This is an action of covenant broken, on the covenant against incumbrances, and the covenant of warranty, contained in a deed of conveyance of land to one Jonathan Barnard by the defendant, which was afterwards conveyed to the plaintiff.
As to the covenant, against incumbrances; it is clear, that this action cannot be maintained thereon. If there has been *128any breach of that covenant, it was broken immediately on the delivery of the deed, and so became a chose in action, which by law was not assignable.
But the covenant of warranty was prospective, and was not broken before the conveyance to the plaintiff; it therefore passed with the land to the plaintiff; and the question is, whether there has since been any breach of that covenant. To prove a breach, it must appear, that the plaintiff has been lawfully evicted or ousted, or has been so disturbed in his title and possession, by a party having a paramount title, as would be equivalent to an actual eviction or ouster. And we are of opinion, that by the facts agreed it does appear, that the plaintiff has been so disturbed, as in principle is equivalent to an actual ouster.
We think this case cannot be distinguished from the cases of Hamilton v. Quits, 4 Mass. 349; Sprague v. Baker, 17 Mass. 586; and White v. Whitney, 3 Met. 81, 89. In these cases, it was held, that where a party having a paramount title threatened to enter and expel the covenantee, and the covenantee yielded to the claim, against which he could not defend himself, it was a breach of the covenant of warranty. “ There is no necessity for him,” as Parsons, C. J., remarks, in Hamilton v. Quits, “ to involve himself in a lawsuit to defend himself against a title, which he is satisfied must ultimately prevail.”
And this case we think depends on a similar principle. The premises were offered for sale at public auction, and if the plaintiff had not become a purchaser, he had a right to presume that he should be dispossessed by the purchaser, and he was justified in acting upon that presumption; and the defendant could not be thereby injured, for undoubtedly if the plaintiff had not become a purchaser, he would have been evicted, if he had refused to yield possession; and in such case the defendant would be responsible for the costs of suit, in the action against the plaintiff, as well as for the value of the land, if duly notified of the pendency of the action.
Several cases have been cited, which have been decided in New York, in which a different doctrine has been held, unless there is a distinction between a covenant for quiet possession, *129and the covenant of warranty, which there was held to be in Hall v. Dean, 13 Johns. 105. But however this may be, we consider the law well settled in this commonwealth, and we see no reason for adopting the doctrine laid down in the cases cited from the New York reports. The question is, whether in all cases, a party must wait until he is actually evicted or ousted, before he can have the benefit of the covenant of warranty. We hold that there may be other acts of the party having a paramount title, which may be equivalent to an eviction. In the case of Duvall v. Craig, 2 Wheat. 45, it was held, that if a grantee is unable to obtain possession, in consequence of an existing possession or seizin by a person claiming or holding under an elder title, it is equivalent to an eviction. And so we think, if the grantee is in possession, and a claim is made on him, by a party having a title against which he is unable to defend himself, he may yield to a dispossession, or purchase in the paramount title; and the present case, we are of opinion, depends on a similar principle*
Judgment for the plaintiff.
See acc. Loomis v. Bedel. 11 N. H. 74.