The opinion of the court was delivered by
Kennedy J.Samuel Patton, the plaintiff in error, by his deed bearing date the 24th of July, 1821, conveyed in fee simple to James M’ Farlane, the defendantin error, 200 acres and eighty five perches of land, with a covenant of general warranty. Patton held the land under a location and survey in the name of William Cochrane, but had never paid to the Commonwealth the purchase money due to her, which was a charge upon the land, and obtained á patent for it.
Upon the 10th of September, 1821, M’Farlane paid to the Commonwealth two hundred and twenty-eight dollars in full of the purchase money, as also the further sum of fourteen dollars and fifty-cents for the patenting fees; and a patent was thereupon granted to him for the land.
This suit is an action of covenant, and was brought by the defendant in error against the plaintiff in error, to recover the money which he had paid in prder to have his title to the land perfected, and to obtain a patent for it from the Commonwealth.
The decláration, after reciting the deed of conveyance from Patton to M’Farlane, and the covenant of warranty, set forth the facts *422ofthelegal title to-theland being in the Commonwealth at the time of making the conveyance, and her claim to the money which waspaid by M’Furlane, without which, a legal and good title could not have been obtained, and then assigned the neglect and refusal of Patton to pay this money to the commonwealth, and to procure a patent for the land, as a breach of his covenant of warranty.
Several errors have been assigned in this case, but the only question to be solved is this: Is it necessary in order to maintain an action of covenant for a breach of warranty of title, to allege an eviction, in the declaration, and to prove it, or what may be considered equivalent to it, on the trial of the cause?
In ancient times, it was usual to annex a warranty to the conveyance of lands, by which the grantor for himself and his heirs undertook to warrant and defend the same to the grantee. By the feudal constitution, if the vassal’s title to enjoy the feud was disputed, he might vouch or call the lord or donor to warrant and insure his gift; which if he failed to do, and the vassal was evicted» the’lord was bound to give him a feud of equal value in recorm pence, 2 Black. Com. 300; since that, however, a different mode of obtaining this object has been resorted to and adopted, by inserting in deeds of conveyance and of grant, what are usually called covenants for title. This invention has been ascribed to Sir Orlando Bridgeman, 3 Pow. Conv. 205 Platt on Cov. 304. This last author says “the simple means they presented of carrying into effect the various intentions of parties, and the facility with which they were accommodated to the circumstances connected with titles, soon occasioned their general use in practice.” ,
Of these covenants tor title, there are five in number: 1. That the vendor is seized in fee. 2. That he has a good right to convey. 3. That the purchaser and his assigns shall quietly enjoy. 4. For indemnity against incumbrances; and 5th, for further assurance.
If a recovery in this case, upon the covenant of general warranty, can be supported without either allegation or proof of an eviction, it would, in effect, be deciding, that the covenant of general warranty, contains within it, each of these five covenants, which would be a novel idea to conveyancers and professional men. Because I cannot conceive of any defect or objection that can be discovered which may affect either the possession, or the sufficiency of the title, to invest the vendee completely with the estate professed to be conveyed, that may not, with as much propriety as the present case, be embraced in, and considered as provided against by the covenant of general warranty, and an action supported for a breach of it, without either averring or proving an eviction. It comes to this, that the covenant of general warranty may either be considered as a covenant of seizin, of good right to convey, of *423quiet enjoyment, of indemnity against incumbrance, or further assurance, as may best suit the wishes of the vendee. But it has been decided by the Supreme Courtof the state of New York, when composed- of judges alike distinguished for their talents and legal intelligence, that a general warranty contained no covenant of seizin either express or implied. Vanderkarr v. Vanderkarr, 11 John. Rep. 122. It was the inaptitude of the covenant of general warranty to accommodate itself to the various intentions of the parties, as well as the circumstances connected with the titles to the land, that first gave rise to these special covenants, and recommended them to general use; whifeh repudiates the idea of their being contained within it. And Judge Blackstone, in speaking of them, seems to consider them preferable to a warranty, because they are susceptible pf such modification, as to make them either a better or a less security tp the grantee, as may best comport with the intention of the parties, 2. Bl. Com. 304.
The propi’iety of introducing a general warranty, or one or more of these special covenants, and which of them, must always depend upon the agreement of the parties, and the particular circumstances under which the conveyances are to be made. The man "who eoxisiders himself the absolute owner of the estate in fee simple which he is about to sell and convey, and considers himself also as receiving a price for it, that will indemnify him for doing so, may annex all those five covenants to his deed of conveyance. All, however, cannot be necessary in any case. If the covenant of seizin be inserted, it implies a power and good right to convey, and therefore this last need not be annexed. But a man may have a power and authox’ity to sell and convey an estate in fee, without being seized himself, and in such case, it would be proper enough for him in his deed of conveyance, to covenant for his having full power and good light to convey'; although it would be inappi-opriate as well as indiscreet in him to covenant, likewise, that he was seized: because, if he did, it would be a covenant broken as soon as made, upon which he might be sued, although the vendee was -invested by the deed of conveyance which was made to him, with a perfectly good title in fee simple.
That an eviction must not only be alleged, but proved, in order to maintain an action upon a covenant of warranty, I have ever considered a proposition well settled in law. The books of precedents or of pleading furnish no form for a dcelai'ation in such an action, without averring an eviction under an elder and -a better title. Adjudged cases on this subject, as well as the forms of the declaration in them, all tend to prove, that such an allegation must be set forth in the declaration, and full proof made of its truth on the trial. Watton v. Hele. 2 Sound. 177, decided in the *424time of 22 Car. 2, which is considered a leading ¿ase on this subject; and subsequent cases noted by Serjeant Williams in his note to it, evidence this pretty fully. . ...
