delivered the opinion of the Court. The pleadings in this case are voluminous, but the merits are embraced in a very narrow compass. The plaintiff declares as the assignee of one Abel Thorp, in an action of covenant broken, upon a deed of conveyance from the defendant to said Thorp, with the usual covenants of seisin and warranty. The defendant pleads, that at the time of executing the deed declared on, he was not seised-of the granted premises, but *171that Abigail, Maria, Levina, Angelina and Luanna Sparks were seised of the same, and so that his covenant of seisin was broken at the time of the execution of his deed. This plea was traversed, and the jury have found, that the defendant was not seised ; and this, we think, is decisive against the plaintiff’s right of action ; and the supposed mistake in the deed becomes unimportant.
It has been argued, that the defendant is estopped to deny his seisin ; whether he would have been estopped to show his liability to the grantee, in order to defend himself in this action, if the plaintiff had pleaded the estoppel, is a question as to which there may be some doubt, but which we do not stop to consider ; for however that may be, it is quite clear that the plaintiff, by taking issue on the fact as to the defendant’s seisin, has waived the estoppel, and is now concluded by the finding of the jury. The estoppel appearing on the record makes' no difference, although the plaintiff might have availed himself of the advantage on demurrer ; Kemp v. Goodal, Salk. 277 ; but the fact being established by the jury, we are bound to give judgment according to the truth, as it appears of record. The principle is laid down in Trevivian v. Lawrence, Salk. 276, and is a familiar principle of the common law. If the defendant pleads the special matter on which he relies, and the plaintiff will not rely on the estoppel when he may, but takes issue on the fact, the jury shall not be bound by the estoppel, but shall find the truth, and the Court shall give judgment accordingly.
This point being established, it is perfectly well settled that no action will lie on this contract in the name of an assignee. By the breach of the covenant of seisin an action accrued to the grantee, which, being a mere chose in action, was not assignable, Bickford v. Page, 2 Mass. R. 460.
Judgment for the defendant