— In Copeland v. McAdory, 100 Ala. 553, which was an action for the breach of the covenants in a deed against incumbrances, that the grantors had a good right to convey, and the general covenant to warrant and defend, it was held that the covenant of good right to convey is the equivalent of seizin, and that the *445covenant of freedom from incumbrances, like the covenant of good and lawful right to convey, is a covenant in presentí, broken, if at all, as soon as made, if there is any outstanding older and better title, or an incumbrance diminishing the value or enjoyment of the land. It has also been held that the effect of the general covenant of warranty in a deed is for quiet enjoyment, to constitute a breach of which, it is not necessary there should be an actual expulsion, for the covenant secures a legal entry as well as the enjoyment of the lands. The covenantee is not required to commit a trespass to acquire possession. — Caldwell v. Kilpatrick, 6 Ala. 60 ; Anderson v. Knox, 20 Ala. 156 ; Thomas v. St. Paul’s Church, 86 Ala. 144. Under the proofs in this case, then, it is undeniable, that the plaintiff’s covenants of seizin, of good right to convey, and against incumbrances, in the plaintiff’s deed, were broken the moment of the delivery of the same by defendant to him, and that he is entitled to at least nominal damages.
But,the main question in this case, is, whether-the title which the defendant acquired from West, its first grantee — acquired before this suit was brought, — inured to the benefit of the plaintiff, its second grantee, of the lot sold, and the effect of such after acquired title on the right of plaintiff to damages in this action.
In Chapman v. Abraham, 61 Ala. 114, it was said : “It is settled in this State that if one, having at the time no title, convey lands by warranty, — even the warranty which the law implies from the employment of the words grant, bargain, sell and convey, — and afterwards acquires title, such title will inure and pass eo instanti to his vendee. This, by a species of estoppel. — Blakeslee v. M. L. Ins. Co., 57 Ala. 205; Carter v. Doe, 21 Ala. 72, 91; Stewart v. Anderson, 10 Ala. 504 ; McGee v. Eastis, 5 Stew. & Por. 426; Kennedy v. McCartney, 4 Port. 141. ” It may be inquired, what is the effect of such a title inuring by way of estoppel to the grantee? Devlin in his work on deeds, lays down the proposition, supported by a vast array of authorities, that “Where covenants for title are contained in a deed, the after acquired title will pass with the same effect as if it had originally been conveyed to the grantee and his successors.” — 2 Dev. on Deeds, § 946. Chancellor Kent, in his commentaries, in speaking of this estoppel, goes further than some authorities, and *446says : “The estoppel works an interest in the land. An ejectment is maintainable on amere estoppel. If the conveyance be with general warranty, not onty the subsequent title acquired by the grantor will inure by estoppel to the benefit of the grantee, but a subsequent purchaser from the grantee, under his after acquired title, is equally estopped, and the estoppel runs with the land.”. 4 Kent. 98. To the same apparent effect, at least, see Bean v. Welsh, 17 Ala. 772. Washburn, after stating that the measure of damages for the breach of the covenant of seizin, with few exceptions, is the purchase money and the interest, says : “An .exception to this rule prevailed where one, not seized conveyed with covenants of seizin and warranty, and then acquired a title to the estate; for then as this inured by force of the covenants of warranty to the benefit of .the grantee, it was held that he could no longer maintain an action to recover back the purchase money.” Citing Baxter v. Bradbury, 20 Me. 260, and King v. Gilson, 32 Ill. 356. In the first named of these cases, it is held that the after acquired title inures immediately to the grantee by way of estoppel, and he can not elect to reject the title, and recover the consideration money paid in an action for breach of the covenant of seizin. The court say, quoting from Somes v. Skinner, 3 Pick. 52 : “That the general principle to be deduced from all the authorities is, that an instrument, which legally creates an estoppel to a par tv undertaking to convey real estate, he having nothing in the estate at the time of the conveyance, but acquiring a title afterwards by descent or purchase, does in fact pass an interest and a title from the moment such estate comes to the grantor ;” and add : “The plaintiff by taking a general covenant of warranty, not only assented to, but secured and made available to himself, all the legal consequences, resulting from the covenant. Having therefore under his deed, before the commencement of the action, acquired the seizin, which it was the object of both covenants (the after acquired deeds) to secure, h.e could be entitled only to nominal damages.” In the case last cited by Washburn, the Supreme Court of Illinois reviewed many cases on the subject, including the case from Maine, just referred to, to which it gives full sanction, and conclude, that the exception to the general rule as to damages in such cases, *447is based upon the fact, that when the covenant is taken, the covenantee pays the money with the design of acquiring title to the land, and not to make a loan, and when he has obtained what he purchased, he has sustained no injury. Technically there has been a breach of the covenant, for which the law gives a right of recovery, but having the title for which he contracted, he can only recover nominal damages ; citing Cotton v. Ward, 3 E. B. Monroe, 304 ; Reese v. Smith, 12 Mo. 344 ; Cornell v. Jackson, 3 Cush. 506; Morrison v. Underwood, 20 N. H. 369 ; 3 Sedg. on Damages, § 976.
Our conclusion is. that the plaintiff, on the evidence, was not entitled to more than nominal damages, and that the court did not err in setting aside said judgment and giving a new trial.
Affirmed.