delivered the opinion of the Court.
This is an action of covenant broken, assigning a single breach upon the covenant of warranty. The breach assigned, is an eviction by Messrs. Campbell and Merihue. He, (the plaintiff,) states a deed from Sawyer to him, containing this covenant of warranty, and dated April 20th, 1809. This, it seems, was a mortgage deed, but rendered absolute by a decree of foreclosure. It appears also, that the plaintiff, on the -21st of May, 1811, conveyed the premises to one Thomas Dixon. Also, that Dixon, in the year 1817, finding Campbell and Merihue in possession of the premises described in said several deeds, brought an action of ejectment against them, which was decided in favour of said Campbell and Merihue, in July, 1821. These dates are, probably, unimportant, except in reference to the grounds of the recovery in the action Dixon vs. Campbell and Merihue. The defendant, Sawyer, has plead, that he had not broken his covenant:. and that is treated, by both the parties, as a general issue. This is not the general issue; but is always pleaded in bar. The general issue, in this case, would be non est factum. This irregularity is noticed, though not very important, upon the grounds taken by the Court.
The plaintiff obtained a verdict, and the defendant moves for a new trial, and urges his motion on grounds apparent in the exceptions allowed by the judge. It appears, by the case, that a record was produced by the plaintiff, to show the recovery, by Campbell and Merihue, against Dixon, which was admitted in evidence as was also testimony showing by what ti~ *157tie said Campbell and Merihue recovered. This became neceasary for the plaintiff, because, that fact did not at all appear by the record. Upon the investigation of this point, it appeared that Dixon made out his title to the premises sued for, by showing a title, by possession in the year 1800, good by the statute of limitations, in Fullsom, and a good paper title from Fullsom through Hazen, Sawyer and Phelps, to himself. That Campbell and Merihue then set up in themselves a title by possession, under the statute of limitations. Now, the Court are not prepared to say, that a title by adverse possession, is not as good as any other title, to operate as an eviction of the plaintiff, or his assignee; and also, as a breach of the covenant of warranty in the deed from Sawyer to Phelps: but for this purpose, it must be a subsisting title, at the date of Sawyer’s deed to the plaintiff. But, upon reference to dates, it appears probable that this title accrued afterwards. It seems that Dixon showed title in Fullsom, by the statute of limitations, in the year 1800; and Sawyer shows a deed from Fullsom to Hazen, dated February 17th, 1800 : and Gordon testifies, that Fullsom and Hazen both lived on. the premises till Hazen died, and that Fullsom lived there afterwards. There could be no presumption, that this possession was adverse to the title that came from the same persons to the plaintiff. And if the proof of a writing from Sawyer to Hazen should have the full effect contended for, in showing Hazen to possess in his own right, and adverse to Sawyer, that writing was dated, in 1801 or 1802. Possession, commencing at that time, could not become a title till the year 1816 or 1817, which must have been six or seven years after Sawyer gave the deed upon which this action is brought. Such an inchoate possessory title, growing into a¡ title during the plaintiff’s neglect to eject those in possession, can never be considered the foundation of such an eviction, as would be a breach of this covenant of warranty. The defendant warranted against all claims. This means, all claims then existing, which are valid to hold the land. Such a title as this above described, cannot be viewed as an elder and better title, than that of the plaintiff. It is much younger; and by gradual encroachment has obtained the ascendancy. The record of itself can have no force as against the defendant, who was no party to it, nor cited in as voucher; especially, as it appears there were questions of law reserved, which were never decided. For the use the plaintiff would now make of this record, Dixon might as well have entered a nonsuit, and let judgment pass in that way. The Court can, therefore, see no way in which this record of a recovery by Campbell and Merihue, with the proof of the grounds on which that recovery was had, can amount to an eviction, so as to charge the defendant on his covenant of warranty.
But the charge of the Court refers to the adverse possession, if any there was, at the time of Sawyer’s giving this deed to Phelps, as being itself a breach of this covenant of warranty. In this, the charge was incorrect. Had Sawyer given his deed *158with a covenant, that he was sole owner of the premises, and had good right to convey, and the breach had been assigned upon such covenants, this charge would have been correct; for Sawyer could have no right to sell, while any person was in possession adverse to him. Again, if the suit, Dixon against Campbell and Merihue, had passed to a regular judgment upon all points raised, and it had been proved on the trial of this action, that Campbell and Merihue recovered in that action, on the ground of such adverse possession rendering void the deed from Sawyer to Phelps, that would have been an eviction that should be considered a breach of this covenant of warranty. In such a state of things, this part of the charge would have been correct. But it appears that the plaintiff’s title was good, and stood without objection, till the title set up by . defendant in himself prevailed.
Albert G. Whittemore and <7. C. Thompson, for the plaintiff. B. Turner and B. H. Smalley, for the defendant.■ The Court consider the action is brought by the proper party. If there is any breach, connected with the evidence in the case, it must have existed before the plaintiff deeded to Dixon: and Dixon could not sue for such a breach.
Without noticing each point of the charge separately, or the charge upon each Doint, on account of the errors in admitting and charging the jury upon the adverse possession, and the record introduced to show an eviction,
A new trial is granted.