in his answer to the defendant’s fourth point, instructed the jury that the will and deed of John Scott, made subsequently to the 22d November 1849, was a breach of the covenant contained in the instrument dated November 22d 1849. No authority has been or can be cited to support the position that a deed or will subsequently made by a grantor is itself a breach of the covenant of warranty contained in his conveyance, more especially when such deed or will is a lawful act.
All the authorities are the other way: Clark v. McAnulty, 3 S. & R. 364; Paul v. Witman, 3 W. & S. 407; Rawle on Covenants of Title 240.
Judgment reversed.
Agnew, J., dissented.