The principle, I believe, has been recognised or established by the highest tribunal of almost every state in the union. The only exceptions that I have met with, are two cases decided in South Carolina and reported in 2 Nott & M’C. 186, Mackey v. Collins, & Furman v. Elmore, Ibid 139 in note.
But in Kentucky it has been decided, that the plaintiff to recover upon a warranty, must shew an eviction by a par-amount title, not derived from the bargainee. Booker v. Bell, 3 Bibb. 174, and must so aver it in his narr. Stephens v. Pattie, Ibid. 117. So in Tennessee it was held, that the declaration must allege an eviction. 5 Hayw. 100 Crutcher v. Stump. And to the same effect by the Supreme Court of the state of New York, in the cases of Kent v. Welsh, 7 John. Rep. 258, and Sedgewick v. Hallenback, Ibid. 376: and again by the Supreme Court of the United States in Day et als. v. Chism. 10 Wheat. 449. And even in Massachusetts, in the case of Hamilton v. Gretts, 4 Mass. Rep. 349. Whore it was held, that the eviction need not be by judgment of law, but that the warrantee might give up the land without suit: the eviction being alleged in due form in the declaration, And in Marston v. Hobbes, 2 Mass. Rep. 433, it was decided, that it was not sufficient to assign the breach in the declaration, by negativing the words of the covenant, but that it must be done specially, by shewing an oicster by an elder title. And again in Emerson v. The Proprietaries of a Tract of Land in Meriot 2 Mass. 464, an eviction by an elder and better title must be proved. Also to the same effect, in Pearce v. Jackson, 4 Mass. Rep. 408. And to the same effect see Rich v. Waite, Chip. 68, and Williams v. Wetherbee, 1 Aik. 2 33, in Vermont. Such likewise appears to be the settled law of Virginia, see Castleman v. Vetch, 3 Rand 598; and in the State of New Jersey, see Stewart v. Drake 4 Halst. 139. In addition to the cases already cited from New York, I will refer to 2 John. 4, where it is said to be a well settled rule, that under the covenant of warranty, the plaintiff must shew a lawful eviction, in order to maintain his action: and in Woldron v. M’Carty, 3 John. 471, where M. gave a deed of land to W. in w-hich he covenanted that he would warrant and defend W. in the quiet and peaceable possession of the premises. At the time of the conveyance, there was a previous mortgage and a sale of the premises decreed, and W. afterwards purchased th& same at the master’s sale, and then brought his action for a breach of the covenant of warranty for peaceable enjoyment; and it was held that an action could not be maintained on the covenant, until there had been an eviction or actual ouster by a paramount lawful *425title. This last case I consider a vastly stronger case to entitle a plaintiff to recover, if possible, without an eviction, than the one now before the court; because the land was actually exposed to sale, and sold to W. who must inevitably have lost it, if he had not purchased jt.
Although the Commonwealth had a claim against the land in the case under consideration, yet she had taken no step whatever, after the conveyance of it to M’Farlanc, to enforce the payment of the money. When she would have done so, was uncertain; and Patton had a rigid, under his covenant of warranty with M’ Far-lane, to avail himself of all the indulgence that might be given by-delay on the part of the Commonwealth, to proceed against the land, to have the money collectedby a sale of it. Although it may be considered certain that the payment of the money would have been compelled some day or other, yet it might make some difference to Patton whether he was to be called upon immediately, at the will of M’Farlane, for payment, or to have it postponed to a distant day, by forbearance on the part of the Commonwealth to proceed to collect it.
In the last place, as a binding authority upon the subject, we have the decision of this court in the case of Clark and M’Anulty, 3 Serg. & Rawle, 364, where it was held, that without an eviction by an elder and better title, which must be averred in the declaration, and proof made of it on the trial of the cause, a covenant of warranty was not broken, and that there could be no recovery by the plaintiff.
The court below were wrong in charging the jury, then, in this ease, that the plaintiff below was entitled to recover, under the particular circumstances given in evidence without proof of an eviction: and that it was sufficient to state the particular circumstances .in the declaration, which might entitle the plaintiff to recover without alleging an eviction.
I consider that an eviction must be alleged in all cases, althoughit may be supported by theproof of particular circumstances: but it will not do to state the circumstances themselves; the averment must be according to their legal effect. For instance, an eviction might be alleged in the declaration, but, on trial, may be shewn by proof of an elder and better title than that which was transferred by the vendor, and that the vendee voluntarily, upon the demand of him who had such better title, gave up the possession of the land to him. . So in the case of a suit by the holder of a negotiable note against the endorser, it is indispensably necessa-. ry, as I conceive, to aver a demand upon the drawer, and notice given,of the non-payment to the endorser, and this may be prov*426ed by shewing that the endorser, before the note became payable, accepted, from the drawer an assignment of his estate, for the purpose, inter alia, of indemnifying him against his endorsement; which in fact is neither a demand, nor yet notice of non-payment; but in law has the same effect; as it renders the demand andnotice unnecessary. Barton v. Baker, 1 Serg. & Rawle, 334. Smith v. The Bank of Washington, 5 Serg. & Rawle, 321.
Judgment reversed.